Expert Analysis


How Store Brand Evolution May Influence IP Cases

A consumer shift toward private-label grocery products has spurred a recent crop of lawsuits, like Smuckers v. Trader Joe's, and parties must be prepared to carefully analyze consumer confusion in the grocery retailing context, as well as expectations and behavior, say Justin LaTorraca, Elizabeth Milsark and Laura O’Laughlin at Analysis Group.


The Ins And Outs Of Decentralized Digital Asset Exchanges

As decentralized digital asset exchanges lack intermediaries, and so remain susceptible to fraud and market manipulation, ​​​​​​​an understanding of their design is crucial to help market participants avoid fraudulent practices such as liquidity rug pulls, says Swati Kanoria at Charles River.


Contradictory Rulings Show Complexity Of Swaps Regulation

Recent divergent rulings, including two by the same Nevada judge, on whether the Commodity Exchange Act preempts state gambling laws when applied to event contracts traded on U.S. Commodity Futures Trading Commission-regulated markets illustrate the uncertainty regarding the legality of prediction markets, say attorneys at Akin.


How New Law Transforms Large-Load Power Projects In Texas

S.B. 6 — the new Texas law that revises state regulations for large electrical loads and related behind-the-meter projects — introduces higher up-front costs for developers and more flexible operating models for large-load customers, but should provide the certainty needed for greater investment in generation, say attorneys at Sidley.


10th Circ. Debtor Ruling May Expand Wire Fraud Law Scope

The Tenth Circuit’s recent U.S. v. Baker decision, holding that federal fraud law can reach deceptive schemes designed to prevent a creditor from collecting on a debt, may represent an expansive new theory of wire fraud — even as the ruling reaffirmed the requirements of the interstate commerce element, say attorneys at ArentFox Schiff.


How Cos. Should Prepare For Prop 65 Listing Of Bisphenols

California regulators are moving toward classifying all p,p'-bisphenol chemicals as causing reproductive toxicity under Proposition 65, which could require warning notices for a vast range of consumer and industrial products, and open the floodgates to private litigation — so companies should proactively review their suppy chains, says Gregory Berlin at Alston & Bird.


8th Circ. Decision Shipwrecks IRS On Shoals Of Loper Bright

The Eighth Circuit’s recent decision invalidating transfer pricing regulations in 3M Co. v. Commissioner may be the most significant tax case implementing Loper Bright's rejection of agency deference as a judicial tool in statutory construction, says Edward Froelich at McDermott.


Cyber Ruling Illustrates Risks Of Overlapping Coverages

A Minnesota federal court recently held that insurer Illinois Casualty had to defend a suit alleging personal and advertising injury under both cyber protection coverage and the general liability coverage, highlighting complications that can arise when a single claim triggers multiple coverages, says Andrea Martinez at Wiley.


Rule Amendments Pave Path For A Privilege Claim 'Offensive'

Litigators should consider leveraging forthcoming amendments to the Federal Rules of Civil Procedure, which will require early negotiations of privilege-related discovery claims, by taking an offensive posture toward privilege logs at the outset of discovery, says David Ben-Meir at Ben-Meir Law.


IP Ownership Risk Grows In Booming Cancer Drug Market

The ownership of intellectual property has become strategically decisive in deals involving valuable cancer therapeutics known as ADCs, as highlighted by the recent Takeda-Innovent deal, with the commercial value of a license resting on the integrity and defensibility of the underlying technology, say attorneys at Loeb & Loeb.


Series

My Miniature Livestock Farm Makes Me A Better Lawyer

Raising miniature livestock on my farm, where I am fully present with the animals, is an almost meditative time that allows me to return to work invigorated, ready to juggle numerous responsibilities and motivated to tackle hard issues in new ways, says Ted Kobus at BakerHostetler.


When Mortgage Data Can't Prove Discriminatory Lending

As plaintiffs continue to use Home Mortgage Disclosure Act data as grounds for class actions, attorneys must consider the limits of a statistics-only approach and the need for manual loan file review to confirm indications of potential discriminatory lending, say Abe Chernin, Shane Oka and Kevin Oswald at Cornerstone Research.


