Expert Analysis

• Tracking Trends In State-Level Regulatory Enforcement

  

  State-level enforcement now increasingly involves antitrust, artificial intelligence and data privacy issues, and the key for organizations to reducing risk is having the ability to respond across governance, public affairs, discovery and remediation in multiple states simultaneously, say consultants at FTI Consulting.

• Md. Digital Tax Ruling Is A Road Map For Future Challenges

  

  Three Maryland Tax Court rulings that recently struck down the state's digital advertising tax suggest constitutional and statutory vulnerabilities that could be used to challenge newly enacted digital services laws or legislation being considered by other states, say attorneys at Holland & Knight.

• And Now A Word From The Panel: Accessing Key MDL Data

  

  As the Judicial Panel on Multidistrict Litigation convenes for its September hearing session, it is useful to examine the treasure trove of historical and statistical information about MDLs past and present that the panel makes available to the public on its own website, says Alan Rothman at Sidley Austin.

• What Cos. Must Know As Fast Energy Permitting Gains Steam

  

  A recently approved geothermal project in Nevada may be the first authorized by the U.S. Bureau of Land Management under a new 14-day expedited environmental review process — but project developers may find that a more thorough environmental analysis will provide better protection against litigation challenges, says Jill Yung at Allen Matkins.

• Opinion

  Calif. Bill Goes Too Far In Trying To Regulate Attorney AI Use

  

  California’s first-in-the-nation act regulating how attorneys and arbitrators use generative artificial intelligence will likely soon become law, but read broadly, the provisions may dissuade lawyers from employing AI at all, thereby depriving them of key work tools, says Joshua Wurtzel at Schlam Stone.

• The Preemption Gap In Prediction Market High Court Petitions

  

  The Supreme Court is considering three certiorari petitions following a split in prediction market litigation between the Third and Ninth circuits, but one of the petitions would not allow the court to reach the express preemption question, which would leave the dispute half-resolved, says Jordan Garman at Withers.

• Hims & Hers Suit Spotlights Health Data-Sharing Privacy Risks

  

  Regulators' complaint against telehealth company Hims & Hers alleging deceptive practices serves as a reminder that the privacy principles developed under consumer protection laws and predating omnibus statutes remain in force, and sensitive data governance continues to be a crucial component of compliance, say attorneys at Venable.

• 4 Paths To AI Safety Coordination Amid Antitrust Debate

  

  Frontier artificial intelligence companies have more room for collective safety work than the debate over an antitrust waiver suggests, with several existing avenues providing different degrees of protection and oversight, says Evan Miller at V&E.

• 'Demon Hunter' IP Suit Highlights Reverse Confusion Perils

  

  A metal band named Demon Hunter's recently filed lawsuit against Netflix, alleging that consumers mistakenly believe it to be connected to the "KPop Demon Hunters" movie, provides a useful vehicle for examining the reverse confusion doctrine and its practical implications, say attorneys at Troutman Pepper.

• How Calif. Privacy Bill Could Change CIPA Tracking Cases

  

  If California Gov. Gavin Newsom signs S.B. 690, the bill could materially reduce the leverage behind a pen-register-only claim or demand, so California Invasion of Privacy Act website tracking claims should not be evaluated the same way they were six months ago, says Alexandra Samofalova at Spencer Fane.

• 5th Circ. Embedding Decision Could Recast Copyright Claims

  

  The Fifth Circuit's decision in Emmerich v. Particle Media addresses decades of ambiguity surrounding whether embedded content can constitute copyright infringement, potentially affecting how defense counsel fight against such claims, say attorneys at Greenberg Glusker.

• How Cos. Can Avoid Infant Product False Advertising Suits

  

  As lawsuits proliferate over products marketed for infant use and sold at a premium that are identical to cheaper general-use products, manufacturers should review related product lines, and scrutinize contextual cues that may contribute to the overall message received by consumers, say attorneys at Chamberlain Hrdlicka.

• 9th Circ. Ruling Raises Bar For Arbitration Pacts Via Email

  

  The Ninth Circuit's recent holding in Rickes v. Thermo Fisher that the mere delivery of an email doesn't establish an employee's assent to the arbitration agreement underscores that rollout processes should both give employees notice of the agreement and create evidence of their assent, say attorneys at Sullivan & Cromwell.

• How GCs Can Assess The Risks Of Emerging AI Laws

  

  Amid a swirl of momentous legislative activity aimed at regulating artificial intelligence, general counsel must return to first principles when determining whether new laws will apply and whether the company’s use could cause regulators to subject it to additional regulation, say attorneys at WilmerHale.

• How FTC's $20B Amazon Suit May Shake Up Ad Enforcement

  

  Gonzalo Mon at Kelley Drye discusses the significance of the Federal Trade Commission's recent suit against Amazon for allegedly overcharging advertising customers more than $20 billion, the company's potential defenses, and the context of rapidly evolving digital advertising technology.