Expert Analysis

• Glimmers Of Clarity Appear Amid Open Banking Disarray

  

  The Consumer Financial Protection Bureau's vacillation over data rights rules has created uncertainty, but a recent proposal is a strong signal that open banking regulations are here to stay, making now the ideal time for entities to take action to decrease compliance risk, says Adam Maarec at McGlinchey Stafford.

• Opinion

  High Court, Not A Single Justice, Should Decide On Recusal

  

  As public trust in the U.S. Supreme Court continues to decline, the court should adopt a collegial framework in which all justices decide questions of recusal together — a reform that respects both judicial independence and due process for litigants, say Michael Broyde at Emory University and Hayden Hall at the U.S. Bankruptcy Court for the District of Delaware.

• FTC's Consumer Finance Pivot Brings Industry Pros And Cons

  

  An active Federal Trade Commission against the backdrop of a leashed Consumer Financial Protection Bureau will be welcomed by most in the consumer finance industry, but the incremental expansion of the FTC's authority via enforcement actions remains a risk, say attorneys at Hudson Cook.

• How A New BIS Rule Greatly Expands Export Restrictions

  

  The newly effective affiliates rule from the U.S. Department of Commerce's Bureau of Industry and Security restricts exports to foreign companies that are 50% or more owned by entities listed on the BIS entity list and the military end-user list — a major shift in U.S. export control enforcement, say attorneys at Simpson Thacher.

• Amazon Ruling Marks New Era Of Personal Liability For Execs

  

  A Washington federal court's recent decision in FTC v. Amazon extended personal liability to senior executives for design-driven violations of broad consumer protection statutes, signaling a fundamental shift in how consumer protection laws may be enforced against large public companies, say attorneys at Orrick.

• What Cross-Border Task Force Says About SEC's Priorities

  

  The formation of the U.S. Securities and Exchange Commission's cross-border task force, focused on investigating U.S. federal securities law violations overseas, underscores Chairman Paul Atkins' prioritization of classic fraud schemes, particularly involving foreign entities, say attorneys at Cleary.

• How Gov't Reversals Are Flummoxing Renewable Developers

  

  The Trump administration has reversed numerous environmental and energy policies, some of which have then been reinstated by the courts, making it difficult for renewable energy project developers to navigate the current regulatory environment, says John Watson at Spencer Fane.

• Series

  Traveling Solo Makes Me A Better Lawyer

  

  Traveling by myself has taught me to assess risk, understand tone and stay calm in high-pressure situations, which are not only useful life skills, but the foundation of how I support my clients, says Lacey Gutierrez at Group Five Legal.

• Opinion

  DOJ's Tracing Rule For Pandemic Loan Fraud Is Untenable

  

  In conducting investigations related to COVID-19 relief fraud, the government's assertion that loan proceeds are nonfungible and had to have been segregated from other funds is unsupported by underlying legislation, precedent or the language establishing similar federal relief programs, say Sharon McCarthy, Jay Nanavati and Lasya Ravulapati at Kostelanetz.

• New Health AI Guidance Features A Provider-Centric Approach

  

  New guidance from the Joint Commission and Coalition for Health AI regarding the responsible use of artificial intelligence in healthcare deviates from preexisting guidance by recommending a comprehensive framework for using AI tools, focusing on healthcare provider organizations rather than on AI developers, say attorneys at Ropes & Gray.

• NY Zelle Suit Highlights Fraud Risks Of Electronic Payments

  

  The New York attorney general's recent action against Zelle's parent company, filed several months after the Consumer Financial Protection Bureau abandoned a similar suit, demonstrates the fraud risks that electronic payment platforms can present and the need for providers to carefully balance accessibility and consumer protection, say attorneys at Weiner Brodsky.

• 6th Circ. FirstEnergy Ruling Protects Key Legal Privileges

  

  The Sixth Circuit’s recent grant of mandamus relief in In re: First Energy Corp. confirms that the attorney-client privilege and work-product protections apply to internal investigation materials, ultimately advancing the public interest, say attorneys at Cooley.

• Series

  Law School's Missed Lessons: Client Service

  

  Law school teaches you how to interpret the law, but it doesn't teach you some of the key ways to keeping clients satisfied, lessons that I've learned in the most unexpected of places: a book on how to be a butler, says Gregory Ramos at Armstrong Teasdale.

• How Occasional Activists Have Reshaped Proxy Fights

  

  The sophistication and breadth of first-time activist engagement continue to shape corporate governance and strategic outcomes, as evidenced across corporate annual meetings this summer, meaning advisers should anticipate continued innovation in tactics, increased regulatory complexity, and a persistent focus on board accountability, say attorneys at MoFo.

• How The FTC Is Stepping Up Subscription Enforcement

  

  Despite the demise of the Federal Trade Commission's click-to-cancel rule in July, the commission has not only maintained its regulatory momentum, but also set new compliance benchmarks through recent high-profile settlements with Match.com, Chegg and Amazon, say attorneys at Holland & Knight.