Expert Analysis

• Brace For Expanding Scrutiny Of Dark Patterns In Healthcare

  

  Recent reporting and regulatory developments highlight growing concern surrounding so-called dark patterns in healthcare — user interface designs that improperly influence consumer decision-making — and represent an important evolution of how healthcare professionals should evaluate consent processes, say attorneys at Clark Hill.

• How Axing SEC Trade-Through Rule Could Reshape Markets

  

  The proposed elimination of a Securities and Exchange Commission rule that mandates a price benchmark for equity securities trades could allow blockchain-based trades to compete with legacy frameworks in registered markets, potentially serving as a test case for updated regulatory models, say Alex Zozos at Superstate, and Lewis Rinaudo Cohen and Edward Leaf at Cahill Gordon.

• What Regulatory 'Reputation Risk' Purge Means For Banks

  

  Banks should expect closer scrutiny of account closures and service denials after federal regulators recently stripped "reputation risk" from supervisory guidance, and should tie customer decisions to documented, objective legal and financial criteria to protect against debanking-related enforcement, say attorneys at Troutman.

• What 'Good Faith' Means In Calif.'s 1st Climate Reporting Year

  

  Initial submissions to California's corporate greenhouse gas emissions reporting program are due this month — and for regulated businesses, the first-year issue is not whether CARB has answered every implementation question, but how a company can make its good faith compliance efforts provable later, says Thierry Montoya at FBT Gibbons.

• How New Counter-Drone Rule Will Reshape Event Security

  

  A new interim final rule on counter-unmanned aircraft systems creates one of the most structured regulatory frameworks yet adopted for mitigating unauthorized drone activity, with implications for law enforcement, airport and stadium operators, drone companies, and public event organizers, say attorneys at Morgan Lewis.

• NYDFS Swedbank Order Offers Lessons On Candor

  

  The New York State Department of Financial Services' consent order with Swedbank reflects the department's broad view of its investigative authority, emphasizes transparency, and underscores the risks of intrusive investigations that can occur if a regulator believes that it was misled, say attorneys at Paul Hastings.

• AI Data Mining Is Changing FCA Enforcement

  

  With False Claims Act investigations increasingly emerging from statistical anomalies identified by data miners, companies need to consider what conclusions an outsider armed with artificial intelligence might draw from public-facing data and be ready to explain any anomalies if questions arise, say attorneys at Cohen & Gresser.

• Del. High Court Ruling Signals Next Post-Jarkesy Phase

  

  The Delaware Supreme Court recently ruled in Swan Energy v. Investor Protection Unit that the jury trial principles underlying the U.S. Supreme Court’s Jarkesy opinion do not compel the same result under the state's constitution, offering state courts a road map for the next phase of administrative enforcement litigation, says Benjamin Lajoie at Nelson Mullins.

• Managing Data Center Power Issues, Public Pushback

  

  The many risks associated with data center construction include power availability, government regulations and public opinion, and contractual disputes — but these can be mitigated with careful project controls, planning and targeted contract drafting, say Randa Adra and Lily Geyer at Crowell & Moring, and Natasha Dahl at Ankura.

• Handling Section 301 Tariffs When CBP Detains Goods

  

  Importers subject to Section 301 tariffs on goods under a U.S. Customs and Border Protection forced labor hold should consider three approaches when deciding whether to pay tariffs on goods that may ultimately be excluded, or wait and watch port demurrage compound daily, says James Ferry at Ferry Trade.

• Data Center Risks Include Schedules, Supply Chain, Labor

  

  Managing the dynamic technical and legal risks related to data center development requires sophisticated strategies for dealing with compressed schedules and liquidated damages, supply chain and long-lead equipment challenges, and labor shortages and productivity issues, say Randa Adra and Lily Geyer at Crowell & Moring, and Natasha Dahl at Ankura.

• Rethinking Risk And Value In Private Credit Disputes

  

  Private credit disputes will increasingly turn on whether lenders recognized enterprise-value risk and updated marks as borrower conditions changed, making valuation processes, trigger frameworks and portfolio oversight critical for investors and litigants, say Isil Erel at the Ohio State University and Farooq Javed at The Brattle Group.

• How To Limit Trading Risk When AI Accesses Nonpublic Info

  

  Financial firms' increasing adoption of artificial intelligence raises questions about how to control AI tools' access to nonpublic information to mitigate the risk of a trading, surveillance or enforcement problem, but designing policies to prevent misuse may help, say attorneys at Skadden.

• Lessons From 5 Months Of DOJ Corporate Policy Deals

  

  Recent declinations and prosecution agreements between the U.S. Department of Justice and corporations since the March unveiling of the corporate enforcement and voluntary disclosure policy provide takeaways for management considering how to respond to corporate misconduct, says Brendan Quigley at Baker Botts.

• Calif. OppFi Suit Outlines Key Criteria For Bank Partnerships

  

  A California state court's recent ruling in OppFi v. Hewlett offers fintech-bank partnerships a blueprint for structuring lending programs to withstand future true lender challenges, while signaling that enforcement theories may face added scrutiny under the state's ban on underground regulations, say attorneys at Womble Bond.