Expert Analysis

• 9th Circ. Gap Ruling Creates Split On Forum Selection Clause

  

  The Ninth Circuit recently held in Lee v. Fisher that a forum selection clause in Gap's bylaws requiring all derivative claims to be brought in Delaware state court is enforceable, but since the Seventh Circuit struck down a similar clause in Boeing's bylaws last year, Supreme Court review may be on the horizon, say attorneys at Davis Polk.

• 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.

• 'Entire Fairness' Takeaways From Tesla-SolarCity Ruling

  

  In its recent decision affirming dismissal of stockholder claims against Elon Musk in connection with Tesla's $2.6 billion acquisition of SolarCity, the Delaware Supreme Court indicated how an entire fairness analysis is best presented, say attorneys at Fried Frank.

• How Construction Industry Can Help Mitigate Wildfire Impact

  

  The recent uptick of wildfires across North America has resulted in renewed calls for construction job site changes and increased management of sites in order to mitigate the risk of outbreaks and workers' exposure to hazardous air quality, say Josephine Bahn and Jeffery Mullen at Cozen O'Connor.

• 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.

• 3 Ways Courts Approach Patent Eligibility At Trial And After

  

  Sorin Zaharia and Mark Liang at O’Melveny analyze all 36 district court cases where patent eligibility under Section 101 was decided at trial or post-trial after Alice, specifically focusing on how different districts address step two of the Alice inquiry, as well as the impact of each approach on the outcome.

• Employer Drug-Testing Policies Must Evolve With State Law

  

  As multistate employers face ongoing challenges in drafting consistent marijuana testing policies due to the evolving patchwork of state laws, they should note some emerging patterns among local and state statutes to ensure compliance in different jurisdictions, say attorneys at Troutman Pepper.

• Disney Investor Suit Shows Limit Of Del. Books, Records Law

  

  While Section 220 of the Delaware General Corporation Law remains an important shareholder tool to obtain access to corporate books and records, the Delaware Chancery Court's recent decision in Simeone v. Disney illustrates the extent that judges will allow the use of Section 220 to scrutinize disagreements about corporate speech on ESG issues, say Stephen Kraftschik and Robert Penza at Polsinelli.

• 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 Constitutes A Sale Of 'All' Company Assets In Del.

  

  The recent ruling in Altieri v. Alexy by the Delaware Chancery Court is a useful reminder of the facts-intensive and nuanced nature of the judicial analysis as to what constitutes a sale of all or substantially all of a company's assets, and provides helpful guidance as to the factors the court views as most critical in making the determination, say attorneys at Fried Frank.

• 5 Ways Firms Can Rethink Office Design In A Hybrid World

  

  As workplaces across the country adapt to flexible work, law firms must prioritize individuality, amenities and technology in office design, says Kristin Cerutti at Nelson Worldwide.

• False Ad Snapshot Shows Risks Of Geographic Origin Claims

  

  A look at recent and historical cases involving deceptive use of geographic origin descriptors show that companies proclaiming they are American, but that sell products originating from outside the U.S., could be at risk under unfair competition laws or Federal Trade Commission enforcement, say attorneys at Carlson Gaskey.

• Opinion

  Bar Score Is Best Hiring Metric Post-Affirmative Action

  

  After the U.S. Supreme Court's ruling striking down affirmative action admissions policies, law firms looking to foster diversity in hiring should view an applicant's Multistate Bar Examination score as the best metric of legal ability — over law school name or GPA, says attorney Alice Griffin.