Expert Analysis

The U.S. Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals specified peer review as one criterion for evaluating scientific evidence. But not all peer review is created equal, and sometimes additional exploration — whether through discovery into your adversaries’ experts, or early investigation of your own potential experts — may make sense, says William Childs of Bowman and Brooke LLP.

The IRS has recently become very aggressive in asserting penalties for failing to file a Form 5472 — used to identify potential tax issues with regard to transactions between a U.S. corporation and related foreign shareholder, says Brad Wagner of Wagner Duys & Wood LLLP.

For some plan sponsors, the prospect of engaging in a pension risk transfer may seem cost-prohibitive. However, the cost of transferring risk is lower than what many sponsors perceive, says Elliott Dinkin of Cowden Associates Inc. 

In his new book, "The Last Great Colonial Lawyer: The Life and Legacy of Jeremiah Gridley," Charles McKirdy argues that Gridley — someone I had never heard of — was the last great colonial lawyer, and that his cases illuminate his times. The author largely substantiates both claims, says First Circuit Judge Kermit Lipez.

When the FBI seized a New York Times journalist’s phone and email records earlier this year, the press was outraged. The authority to seize documents from a reporter has a higher threshold of approval than for normal investigations, and the failure to follow those requirements has a unique statutory remedy, say Thomas Barnard and Macy Climo of Baker Donelson Bearman Caldwell & Berkowitz PC.

At the same time that the IRS is making it easier for nonprofits to shield their donors from inadvertent disclosure by eliminating a reporting requirement on annual tax filings, some states, such as Maine and Montana, continue to trend toward greater disclosure of donors to politically active nonprofits. It is thus imperative that nonprofits are cognizant of the complex and inconsistent rules among federal, state and local jurisdictions, say attorneys at Nossaman.

The newly enacted Foreign Investment Risk Review Modernization Act significantly expands the authority of the U.S. government to review and restrict foreign investments on national security grounds. But FIRRMA also has provisions that may exempt some transactions from review, and accelerate review of others, say Jeffrey Bialos and Mark Herlach of Eversheds Sutherland LLP.

Coffey v. Ripple Labs is a much-anticipated cryptocurrency case that squarely presents the question of whether Ripple is a “security” within the meaning of the securities laws. A recent decision in the case, however, addressed an important removal question of more general applicability, says Douglas Pepe of Joseph Hage Aaronson LLC. 

In Tschiggfrie Properties v. National Labor Relations Board, a three-member panel of the Eighth Circuit vacated the NLRB's decision involving an employee who was fired for abusing his employer's Wi-Fi and sleeping on the job. The ruling is a helpful reminder of the NLRB's burden of proof in a mixed-motive wrongful termination case, say Douglas Darch and Jenna Neumann of Baker McKenzie.

Earlier this month, the IRS finally released proposed regulations under the bonus depreciation provisions of the Tax Cuts and Jobs Act. The guidance provides long-awaited clarification on the availability of 100 percent bonus depreciation to partnership basis adjustments, say attorneys at O'Melveny & Myers LLP.

In light of the launch of the Joint Chiefs of Global Tax Enforcement alliance against transnational tax crime and money laundering, it is more important than ever for corporations and professional services firms to carefully manage their exposure to higher risk clients and business activity, say Kyle Wombolt and Jeremy Birch of Herbert Smith Freehills LLP.

The Foreign Investment Risk Review Modernization Act empowers the U.S. government to review a far broader group of transactions than ever before to determine if they threaten national security. FIRRMA's expansive new coverage includes oversight of real estate investments and transfers of "emerging and foundational technologies," say Jeffrey Bialos and Mark Herlach of Eversheds Sutherland LLP.

As the internet of things device market develops, companies that proactively develop compliance strategies should be able to avoid many of the pitfalls that are sure to come as law enforcement changes the way it investigates cases, say attorneys at Wiley Rein LLP.

Full and accurate disclosure of information by a corporation to its stockholders is a basic component of obtaining consent to mergers and other fundamental transactions. But the Delaware Supreme Court's decision in Morrison v. Berry is a stark reminder that implementing adequate disclosures is easier said than done, say Marc Casarino and Lori Smith of White and Williams LLP.

The ubiquitous Proposition 65 warning signs posted throughout apartment communities in California may soon become a thing of the past. Under a new draft rule that is being finalized, safe harbor warnings for residential rental properties will be found in lease agreements rather than on posted signs, says Andrea Sumits of Environmental General Counsel LLP.

The Ninth Circuit's opinion this week in Khoja v. Orexigen Therapeutics makes clear that the court is concerned about the doctrines of judicial notice and incorporation by reference being applied loosely in securities cases. This could result in fewer dismissals, or at least fewer dismissals with prejudice, at the motion to dismiss stage, says Kevin LaCroix of RT ProExec.

Early trade secret identification is a thorny issue on which courts and commentators have not reached consensus. Attorneys at Crowell & Moring LLP propose a model trade secret identification process that serves the interests of both sides in a dispute.

For professional sports franchises, texting is a wonderful fan-engagement tool. But it is also a potential legal hazard, as illustrated by several recent Telephone Consumer Protection Act class actions. If you want your fans screaming at the refs and not at you, heed five TCPA lessons, say attorneys with Stroock & Stroock & Lavan LLP.

The Sixth Circuit's recent opinion in Hostettler v. The College of Wooster is a cautionary tale for employers faced with a full-time employee seeking a modified work schedule as an accommodation under the Americans with Disabilities Act, say Robert Horton and Courtney Williams of Bass Berry & Sims PLC.