Expert Analysis

• 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.

• Prepare For Stricter Capital Rules: The Basel Endgame Is Nigh

  

  With federal financial regulators made edgy by recent bank failures and likely to propose a strict U.S. version of the Basel III "endgame" capital requirements within the year, banks should expect complying with market risk management standards to become more daunting, say attorneys at Jones Day.

• 3 Reasons Why Congress Should Stay Out Of NY Trump Probe

  

  Congress members should reconsider their investigation of the Manhattan district attorney’s indictment of former President Donald Trump for several key reasons — and if they persist, future congressional leadership should adopt a rule prohibiting this kind of local interference, say Kenyen Brown and Kevin Carroll at Hughes Hubbard.

• Considering The Legal Hurdles Of Seizing State Assets

  

  Though confiscating Russian state assets and using them for the reconstruction of Ukraine is a popular idea, a recent New York federal court case over the seizure of Afghan central bank assets illustrates the risks of violating international norms regarding sovereign immunity, especially if there is a lack of due process, says Angelika Hellweger at Rahman Ravelli.

• Ore. Regulator Liquor Scandal Should Alarm Cannabis Cos.

  

  The agency that regulates Oregon's liquor and cannabis industries is embroiled in a public corruption scandal over liquor diversion practices, and state cannabis companies are feeling the fallout, from application processing delays to a growing risk of prosecution, says Kevin Jacoby at Green Light Law Group.

• Is ESG Conduct Exempt From Antitrust Scrutiny?

  

  The applicability of the Noerr-Pennington doctrine's noncommercial boycott exemption to environmental, social and governance conduct remains an open question, but U.S. Supreme Court precedent dating back four decades shows that courts could recognize an affirmative defense for boycotts motivated by ESG objectives, say Joel Mitnick and Daniel Lumer at Cadwalader.

• Sentencing Guidelines Proposal May Encourage More Trials

  

  Proposed amendments to the U.S. sentencing guidelines prohibiting dismissed and acquitted conduct from being considered at a defendant's sentencing may ultimately help resuscitate the federal criminal trial and rectify an arguably unconstitutional aspect of sentencing, say Elena Quattrone and Melissa Jampol at Epstein Becker.

• 10th Circ. Ruling Shows Hemp Issues Need Congressional Fix

  

  The Tenth Circuit’s recent Serna v. Denver Police Department decision adds to a line of rulings demonstrating that hemp producers and sellers cannot rely on the 2018 Farm Bill to preempt application of state regulations, which Congress should remedy with the 2023 Farm Bill, says Christian Foote at Clark Hill.

• Navigating The DOJ's Latest Corporate Self-Disclosure Policy

  

  The U.S. Department of Justice’s new policy aims to incentivize companies to voluntarily self-disclose misconduct to any U.S. attorney’s office, but its narrow definitions, disqualifying exceptions and broad charging discretion may complicate companies' efforts to comply, say John Pease and Steven Strauss at Morgan Lewis.

• New AML Law May Be Key Tool To Enforce Russia Sanctions

  

  A new anti-money laundering law for the first time authorizes monetary rewards for tips leading to government enforcement against certain sanctions violations, and though many questions remain, it gives the U.S. an additional tool in the ongoing global battle against Russian aggression, say Daren Firestone and Kimberly Wehle at Levy Firestone.

• How Appetizing Will Cos. Find The DOJ's New Carrots?

  

  The U.S. Department of Justice’s latest corporate enforcement policy updates provide greater incentives for companies that voluntarily self-disclose wrongdoing, but given the potential perils of extraordinary cooperation, companies may find some of these carrots less appetizing, say attorneys at Morgan Lewis.

• FCPA Enforcement Outlook: Sweeter Carrots, Sharper Sticks

  

  Corporate enforcement of the Foreign Corrupt Practices Act in 2023 will likely remain apace with last year’s rebound from historic lows, continuing to demonstrate broad industry and geographic reach, as well as the U.S. Department of Justice’s evolving approach to incentives and consequences, say attorneys at Debevoise.

• The Issues Shaping Labor Market Antitrust Litigation In 2023

  

  Questions about whether traditional antitrust analysis should apply to labor market abuses will continue to define litigation over agreements restricting employment this year, as courts grapple with the sufficiency of pleadings, parties' evidentiary burdens, affirmative defenses and jury instructions, say Manly Parks and Randy Kim at Duane Morris.

• Criminal Vs. Civil Liability Amid Growing Crypto Enforcement

  

  Amid growing crypto enforcement and new resources at the U.S. Department of Justice, cryptocurrency market participants should understand the ways in which regulators and prosecutors collaborate in parallel criminal and civil investigations — and how the DOJ’s criminal tools are broader and more intrusive than agencies’ civil actions, say attorneys at WilmerHale.

• Expect More CPSC Litigation, Regulation, Penalties In 2023

  

  According to its recently issued operating plan, the U.S. Consumer Product Safety Commission will take a hard and fast approach to product safety in 2023 — with enforcement as a top priority, and all cases evaluated for potential referral for criminal prosecution — so ensuring compliance will be paramount for companies, say attorneys at Morgan Lewis.