NLRB Memo Shifts Tone On Defenses Against Union 'Salting'

The current Starbucks strike demonstrates the potential effects of salting, in which applicants seek employment in order to organize a union, and recent guidance from the National Labor Relations Board suggests that previously rejected employer defenses may now gain traction, says Daniel Johns at Cozen O'Connor.


Justices' Ruling Will Ease Foreign Arbitral Award Enforcement

The U.S. Supreme Court's recent decision in Fuld v. Palestine Liberation Organization suggests that U.S. courts can constitutionally decide whether to recognize and enforce foreign arbitral awards in accordance with U.S. treaty obligations, regardless of the award debtor's connections to the U.S., says David Cinotti at Pashman Stein.


The Future Of Gen AI Training Amid Reddit Data Scraping Suit

Reddit's lawsuit against Perplexity AI is not framed as a classic copyright infringement fight, demonstrating that even when companies avoid fair use claims, the path by which training data is obtained is legally consequential, say attorneys at Troutman Pepper.


Evaluating Nasdaq Tokenization Rule's Potential Impact

Nasdaq's recently proposed rule would enable settlement of tokenized equity securities and exchange-traded products using blockchain technology, which could lead to dramatic improvements in market efficiency, settlement speed and market access, but prudent skepticism about timelines and implementation capabilities is warranted, says James Brady at Katten.


Surveying The Healthcare Policy Landscape Post-Shutdown

With last week's agreement to reopen the federal government, at least through the end of January, key healthcare legislation that has been in limbo since a December 2024 spending bill fell apart may recapture the attention of Congress, say attorneys at Faegre Drinker.


FDA Biosimilar Guidance Should Ease Biologics Development

New draft guidance from the U.S. Food and Drug Administration, indicating that the agency may no longer routinely require comparative efficacy studies when other evidence provides sufficient assurance of biosimilarity, underscores the FDA's trust in analytical technology as a driver of biologics access, say attorneys at Hogan Lovells.


Preparing For Treasury's Small Biz Certification Audits

To prepare for the U.S. Department of the Treasury’s recently announced audit of small and disadvantaged government contractors, companies should assess the records that supported their prior certifications and confirm their current eligibility, particularly if they share ownership with another entity or were recently acquired, say attorneys at Morgan Lewis.


4chan's US Lawsuit May Affect UK Online Safety Law Reach

4chan and Kiwi Farms’ pending case against the Office of Communications in a D.C. federal court, arguing that their constitutional rights have been violated, could have far-reaching implications for the extraterritorial enforcement of the U.K. Online Safety Act and other laws if successful, say lawyers at Taylor Wessing.



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Special Series


My Hobby Makes Me A Better Lawyer

In this Expert Analysis series, attorneys share how their unusual extracurricular activities enhance professional development, providing insights and pointers that translate to the office, courtroom and beyond.




Adapting To Private Practice

In this Expert Analysis series, attorneys who have made the move from government work to private practice in the last few years reflect on how they transitioned to law firm life, and discuss tips for others.




Opinion


Punitive Damages Awards Should Be Limited To 1st Instance

Recent verdicts in different cases against Johnson & Johnson and Monsanto showcase a trend of multiple punitive damages being awarded to different plaintiffs for the same course of conduct by a single defendant, a practice that should be deemed unconstitutional by the U.S. Supreme Court, says Jacob Mihm at Polales Horton.

Courts Must Continue Protecting Plaintiffs In Mass Arbitration

In recent years, many companies have imposed onerous protocols that function to frustrate plaintiffs' ability to seek justice through mass arbitration, but a series of welcome court decisions in recent months indicate that the pendulum might be swinging back toward plaintiffs, say Raphael Janove and Sasha Jones at Janove Law.



Access to Justice Perspectives


3 Ways To Boost Access To Justice In NYC Small Claims Court

The New York City Small Claims Court is a critical venue for pro se litigants seeking civil justice, but the system is under strain, and three practical reforms are needed to help strengthen fairness, consistency and access, says Charles Montorio-Archer at the New York City Civil Court.