Expert Analysis

• Opinion

  9th Circ. Should Rethink Inadequate UBH Ruling

  

  The Ninth Circuit should seriously consider rehearing Wit v. United Behavioral Health en banc because its recent claims reprocessing decision in the case raises troubling questions about the future of Employee Retirement Income Security Act's class actions, says Mark DeBofsky at DeBofsky Law.

• 5th Circ. Confidential Witness Ruling Is A Big Change

  

  The Fifth Circuit's recent ruling in Oklahoma Firefighters Pension and Retirement System v. Six Flags that confidential witness claims can be sufficient to establish scienter is a significant message that anonymous witness allegations should be credited, and plaintiffs should feel more confident including these claims in their securities fraud complaints, say James Christie and David Saldamando at Labaton Sucharow.

• FTC Noncompete Ban Could Open State Litigation Floodgate

  

  The Federal Trade Commission’s recently proposed ban on most employment noncompete agreements is likely to result in a cascade of litigation on the state level, providing a basis for private consumer class actions and state attorney general enforcement, say Ryan Strasser and Carson Cox at Troutman Pepper.

• Cannabis Cos. Must Brace For More Mislabeling Class Actions

  

  In the face of increasing consumer class actions alleging that labels and advertisements misstate products' THC content, cannabis companies must prepare for direct and collateral legal risks as well as potential damage to the industry's credibility as a whole, say Cassandra Beckman Widay and Amy Rubenstein at Dentons.

• High Court Slack Case Not Likely To Broadly Affect Issuers

  

  If the U.S. Supreme Court decides in Slack v. Pirani to limit claims under the Securities Act for direct listings to only the purchase of registered shares, it's unlikely to create a free-for-all environment for issuers, as some have claimed, say Susan Hurd and Madeleine Juszynski at Alston & Bird.

• 5 Ways Attorneys Can Use Emotion In Client Pitches

  

  Lawyers are skilled at using their high emotional intelligence to build rapport with clients, so when planning your next pitch, consider how you can create some emotional peaks, personal connections and moments of magic that might help you stick in prospective clients' minds and seal the deal, says consultant Diana Kander.

• Ruling May Affect FCRA Claims About Private Student Loans

  

  The Second Circuit’s recent ruling in Mader v. Experian may support credit reporting agencies defending Fair Credit Reporting Act claims that follow a Chapter 7 private student loan discharge, introducing new challenges for consumers skipping directly to the FCRA claim, say Jessica Salisbury-Copper and Kelsey Mincheff at Thompson Hine.

• 5 Keys To A Productive Mediation

  Excerpt from Practical Guidance

  

  Cortney Young at ADR Partners discusses factors that can help to foster success in mediation, including scheduling, preparation, managing client expectations and more.

• Crypto Coverage After FTX Fall: D&O Liability

  

  The fallout surrounding the recent implosion of cryptocurrency firm FTX highlights potential crypto coverage exposure — including in the area of directors and officers liability — for insurance carriers in the evolving and largely misunderstood world of digital assets, says Anjali Das at Wilson Elser.

• And Now A Word From The Panel: 2022 MDLs By The Numbers

  

  A highlight of the Judicial Panel on Multidistrict Litigation's practice during 2022 was the significant percentage increase of new MDL petitions granted — and given how many actions and plaintiffs may be involved in a single MDL, the true impact of this increase may be even greater than it appears, says Alan Rothman at Sidley.

• Evaluating The Legal Ethics Of A ChatGPT-Authored Motion

  

  Aimee Furness and Sam Mallick at Haynes Boone asked ChatGPT to draft a motion to dismiss, and then scrutinized the resulting work product in light of attorneys' ethical and professional responsibility obligations.

• Litigation, Compliance And Enforcement In The 'Crypto Winter'

  

  In 2022, cryptocurrency valuations plummeted, litigation proliferated and the "crypto winter" led to several high-profile bankruptcies, resulting in novel factual and legal questions being raised in areas like general commercial litigation, intellectual property, securities, bankruptcy, cybersecurity and compliance, say attorneys at Arnold & Porter.

• 7 Tips To Increase Your Law Firm's DEI Efforts In 2023

  

  Law firms looking to advance their diversity, equity and inclusion efforts should consider implementing new practices and initiatives this year, including some that require nominal additional effort or expense, say Janet Falk at Falk Communications and Gina Rubel at Furia Rubel.

• Series

  Keys To A 9-0 High Court Win: Get Back To Home Base

  

  When I argued for the petitioner in Morgan v. Sundance before the U.S. Supreme Court last year, I made the idea of consistency the cornerstone of my case and built a road map for my argument to ensure I could always return to that home-base theme, says Karla Gilbride at Public Justice.

• 3 NFT Issues Practitioners Should Consider In 2023

  

  The use of non-fungible tokens grew dramatically in 2022 across many industries, so attorneys should keep their eyes on developments in licenses to artwork, royalties on secondary sales and applications of securities law, says Mark Radcliffe at DLA Piper.