Expert Analysis

• Opinion

  'US Cyber Trust Mark' Program Threatens Privacy, Innovation

  

  The Federal Communications Commission's recently announced plan to create a "U.S. Cyber Trust Mark,” which would voluntarily affix to smart devices to boost consumer confidence and industry security standards, could lead to an erosion of consumer privacy, competition, innovation, and any firewall between the government and the individual, says attorney Donna Etemadi.

• Opinion

  Has The NCAA Not Learned NIL Policy Lessons Of The Past?

  

  The NCAA has applied its heavy hand — which has been slapped back by courts and legislatures — again, saying that colleges must comply with its name, image and likeness policies even if they conflict with state laws, but recent antitrust decisions might caution against its reasoning, says Kenneth Jacobsen at Temple University.

• Opinion

  3 Ways Justices' Disclosure Defenses Miss The Ethical Point

  

  The rule-bound interpretation of financial disclosures preferred by U.S. Supreme Court Justices Samuel Alito and Clarence Thomas — demonstrated in their respective statements defending their failure to disclose gifts from billionaires — show that they do not understand the ethical aspects of the public's concern, says Jim Moliterno at the Washington and Lee University School of Law.

• FTC 'Dark Patterns' Enforcement Signals Consent Theory Shift

  

  The Federal Trade Commission's recent complaint against Amazon for using dark patterns to trick consumers signals a general trend in American jurisprudence of importing a European theory of consent, which could result in a more turgid digital experience, says Christian Auty at BCLP.

• 5 Ways To Improve Commercial Arbitration Clauses

  

  Arbitration clauses have become ubiquitous as parties hope to streamline disputes, but with boilerplate language leading to the same downsides as conventional litigation, commercial contract drafters should opt for custom-written terms, say Lauren Zimmerman and Jeff Zalesin at Selendy Gay.

• How US Investment Regulation May Shift Under Biden Order

  

  Attorneys at Ropes & Gray explore potential prohibitions, notification requirements and covered transactions under President Joe Biden's recent executive order, which marks an unprecedented expansion of U.S. regulation of investment activity.

• 5 Compliance Mistakes To Avoid When Entering A New Market

  

  As many companies move their value chains out of China or expand to new markets for other reasons, they should beware several common compliance pitfalls — such as insufficient due diligence and one-size-fits-all training — to avoid reputational, financial and legal damage, says Alexandra Wrage at TRACE International.

• Breaking Down The Long-Awaited HHS Info Blocking Rule

  

  Although the U.S. Department of Health and Human Services' Office of Inspector General's final information-blocking enforcement rule is a step toward regulating conduct, there is still no rule for appropriate disincentives for provider-actors, leaving a significant enforcement gap, say attorneys at Sheppard Mullin.

• Where Biden's Outbound Investment Effort May Be Headed

  

  The president’s recent executive order on outbound investment describes prohibited transactions and a notification process, but the U.S. Department of the Treasury’s actions suggest upcoming regulations will leave investors with the risky determination of whether investments are prohibited or require notification, say attorneys at Morgan Lewis.

• Dupree Decision Blurs Lines Between Issues Of Law And Fact

  

  In the wake of the U.S. Supreme Court's May decision in Dupree v. Younger, certain types of disputes and nuances may arise for trial lawyers when separating issues of fact and law, and the complications are illustrated by examples from antitrust and intellectual property case law, say Francis Morrison and Jarod Taylor at Axinn.

• Caregiver Flexibility Is Crucial For Atty Engagement, Retention

  

  As the battle for top talent continues post-pandemic, many firms are attempting to attract employees with progressive hybrid working environments — and supporting caregivers before, during and after an extended leave is a critically important way to retain top talent, says Manar Morales at The Diversity & Flexibility Alliance.

• Standing Issues Prevail In Wake Of Calif. Competition Ruling

  

  Courts and litigants may grapple with uncertainty in the wake of the California Supreme Court's recent California Medical Association v. Aetna Health decision broadening standing to sue under the state's unfair competition law, and additional litigation will likely be required to develop its contours, say attorneys at Skadden.

• FTC's Proposed HSR Changes Will Complicate Merger Filings

  

  Attorneys at Mayer Brown explore the proposed sweeping revisions to Hart-Scott-Rodino Act premerger notification rules and what the change would mean for deal terms, including the increased cost, uncertainty and risk added to the process.

• In-Office Engagement Is Essential To Associate Development

  

  As law firms develop return-to-office policies that allow hybrid work arrangements, they should incorporate the specific types of in-person engagement likely to help associates develop attributes common among successful firm leaders, says Liisa Thomas at Sheppard Mullin.

• Pointers For Tackling Antitrust Class Action Set-Aside Orders

  

  As federal district courts have increasingly been willing to enter set-aside orders for the benefit of class counsel, varying rulings have made the propriety of such orders in antitrust class actions a thorny issue — so attorneys should time their filings strategically and explore opportunities for cost-sharing, say William Reiss and Laura Song at Robins Kaplan.