Expert Analysis

• Opinion

  FTC's Framework For Assessing Direct Selling Cos. Is Flawed

  

  The Federal Trade Commission's criteria are vague for establishing the differences between a legitimate direct selling company and one operating as a pyramid scheme — and it is ultimately an empirical question that cannot be answered without analyses of distributor-level business intelligence data for the direct seller in question, say economists at Brattle.

• Labor Collusion Loss Will Shape DOJ's Case Strategy

  

  Following the U.S. Department of Justice’s recent loss in United States v. Manahe, tallying its trial score record to 0-3 in labor-related antitrust cases over the past year, defendants can expect that the DOJ will try to exclude defense evidence and argue for more favorable jury instructions, say attorneys at Sheppard Mullin.

• Opinion

  Attorneys Should Have An Ethical Duty To Advance DEI

  

  National and state bar associations are encouraging attorneys to apply diversity, equity and inclusion practices in the legal profession and beyond, and these associations should take it one step further by formally recognizing ethical duties for attorneys to promote DEI, which could better the legal profession and society, says Elena Mitchell at Moore & Van Allen.

• Data-Driven Insights Are Key To Attracting Today's Clients

  

  As law firm growth slows and competition for clients increases, modern firms must rely on robust data analytics to develop the sector-based expertise and industry insights that clients increasingly prioritize in relationships with counsel, says Lavinia Calvert at Intapp.

• Ghosting In BigLaw: Why Better Feedback Habits Are Needed

  

  Not giving assignments or constructive criticism to junior associates can significantly affect their performance and hours, potentially leading them to leave the firm, but partners can prevent this by asking the right questions and creating a culture of feedback, says Rachel Patterson at Orrick.

• High Court Decision Casts Doubt On FTC, SEC Proceedings

  

  The U.S. Supreme Court's recent decision that a private party sued by the Federal Trade Commission or U.S. Securities and Exchange Commission could sidestep agency proceedings by suing in federal district court calls into question the constitutionality of enforcement actions brought before an administrative law judge, say Douglas Paul and Ildefonso Mas at Akerman.

• Rebuttal

  Law Needs A Balance Between Humanism And Formalism

  

  A recent Law360 guest article rightly questions the pretextual pseudo-originalism that permits ideology to masquerade as judicial philosophy, but the cure would kill the patient because directness, simplicity and humanness are achievable without renouncing form or sacrificing stare decisis, says Vanessa Kubota at the Arizona Court of Appeals.

• FTC's Criminal Liaison Unit Enhances Merger Risks

  

  As it enters its second year, the Criminal Liaison Unit within the Federal Trade Commission’s Bureau of Competition may streamline and sharpen efforts to detect and refer substantive and procedural violations to prosecutors, increasing the chances of a merger review uncovering potential criminal activity, say attorneys at Norton Rose.

• Short Message Data Challenges In E-Discovery

  

  As short message platforms increasingly dominate work environments, lawyers face multiple programs, different communication styles and emoji in e-discovery, so they must consider new strategies to adapt their processes, says Cristin Traylor at Relativity.

• Opinion

  Aviation Watch: High Time For Sweeping Air Travel Reforms

  

  The Airline Passengers' Bill of Rights, currently pending in the U.S. Senate, would provide a broad range of protections for air travelers — but instead of providing consumers with complicated remedies, Congress should act to prevent abuses in the first place, says Alan Hoffman, a retired attorney and aviation expert.

• Justice Manual Updates Bring Needed Clarity On Policy Shifts

  

  Recent amendments to the Justice Manual reflect a welcome commitment by the U.S. Department of Justice to incorporate its corporate enforcement policy changes into the central repository of federal prosecutorial guidelines and to clarify which previous guidance the updates modify or supersede, say Rod Rosenstein and Amelia Medina at King & Spalding.

• Opinion

  Thomas Report Is Final Straw — High Court Needs Ethics Code

  

  As a recent report on Justice Clarence Thomas' ongoing conflicts of interest makes evident, Supreme Court justices should be subject to an enforceable and binding code of ethics — like all other federal judges — to maintain the credibility of the institution, says Erica Salmon Byrne at Ethisphere.

• How To Handle Experts Like An Expert In Antitrust Trials

  

  Recent trends in antitrust cases show an increased focus on experts by the courts, highlighting the importance of avoiding the mistakes that turn an expert into a liability, and laying the groundwork for testimony that can sway judges and jurors and force favorable settlements, say David Cross and Rob Manoso at MoFo.

• Joint Representation Ethics Lessons From Ga. Electors Case

  

  The Fulton County district attorney's recent motion to disqualify an attorney from representing her elector clients, claiming a nonconsentable conflict of interest, raises key questions about representing multiple clients related to the same conduct and highlights potential pitfalls, say Hilary Gerzhoy and Grace Wynn at HWG.

• Lawyer Discernment Is Critical In The World Of AI

  

  In light of growing practical concerns about risks and challenges posed by artificial intelligence, lawyers' experience with the skill of discernment will position them to help address new ethical and moral dilemmas and ensure that AI is developed and deployed in a way that benefits society as a whole, says Jennifer Gibbs at Zelle.