Expert Analysis


Series

Revisiting Affiliated Ute: Impact In The 7th Circ.

In the 45 years since the U.S. Supreme Court's ruling in Affiliated Ute, the Seventh Circuit has cited it 145 times. The most significant of these decisions was the court's rejection of the “fraud created the market” theory as an extension of Affiliated Ute, says Julie Goldsmith Reiser of Cohen Milstein Sellers & Toll PLLC.


Hiring Incumbent Staff: GAO Says You Get What You Pay For

The Government Accountability Office's decision last month in A-P-T Research, along with three other protests from the last two years, emphasizes the importance of evaluating an offeror’s ability to recruit and retain incumbent personnel in the course of a cost realism analysis, says Amy Conant of K&L Gates LLP.


2 Rules For Avoiding Cannabis-Related Property Traps

Similar to the Gold Rush of 1849 where the majority of prospectors realized little to no return from their labors, the "Green Rush" of marijuana legalization is destined to yield the same result. However, following two golden rules will help you weed out the bad deals from the good and strike it rich, says Dennis Baranowski of Geraci Law Firm.


Does FERC Delegation Authority Survive Loss Of Quorum?

In Allegheny Defense Project v. Federal Energy Regulatory Commission, the petitioner has raised three different arguments why its appeal is not premature — all of which go to the legal status of FERC's tolling orders. Therefore, it seems likely that the D.C. Circuit will have to address at least some aspect of the scope and lawfulness of FERC's delegation authority, say attorneys with Stinson Leonard Street LLP.


What Lawyers Can Learn From United's Passenger Incident

Following United Airlines' disastrous response to its recent mishandling of passenger Dr. David Dao the change to note is simply this: The old rules no longer apply uniformly. While there was always pressure to mount a quick legal response and communicate it, the time frame for this has been reduced to nanoseconds, say Peter Shaplen and Traci Stuart of Blattel Communications.


Is It Time To Do Away With The TSA?

Does the burden imposed on airlines and the public by the all-encompassing domestic airport security regime provide any real benefit? The arbitrary nature of many of the U.S. Transportation Security Administration's procedures, and the modifications made to mollify public outcry, suggests that they add little real value, says Alan Hoffman of Husch Blackwell LLP.


Why Hively Offers Limited Protection To LGBT Employees

Does discrimination based on gender include sexual orientation? With its decision in Hively v. Ivy Tech Community College, the Seventh Circuit recently said yes. But this answer won’t help everyone, says Phillis Rambsy of the Spiggle Law Firm.


The Supreme Court Puts Personal Jurisdiction On Trial

Personal jurisdiction is a popular corporate defense strategy against mass torts. And based on oral arguments before the U.S. Supreme Court last month in two important cases, the outlook seems bleak for plaintiffs looking for the right forum in which to seek a remedy, say Leslie Brueckner of Public Justice and Andre Mura of Gibbs Law Group.


High Court Laches Rulings Likely Won't Affect TM Cases

Even though the U.S. Supreme Court has all but eliminated the defense of laches in copyright and patent infringement actions, laches likely remains viable against allegations of trademark infringement, say Howard Hogan and Anthony Vita of Gibson Dunn & Crutcher LLP.


Opinions Of Counsel Post-Halo: Lessons From 16 Cases

Following the U.S. Supreme Court's Halo decision 11 months ago, the case results show that investigating the patent and forming a good faith belief of invalidity or noninfringement is a key factor — perhaps the key factor — courts rely on in deciding whether to award enhanced damages, say Brian Mudge and Shawn O’Dowd of Andrews Kurth Kenyon LLP.


Phishing For Coverage Under Crime Policies

Companies victimized by phishing have sought coverage under the computer provisions of their insurance policies for their losses, but they have met with no success. Help may be on the way, as some insurance companies are starting to include phishing coverage in their crime policies, say Marc Shein of Marsh & McLennan Cos. Inc. and Robert Chesler of Anderson Kill PC.


The FX Global Code And Its Enforcement: What To Expect

With the second phase of the Foreign Exchange Global Code releasing this week, Matthew Kulkin and Micah Green of Steptoe & Johnson LLP analyze how U.S. courts have historically looked to or relied upon financial services global codes of conduct or industry best practices documents.


The Efficiencies Defense: What Would High Court Do?

In addition to signaling the end of one of the most watched antitrust litigations in recent memory, Anthem's decision to call off its proposed acquisition of Cigna — effectively mooting its appeal to the U.S. Supreme Court — leaves unanswered several important questions regarding the appropriate treatment of efficiencies in a merger challenge, say attorneys with Crowell & Moring LLP.


