Expert Analysis


Patent Owners Should Mind Assignee Rights Restrictions

Federal courts' reliance on the Federal Circuit Lone Star v. United Microelectronics decision, which closely scrutinized contractual restrictions in patent assignments, makes it crucial for patent owners to take particular care when limiting an assignee's ability to enforce the patent or transfer the rights, say John Haynes and Lindsay Church at Alston & Bird.


Mutual Fund Boards Should Rethink Advice To Destroy Notes

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.


How Lawyers Can Network Better, Virtually And In Person

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.


NOL Carryback Rule Changes Bring Benefits For M&A Parties

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.


Texas Ruling May Weaken Anti-Washout Clauses In Oil Leases

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.


What Court Split On Sex Trafficking Means For Hotels, Victims

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.


Practical Tips For Presenting Your Case To Litigation Funders

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.


Online Ad Lessons From FTC Lending Marketplace Settlement

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.


Compliance Tips For Development Bank COVID-19 Projects

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.


4th Circ. Seems Leery Of Divestiture Order In Doormaker Case

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.


The Past Holds Lessons For COVID-19 Mortgage Cases

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.


Adapting To Worker-Friendly City Laws Prompted By Virus

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.


Ohio Tax Talk: Unemployment Ruling May Offer M&A Savings

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.


Perspectives

Illinois Must Do More To Protect Consumers In Debt

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.


Perspectives

The Case Against Solitary Confinement During Pandemic

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.


PPP Loans Create 2 Issues For Virus Biz Interruption Claims

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.


Avoiding Inadvertent Privilege Waivers In E-Communications

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.


PE Minority Investments Offer Alternative Capital During Crisis

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.


Incentives And Risks From OTC Drug Monograph Revamp

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.


Entertainment Cos. May Not Be Insured For Pandemics

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.




Q&A


Coping With A Pandemic: McCarter & English's Abdul Rehman

As society continues to adapt to COVID-19, Law360 is sharing reactions from around the business and legal community. Today's perspective comes from Newark-based Abdul Rehman Khan, pro bono fellow for the city of Newark at McCarter & English.



Special Series


Judging A Book

Are the latest books on the judicial system worth reading? Federal judges share their thoughts in this series of book reviews.




Pursuing Wellness

In this Expert Analysis series, leaders at some of the law firms that committed to the American Bar Association's 2018 pledge to improve mental health and well-being in the legal industry explain how they put certain elements of the initiative into action.




Op-Eds


How Rules Of Evidence Lead To Convictions Of The Innocent

Every trial lawyer knows that Amy Cooper's compelling 911 call from Central Park, although hearsay, could be played to a jury at trial to bolster witness trial testimony, highlighting the fact that the Federal Rules of Evidence contain numerous pathways for prosecutors to introduce all types of evidence that would otherwise be excludable, says attorney John Lauro.

It's Time To Scrap FTC's Health Breach Notification Rule

The Federal Trade Commission's notification rule for nonhealth companies that suffer health record data breaches is too narrow, and should be replaced by a federal privacy law that provides uniform and meaningful protections for consumers, says Dena Castricone at DMC Law.



Access to Justice Perspectives


Illinois Must Do More To Protect Consumers In Debt

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.




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