Expert Analysis


A Look At The Present State Of Privilege In Investigations

The current trend of rolling back privilege in an investigatory context is a troublesome development for companies, and may lead to a reduction in self-reporting and investigation. Even more concerning are the implications on litigation privilege, meaning that defendants will need to incriminate themselves in order to satisfy the evidential test as to when a prosecution was reasonably anticipated, says Georgina Jones of Taylor Wessing LLP.


Weakening The CDA Would Have Unintended Consequences

Recent legislative efforts to amend the Communications Decency Act and remove Section 230 protection from websites that facilitate sex trafficking are commendable, but the vague language in the proposed legislation could open the door for the plaintiffs’ bar to file vexatious lawsuits against even law-abiding websites, says Charles Harris of Mayer Brown LLP.


Obama's Overlooked Antitrust Legacy

There is an Obama antitrust legacy of aggressive enforcement, particularly on mergers, but this legacy is mostly ignored. The antitrust bar should care about this oversight, says Kelsey Shannon of the Lynn Law Firm.


CERCLA’s Jurisdictional Bar To Medical Monitoring Claims

Medical monitoring claims against the U.S. Navy have recently foundered on the shoals of the Comprehensive Environmental Response, Compensation, and Liability Act’s jurisdictional rules. If affirmed, Giovanni v. U.S. Department of the Navy, a case currently pending appeal to the Third Circuit, will set the Third Circuit on course to split with the Ninth Circuit, say Thomas Manakides and Alexander Swanson of Gibson Dunn & Crutcher LLP.


What S&P, FTSE Actions Mean For Multiclass Share Structures

Recent actions by the S&P Dow Jones and FTSE Russell highlight growing concerns within the investment community regarding multiclass voting structures. However, it is unlikely these actions will have a uniform impact on every multiclass company, say attorneys with King & Spalding LLP.


How Patent Pools Help Cos. Avoid Infringement Litigation

While the U.S. Supreme Court's recent decision in TC Heartland could reduce the number of patent infringement suits filed by patent trolls, patent pools of all types will remain viable vehicles for reducing patent litigation risk, says William Van Curen of Snell & Wilmer LLP.


Credit Unions Face Tightening Bank Secrecy Act Scrutiny

Recent Bank Secrecy Act enforcement underscores credit unions’ obligations not only to adhere to the rules and regulations, but also to possess a sufficient anti-money laundering compliance program of policies, training and reporting, says former federal prosecutor Timothy Westrick of Treliant Risk Advisors.


Protecting The Privacy Of Privileged Internal Investigations

Despite the fact-dependent nature of privilege, complicated by the diversity of approaches across jurisdictions, corporations can take effective measures to best protect confidential attorney-client communications and attorney work product relating to internal investigations, say attorneys with Pepper Hamilton LLP.


Clarifying FCRA Stand-Alone Disclosure Rule At 7th Circ.

The Seventh Circuit's recent decision in Groshek v. Time Warner Cable is a valuable win for employers, as it provides important guidance as to what does not constitute a concrete injury with respect to the Fair Credit Reporting Act stand-alone disclosure rule, say attorneys with Proskauer Rose LLP.


Time To Lift The Ban On Foreign Control Of US Reactors

An outdated legal restriction prohibits foreign ownership or control of U.S. commercial nuclear reactor licenses. Foreign companies nonetheless invest in U.S. reactors, but must partner with U.S. firms, which distorts the marketplace. Properly vetted foreign companies owning U.S. reactor licenses would promote the country's economic interests without endangering security, says John Matthews of Morgan Lewis & Bockius LLP.


Liability Doesn't Have To Mean Punitive Damages Too

Last month a Florida jury returned a verdict against R.J. Reynolds Tobacco Co., but declined to impose punitive damages. This result underscores the importance and value of a focused punitive damages defense — especially in mass tort contexts where compensatory liability may be difficult to fully avoid, says Mitchell Morris of McGuireWoods LLP.


What 'Employers' Should Know As Summer Interns Move On

As August winds down and summer interns transition back to school, some of the workplaces that welcomed interns last spring may wonder if they might face a lawsuit for wages and overtime under the Fair Labor Standards Act. While such lawsuits were trending just a few years ago, several court rulings have put a damper on such litigation, says Shlomo Katz of Brown Rudnick LLP.


5 Tips For A Successful Legal Blog

David Coale, leader of the appellate practice at Lynn Pinker Cox & Hurst LLP, shares his insights into what works — and what does not — when setting up and maintaining a legal blog.