In Congress: Budget, Health Care, Comey

As we approach the Memorial Day recess, President Trump’s firing of FBI Director James Comey and allegations that the president sought to stop the FBI from investigating former National Security Advisor Michael Flynn’s potential ties to Russia remain at the top of the news cycle and threaten to derail Republican efforts to pursue health care and tax reform, among other priorities, say Richard Hertling and Kaitlyn McClure of Covington & Burling LLP.


Sanctions ​And Export Control Risks For Health Care Cos.

Recent settlements suggest an emerging trend in which the U.S. government is bringing enforcement actions against health care companies for violating economic sanctions and export control laws. Many health care companies are large organizations with expansive international operations, distributors and end users, making them natural targets due to the laws' broad extraterritorial applications, say attorneys with Ropes & Gray LLP.


Why Insider Benefit Is Irrelevant To Criminal Insider Trading

Lawyers and commentators have spilled oceans of ink analyzing what kind of insider benefit and what level of tippee knowledge of such benefit are sufficient to establish liability for insider trading. But what has been largely ignored is that in criminal insider trading cases, the U.S. Department of Justice is legally empowered to avoid those issues entirely, say David Chaiken of Troutman Sanders LLP and Paul Monnin of Paul Hastings LLP.


EPA Signals Shift In Superfund Decision-Making

Not only does U.S. Environmental Protection Agency Administrator Scott Pruitt’s recent delegation memo signal a potentially significant shift within the agency to centralize decision-making on major Superfund remedies, but it's also an important development in the broader context of recent controversies related to large Superfund sites, says Jeremy Karpatkin of Arnold & Porter Kaye Scholer LLP.


The Turning Tides Of TCPA Litigation

The Telephone Consumer Protection Act has become a hotbed for litigation in recent years. The question now is whether litigation will be tempered by the recent and anticipated shake-ups in regulations promulgated by the Federal Communications Commission, say Sarah Jacobson and Sherry Xia of Haynes and Boone LLP.


An Obviousness Reminder From The Fed. Circ.

Although the obviousness test is at least a decade old, its second part — why someone would have been motivated to make the combination — is often overlooked. On occasion, even judges forget the “why” portion and need to be told that a full explanation of the motivation to combine is required. That is exactly what happened in Personal Web v. Apple, says Jonathan DeBlois of Sunstein Kann Murphy & Timbers LLP.


DMCA 2.0: A Potential Shift In Safe Harbor Jurisprudence

For nearly a decade, the most heavily litigated Digital Millennium Copyright Act “safe harbor​" issue has been the level of an ​internet service provider​’s knowledge of infringement​. But ​courts and litigants are starting to debate who constitutes a “user” and when the storage of infringing material is “at the direction” of a use​r, says Scott Sholder of Cowan DeBaets Abrahams & Sheppard LLP.




Special Series


10 Years Of KSR

This series explores how the U.S. Supreme Court's 2007 decision in KSR v. Teleflex has affected obviousness analysis and the patent landscape.

Counsel To Counsel: Insights From Law Firm GCs

General counsel at four law firms share the biggest issues they face in an increasingly complex legal environment.

3 Tax Reform Perspectives

In this recent series on federal tax reform, practitioners explore current proposals and initiatives, and reflect on how past efforts to change the system may provide lessons — and warnings — for today's would-be tax reformers.



Op-Eds


Stop Bashing EB-5

What detractors of the EB-5 program seem to miss is that visas for EB-5 entrants are a tiny fraction of our immigration system. I firmly believe in the Statue of Liberty’s call to “Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door.” But I also firmly support a 1 percent set-aside for well-to-do immigrants who desire to come to our shores and grow our economy, says Steve Ledoux of Davis Wright Tremaine LLP.

Why Criticism Of ALI's Insurance Restatement Is Valid

The saga of the American Law Institute's "Restatement of the Law - Liability Insurance" continues to unfold with a recent publication by the Restatement's authors, rebutting Professor George Priest's criticism. Based on the available information, Priest's view — that the Restatement will likely result in higher future premiums and potential decreased availability of coverage for consumers — appears to win the day, says A. Hugh Scott of Choate Hall & Stewart LLP.



Q&A


Plaintiffs Bar Perspective: McKool Smith's Ashley Moore

I’ve seen seasoned lawyers in the courtroom who failed to listen effectively, which alienates the jury, destroys what could have been a devastating cross-examination, and sometimes frustrates judges who simply want their question answered, says Ashley Moore, principal at McKool Smith PC.