Expert Analysis

• Wave Of Online Marketplace Laws May Confuse Compliance

  

  A deluge of new California and federal laws applying to online marketplaces and third-party sellers — which aim to keep sellers accountable and protect both consumers and retailers — deserve a critical eye, as slight differences threaten to complicate compliance efforts for e-commerce companies, say attorneys at Sheppard Mullin.

• ACA Anti-Discrimination Rules May Apply To 3rd-Party Admin

  

  A Washington federal court's recent ruling in C.P. v. Blue Cross Blue Shield, where a third-party administrator applied plan rules that excluded gender-affirming care, potentially expands the scope of covered entities under the Affordable Care Act's anti-discrimination rule, say Kara Backus and Allison Jacobsen at Lane Powell.

• 2 Privacy Rulings Highlight Browsewrap Agreement Risks

  

  Companies should evaluate their use of browsewrap agreements and hybridwrap agreements to determine whether changes are appropriate to mitigate legal risk after two federal courts recently found defendants liable in cases that examined the enforceability of terms of use, say attorneys at Crowell & Moring.

• CFPB's Reading Of Lending Act May Affect Home Equity Plans

  

  ​​​​​​​If the Fourth Circuit adopts the Consumer Financial Protection Bureau's arguments in Lyons v. PNC Bank, it would remove one tool issuers of home equity line of credit loans currently have to ensure repayment of outstanding debt on their customers' legacy HELOC accounts, say Ralph Mazzeo and Edward Southgate at Dechert.

• Opinion

  Draft Baby Food Safety Regulations Lack Teeth

  

  The U.S. Food and Drug Administration's recent draft guidance about lead levels in baby food, while long overdue, may actually start to address this decades-old problem — but without actual enforcement powers, the FDA is merely providing a meal that looks good but lacks nutrients, says Vineet Dubey at Custodio & Dubey.

• The Limits Of Arbitration Provisions In The ERISA Context

  

  Although courts have viewed the Federal Arbitration Act as strongly favoring the enforcement of arbitration provisions, two recent decisions from the District of Delaware and the Tenth Circuit demonstrate that arbitration provisions that expressly forbid planwide relief are not likely to be enforced in ERISA cases seeking such relief, says Elizabeth Hopkins at Kantor & Kantor.

• What 5-Year BIPA Time Limit Means For Class Action Defenses

  

  The Illinois Supreme Court's recent Tims v. Black Horse Carriers ruling, which applies the state's five-year torts catchall period to Biometric Information Privacy Act claims, weakens the statute-of-limitations defense and means that defendants could see individual follow-on claims years after resolving class claims, say attorneys at K&L Gates.

• Justices Leave Questions Open On Dual-Purpose Atty Advice

  

  The U.S. Supreme Court's recent dismissal of In re: Grand Jury on grounds that certiorari was improvidently granted leaves unresolved a circuit split over the proper test for deciding when attorney-client privilege protects a lawyer's advice that has multiple purposes, say Susan Combs and Richard Kiely at Holland & Hart.

• Encouraging Labor Abuse Reports Beyond The PAGA Model

  

  The recent stalling of several state bills modeled after California's Private Attorneys General Act, which would allow workers to sue on behalf of the state over labor violations, suggests budget-constrained regulators should consider alternative tools for incentivizing employees to flag workplace abuses, says Joseph Jeziorkowski at Valiant Law.

• Browsewrap And Clickwrap Can Help Avoid Mini-TCPA Suits

  

  Dozens of putative class actions have been recently filed in Florida alleging mini-Telephone Consumer Protection Act violations — but arbitration provisions, incorporated as a browsewrap or clickwrap agreement, can significantly limit defendants' exposure, says Kristine Argentine at Seyfarth.

• Lessons In Chancery Toss Of Claims Against CoreLogic CEO

  

  Attorneys at Fried Frank discuss key takeaways for boards, including justifications for accepting a lower takeover offer, following the Delaware Chancery Court's recent dismissal of claims that the ex-CEO of CoreLogic breached fiduciary duty during his $6 billion take-private sale of the company.

• John Deere And Farmers Get Creative On 'Right To Repair'

  

  The recent pact between John Deere and the American Farm Bureau Federation, making the company's parts and technical information available to farmers and independent repair shops, is a milestone in the "right to repair" movement — and demonstrates an effective alternative to government mandates, say attorneys at Troutman Pepper.

• Forecasting The Potential Impact Of CFPB Nonbank Registry

  

  The Consumer Financial Protection Bureau's proposed registry of nonbank contract provisions would require a vast undertaking for the entities subject to it and may have a chilling effect on arbitration agreements and other lawful terms and conditions, say attorneys at Husch Blackwell.

• Why Celebrities Are Ensnared In SEC Crypto-Touting Actions

  

  Given the U.S. Securities and Exchange Commission's increasingly broad view of which crypto-assets constitute securities and its willingness to go after celebrities, including most recently former NBA star Paul Pierce, for violating anti-touting laws, promoters need to pay close attention to their disclosure obligations, say Kurt Gottschall and Payton Roberts at Haynes Boone.

• SEC Admissions Policy Hasn't Led To Big Consequences

  

  Although the U.S. Securities and Exchange Commission has secured a number of high-profile admissions of wrongdoing since announcing that it would require them in settlements involving egregious conduct, it has done so under circumstances that aren't likely to have significant collateral consequences, says Harris Fischman at Paul Weiss.