A South Florida Victory For Condominium Hotels

In Dear v. Q Club, a jury in the Southern District of Florida returned a verdict in favor of Q Club, finding that the hotel owner was right to increase its annual maintenance costs. This verdict is important to the condominium hotel industry, as many owners are not collecting an adequate amount of the shared costs at their properties, say Larry Litow of Burr & Forman LLP and Barry Mukamal of KapilaMukamal.


Maintaining The Integrity Of Physician-Owned Practices

Two recent cases in New York and New Jersey will impact how medical practice transactions should be structured in the future. New Jersey and New York courts may find fraud if they believe the purpose of a contractual agreement or transaction is to extract profits out of a practice, says John Fanburg of Brach Eichler LLC.


OCC Opens The Debate On Volcker Rule Reform

The Office of the Comptroller of the Currency recently issued an advance notice of proposed rulemaking that represents the first concrete step toward reforming the regulations that implement the Volcker Rule. The OCC’s willingness to issue the ANPR reflects a forward-thinking approach that will have a significant long-term impact on financial market participants, say attorneys with Arnold & Porter Kaye Scholer LLP.


Series

What I Learned In My 1st Year: Lessons From Willy Wonka

As a new associate faced with vexing facts and unfavorable case law, I confidently told a senior partner that there was no way to win. The partner's response taught me something vital about the legal profession, and reflected the wisdom of Willy Wonka's "105 percent" formula, says Thomas Ciarlone Jr. of Kane Russell Coleman Logan PC.


Personnel Is Policy: Succession Possibilities At The CFPB

It is not entirely clear whether the Dodd-Frank Act or the Federal Vacancies Reform Act would control succession in the event of Director Richard Cordray’s resignation from the Consumer Financial Protection Bureau. But there will be real and significant differences in the operation of the CFPB depending on which statute prevails, say Andrew Sandler and Benjamin Olson of Buckley Sandler LLP.


Is The Hutchins Indictment Over Malware Unconstitutional?

​In a dramatic turn of events, the British security researcher who stopped the WannaCry malware attack has been indicted in the U.S. for creating and selling the Kronos malware. But it is an open question whether the indictment fails to allege a sufficient nexus between Marcus Hutchins and the U.S. for purposes of the Fifth Amendment, says Alex Berengaut of Covington & Burling LLP.


Waffle House Arbitration Ruling May Reach Past 11th Circ.

The impact of the Eleventh Circuit's recent decision in Jones v. Waffle House may be far-reaching, as it has significantly widened the circuit split over the "wholly groundless" exception to arbitrability clauses, and has added persuasive authority that could sway undecided circuits to join in rejecting that exception, say attorneys with Akin Gump Strauss Hauer & Feld LLP.




Special Series


Notes From A Law Firm Chief Privacy Officer

As more law firms become the targets of major cyberattacks, more firms may consider appointing a chief privacy officer. In this series, CPOs at four firms discuss various aspects of this new role.

15 Years Of Sarbanes-Oxley

A decade and a half after the Sarbanes-Oxley Act was enacted in response to accounting scandals at Enron, WorldCom and elsewhere, attorneys, accountants and compliance experts measure the law's impact in this special series.

Leegin's 10-Year Checkup

A decade after the U.S. Supreme Court's landmark antitrust decision in Leegin v. PSKS, this series examines the ruling's impact on resale price maintenance.



Op-Eds


It’s Time To Fix FIFRA Preemption

Pesticides, like drugs and other products whose safe use is heavily regulated by the federal government, simply should not be subject to the whims of local government officials. The Federal Insecticide, Fungicide and Rodenticide Act is long overdue for an amendment that would expressly and unequivocally preempt all local regulation of pesticide sale and use, says Lawrence Ebner of Capital Appellate Advocacy PLLC.

The Proper Measure Of The Value Of Class Actions

Despite many examples of benefits obtained by plaintiffs, corporate America loudly claims that class actions don’t benefit anyone other than the attorneys who bring them. What do they base this on? Not much, says Gary Mason of Whitfield Bryson & Mason LLP.



Q&A


Plaintiffs Bar Perspective: Fine Kaplan's Roberta Liebenberg

Historically, lead counsel for both plaintiff classes and defendants in class actions have been overwhelmingly male. Fortunately, an increasing number of judges have begun to take steps to ameliorate the long-standing gender imbalance. Hopefully this trend will continue, says Roberta Liebenberg of Fine Kaplan and Black RPC.