Expert Analysis

• FERC Order Affirms Increased Scrutiny Of Investor-Utility Ties

  

  A recent Federal Energy Regulatory Commission order confirming more aggressive scrutiny of investors' exercise of control over public utilities through representation on their boards or the boards of companies holding interests in them means that both investors and utilities face significantly heightened compliance obligations, say attorneys at Akin.

• The Case For Quantifying The Impact Of 'Dark Patterns'

  

  Recent lawsuits alleging that Amazon and Audible used so-called dark patterns to deceive customers show that federal agencies and consumers are actively challenging such conduct, and quantifying its impact on purchase decisions is an important step toward using an evidence-based approach for determining the appropriate level of deterrence, say economists at Brattle.

• CFIUS Clampdown Will Deter Allied-Country Investment

  

  The Committee on Foreign Investment in the United States’ recent redefinition of transaction "completion date" is the latest in a series of steps taken in the name of U.S. security that are likely to deter investments from friendly countries and increase capital costs for U.S. startups, says Stephen Heifetz at Wilson Sonsini.

• Why Seminole Tribe Sports Betting Ruling Is A Net Positive

  

  The D.C. Circuit Court’s recent ruling that a gambling compact between Florida and the Seminole Tribe is lawful even though it allows for online sports betting expands the tribe's offerings while maintaining exclusivity and is a win for individuals who wish to legally wager on sports within Florida, says Daniel McGinn at Dean Mead.

• Strategies For Conducting More Effective Plea Negotiations

  

  The sentencing of “Varsity Blues” scandal architect Rick Singer earlier this year provides a helpful case study on the plea bargain process, spotlighting three key negotiation concepts and seven tactics for defense attorneys, say lawyers at Riley Safer.

• Courts Can Overturn Deficient State Regulations, Too

  

  While suits challenging federal regulations have become commonplace, such cases against state agencies are virtually nonexistent, but many states have provisions that allow litigants to bring suit for regulations with inadequate cost-benefit analyses, says Reeve Bull at the Virginia Office of Regulatory Management.

• Tales From The Trenches Of Remote Depositions

  

  As practitioners continue to conduct depositions remotely in the post-pandemic world, these virtual environments are rife with opportunities for improper behavior such as witness coaching, scripted testimony and a general lack of civility — but there are methods to prevent and combat these behaviors, say Jennifer Gibbs and Bennett Moss at Zelle.

• What's New In The DOJ-FTC Proposed Merger Guidelines

  

  While this week's merger guidelines proposal from the Federal Trade Commission and U.S. Department of Justice initially appears to reflect well-established principles of antitrust law, a closer examination reveals a stark departure from the last 40 years of antitrust enforcement, say attorneys at Skadden.

• Minn. Noncompete Ban May Add To Nat'l Venue Choice Tangle

  

  With federal courts already split on which laws govern choice-of-venue clauses in noncompete agreements, the new Minnesota statute that bans noncompetes and empowers workers to void any employment contract that requires out-of-state adjudication will complicate compliance for multistate employers, says Sarah Tishler at Beck Reed.

• ChatGPT Can't Predict The Future Of Antitrust And AI (Yet)

  

  Though OpenAI's ChatGPT has made artificial intelligence a popular topic of conversation recently, the subject of AI and antitrust has been around for years, raising the question of what other competitive concerns might arise as the technology becomes more sophisticated and ubiquitous in our marketplace, say attorneys at Faegre Drinker.

• Ways To Balance ESG Initiatives And Antitrust Risks

  

  Since ESG policies often concern systemic issues that require collective action for meaningful results, there are potential antitrust issues that require safeguards to help mitigate risk, say attorneys at Faegre Drinker.

• Challenging Standing In Antitrust Class Actions: Timing

  

  The early resolution of Article III standing disputes in antitrust class actions can result in sizable efficiencies, but some litigants and courts are improperly relying on the Amchem and Ortiz U.S. Supreme Court cases to defer standing issues until after ruling on plaintiffs' class certification motions, say Michael Hamburger and Holly Tao at White & Case.

• Level Up Lawyers' Business Development With Gamification

  

  With employee engagement at a 10-year low in the U.S., there are several gamification techniques marketing and business development teams at law firms can use to make generating new clients and matters more appealing to lawyers, says Heather McCullough at Society 54.

• Mallory Ruling Leaves Personal Jurisdiction Deeply Unsettled

  

  In Mallory v. Norfolk Southern Railway, a closely divided U.S. Supreme Court recently rolled back key aspects of its 2017 opinion in Daimler AG v. Bauman that limited personal jurisdiction, leaving as many questions for businesses as it answers, say John Cerreta and James Rotondo at Day Pitney.

• What The ESG Divide Means For Insurers And Beyond

  

  The debate around ESG is becoming increasingly polarized, with some states passing legislation that prohibits the use of ESG factors and others advancing affirmative legislation, highlighting the importance for insurers and other companies to understand this complex legal landscape, say Scott Seaman and Bessie Daschbach at Hinshaw.