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Expert Analysis


UK Corporations Face Growing Risk Of Class Actions

Recent years have seen an increased focus on class action litigation in U.K. courts, with a rise in high-profile and high-value claims being brought against corporate defendants. Furthermore, various factors suggest that the trend is likely to continue, say attorneys at Herbert Smith Freehills LLP.


Peering Behind The Peer Review Curtain

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.


Why 25% Foreign-Owned Blocker Corps. Must File Form 5472

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.


Plan Sponsors Should Consider Pension De-Risking

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. 


Series

Judging A Book: Lipez Reviews 'Last Great Colonial Lawyer'

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.


Extra Protection For Press In Law Enforcement Investigations

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.


As IRS Eases Reporting, States Target Dark Money Reforms

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.


How FIRRMA Will Change National Security Reviews: Part 2

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.


The Curious Case Of Ripple's Removal

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. 


Wrongful Termination Claims And NLRB's Burden Of Proof

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.


Long-Awaited Bonus Depreciation Insight For Partnerships

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.


Tax Enforcers Unite Against International Tax Crime

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.


How FIRRMA Will Change National Security Reviews: Part 1

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.


Internet Of Things Cos. Must Prepare For Law Enforcement

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.


A Teachable Moment On Adequate Disclosures

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.


Time To Update Prop 65 Warnings For Residential Rentals

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.


9th Circ. Criticism Of Judicial Notice Trend Is Significant

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.


How Courts Approach Trade Secret Identification: Part 2

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.


Sports Teams Need A TCPA Game Plan

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.


6th Circ. Adds To Individual Assessment Trend Under ADA

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.




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.




Clerking For Ginsburg

Justice Ruth Bader Ginsburg joined the U.S. Supreme Court 25 years ago and is not planning to retire anytime soon — she has hired clerks through 2020. What's it like to assist Justice Ginsburg? In this series, former clerks reflect on the experience.

Cities In Distress

Five years after the city of Detroit filed for Chapter 9 bankruptcy, experts look at the financial troubles of Chicago and other U.S. cities in this special series.



Q&A


A Chat With Ogletree Knowledge Chief Patrick DiDomenico

In this monthly series, Amanda Brady of Major Lindsey & Africa interviews management from top law firms about the increasingly competitive business environment. Here we feature Patrick DiDomenico, chief knowledge officer at Ogletree Deakins Nash Smoak & Stewart PC.



Op-Eds


A Decade Of US Patent Reform Has Gone Too Far

In a recent Law360 guest article, John Thorne of the High Tech Inventors Alliance argued that enactment of the Restoring America's Leadership in Innovation Act would threaten positive changes in patent quality and American innovation. However, many of those same changes have had a serious negative impact on the patent system and the innovation economy, says Boyd Lemna of Personalized Media Communications LLC.

#MeToo Is Missing An Investigative Process

A little-discussed side effect of the #MeToo movement is its impact on individuals who are accused, but not found guilty through an investigative process, of workplace misconduct. A community judgment of guilt is neither morally nor legally equivalent to a fair investigation, says Jen Rubin of Mintz Levin Cohn Ferris Glovsky and Popeo PC.