Expert Analysis

Independent directors at mutual fund complexes should consider their fiduciary roles and the underlying reasoning behind recent Mutual Fund Directors Forum guidance suggesting that boards regularly destroy meeting minutes and notes in order to avoid misinterpretation and potential litigation, says Aaron Morris at Barr Law Group.

The current decrease in formality and increase in common ground due to the work-from-home environment can make it easier to have a networking conversation, says Megan Burke Roudebush at Keepwith.

New federal tax rules in the CARES Act, allowing the use of net operating loss carrybacks, bring previously unavailable tax benefits and negotiation opportunities for parties to mergers and acquisitions, say attorneys at Polsinelli.

The Texas Supreme Court's recent opinion in Yowell v. Granite Operating Co. is the latest indication that the rule against perpetuities presents a unique challenge for overriding royalty interest owners who wish to utilize anti-washout provisions to carry an interest forward to new oil and gas leases, says Michael Reer at Harris Finley.

A recent split between Pennsylvania and Georgia federal courts over whether a plaintiff suing a hotel for benefiting from a venture that it should have known engaged in sex trafficking must plausibly allege the hotel violated the federal criminal trafficking law has important implications for both sex trafficking survivors and the hospitality industry, says David Bouchard at Finch McCranie.

One mistake that attorneys commonly make when presenting a case to a third-party funder is focusing almost exclusively on liability and giving short shrift to the damages analysis — resulting in an aspirational damages estimate that falls apart under scrutiny, say Cindy Ahn and Justin Maleson at Longford Capital and Casey Grabenstein at Saul Ewing.

The Federal Trade Commission’s recent settlement with LendEDU over deceptive marketing practices demonstrates why online ads should always be clearly labeled as paid and how financial institutions and other companies should adjust their digital marketing compliance, says Nathan Viebrock at Troutman Sanders.

Companies that bid on projects financed wholly or in part by multilateral development banks to combat the crises caused by the pandemic must have appropriate anti-corruption mechanisms in place to limit the risks of sanctions investigations several years down the road, say Lauren Muldoon and Spencer Bruck at Orrick.

The Fourth Circuit's questions at oral arguments in the Steves and Sons v. Jeld-Wen antitrust case indicate that the district court's unprecedented order requiring Jeld-Wen to divest part of its business as an equitable remedy seems like the most likely basis for reversal, say Lauren Weinstein and Lauren Dayton at MoloLamken.

Reviewing the successes and shortcomings of the Home Affordable Modification Program implemented after the 2008 financial crisis can help the mortgage industry mitigate class action litigation risks related to COVID-19, say Brian Forbes and Robert Sparkes at K&L Gates.

COVID-19 has led to municipal legislation focused on scheduling, paid sick leave, anti-retaliation and protections for laid-off workers that businesses must monitor and adapt to as they call back employees and resume customer services, say Julie Trester and Jeremy Glenn at Cozen O'Connor.

The Ohio Supreme Court's recent decision in Delphi Automotive v. Ohio Department of Job and Family Services sets an acquirer-friendly precedent for unemployment tax rates in mergers, acquisitions and reorganizations, which could be especially important in the wake of pandemic-related layoffs, say Jeremy Hayden and Christopher Tassone of Frost Brown.

A recent Illinois Supreme Court order limiting debt collectors' ability to freeze personal bank accounts during the pandemic is progress, but it does not solve the underlying issue that debt courts are rigged against low-income people, says Ashlee Highland at CARPLS Legal Aid.

Prisons and corrections systems must ensure that medical isolation during the pandemic does not devolve into prolonged solitary confinement that unduly burdens the individual liberty of people behind bars, says Marc Levin at the Texas Public Policy Foundation.

Insurers may be able to reduce or deny business insurance coverage to policyholders who receive Paycheck Protection Program loans, although they should be prepared to face challenges to such arguments, say Glenn Jacobson and Mark Binsky of Abrams Gorelick.

Attorneys at WilmerHale highlight recent developments in privilege law, the significant challenges raised by nontraditional working arrangements popularized during the pandemic, and ways to avoid waiving attorney-client privilege when using electronic communications.

Cash-strapped companies looking for alternative sources of capital during the pandemic can take advantage of private equity funds’ newfound willingness to make minority investments, which can bring managerial, financial, technical and industry expertise to a business in exchange for considerable control over ongoing operations, say attorneys at Winston & Strawn.

A provision in the CARES Act that overhauls the over-the-counter drug monograph system should be a welcome development for certain drug manufacturers and developers but may also result in increased federal scrutiny and enforcement activity, say attorneys at Ropes & Gray.

With COVID-19 leading to the cancellation or postponement of film and television productions, concerts and sports events, entertainment companies must carefully review their insurance policies to determine whether their losses are covered, since contractual language varies widely, say Cassandra Franklin and Bruce Friedman at JAMS.