Expert Analysis


New Remedial Actions For Tax-Advantaged Bonds And P3s

Under an IRS revenue procedure issued on April 11, 2018, issuers of tax-advantaged bonds have new remedial actions available to them to cure unqualified uses that previously would result in loss of tax-advantaged status. Attorneys at Nixon Peabody LLP explain the new procedures.


If Lucia Wins On SEC Judges, What Comes Next?

The U.S. Supreme Court is set to consider in Raymond J. Lucia v. SEC whether the U.S. Securities and Exchange Commission’s previous hiring of administrative law judges violated the Constitution. Let's look at two issues on the horizon if the answer is yes, says Daniel Walfish of Walfish & Fissell LLP.


3 Things To Know About USPTO's New Memo On Eligibility

In light of the Federal Circuit’s decision in Berkheimer v. HP, the U.S. Patent and Trademark Office has issued a new memorandum regarding subject matter eligibility. Patent practitioners now have a new tool to combat patent-ineligibility challenges, say Michelle Holoubek and Lestin Kenton of Sterne Kessler Goldstein & Fox PLLC.


Dispelling The Myth Of Insurers' Bad Faith

Some policyholder lawyers seem to believe that an insurer commits bad faith if it does anything short of exactly what was demanded, but it is actually very hard to prove. Even when a court determines that an insurer is flat-out wrong, it's unlikely that the insurer will be found to have acted in bad faith, says Randy Maniloff of White and Williams LLP.


Can A Single FTC Commissioner Constitute A Quorum?

With Federal Trade Commissioner Terrell McSweeny resigning on April 28, it is possible that acting Chairman Maureen Ohlhausen will be left as the sole commissioner. The FTC appears to believe that it can take formal action by a 1-0 vote, but to allow this would be possibly not lawful and certainly not wise, say professor Stephen Calkins of Wayne State University and John Villafranco of Kelley Drye & Warren LLP.


Investing In US Real Estate On A (Possibly) Tax-Free Basis

Under certain facts, some foreign investors can invest in a real estate investment trust on a completely tax-free basis, both with respect to distributions received from the REIT and with respect to the disposition of the REIT stock, say Galia Antebi and Neha Rastogi of Ruchelman PLLC.


Rule 23 Changes: Avoid Delays In Class Settlement Approval

Among the proposed amendments to Rule 23 of the Federal Rules of Civil Procedure, which are scheduled to take effect Dec. 1, are specific requirements related to “front-loading.” They outline the process for seeking preliminary court approval of class action settlements and related notice plans, say Shandarese Garr and Niki Mendoza of Garden City Group LLC.


Forum Selection Clauses Can Doom PTAB Review

Affirmance of the California federal court's decision in Dodocase v. MerchSource would have an important impact on the rights of patent licensees to challenge patentability in the Patent Trial and Appeal Board, and may provide a pathway for patent owners to dispose of PTAB patent challenges, say attorneys with Goodwin Procter LLP.


Update For Gov't Contractors On Settled Suit Cost Recovery

Since the Federal Circuit's 2009 decision in Geren v. Tecom, the allowability of government contractor settlement costs incurred in just about any type of third-party lawsuit has been unclear. But this month the U.S. Court of Federal Claims had the opportunity to analyze the Tecom standard in Bechtel v. U.S., say Steven Masiello and Tyler Thomas of Dentons.


Excerpt from Lexis Practice Advisor

Avoiding Pitfalls In Physician Practice Acquisitions

The past few years have seen a resurgence in the acquisition of physician practices, both by hospitals and by private equity firms. However, acquiring a physician group carries special challenges in view of the heavy regulation of the health care provider industry, says William Eck of Seyfarth Shaw LLP.


Trespass By Fracking: Pennsylvania Court Weighs In

Reversing a lower court's motion for summary judgment, the Superior Court of Pennsylvania recently held that trespass and conversion claims arising from a hydraulic fracturing operation are not precluded by the rule of capture. The case raises unsettling questions for oil and gas operators, say L. Poe Leggette and Jasper Mason of BakerHostetler.


Aviation Update: The Rise Of The Dreamliner

The 787 Dreamliner's lithium batteries experienced multiple thermal runaway events soon after the plane went into service. But the manufacturer, the FAA, the NTSB and the airlines worked together to quickly and effectively solve the problem. Five years later, the 787 has compiled an admirable operational record, and Boeing continues to receive new orders, says Alan Hoffman, a retired attorney and private pilot.


Judging The Financial Conduct Authority 5 Years On

The U.K.'s Financial Conduct Authority, 5 years old this month, has had significant success in securing record financial penalties against firms in relation to misconduct, but it remains to be seen whether it will be able to hold senior individuals to account, says David Rundle of WilmerHale.


Refuting Insurer Denials Linked To Employee Misconduct

When faced with a denial for coverage of legal costs associated with employee misconduct, policyholders should never assume that their insurer’s interpretation is correct. In fact, some policyholders are well-positioned to refute such denials, especially when the cited exclusion fails to define “abuse” or is otherwise vague, says Greg Van Houten of Haynes and Boone LLP.


The Risks Of Attorney Communication With Appraisers

Attorneys should not attempt to influence a property insurance appraiser's estimate of damages, selection of an umpire or any other substantive issue. While this may run contrary to an attorney's duty of zealous advocacy, it is necessary to avoid subsequent litigation and a potential order vacating an award, says Brian Devilling of Foran Glennon Palandech Ponzi & Rudloff PC.


Tax Reform Creates New Opportunities For REITs

While many analysts expected that federal tax reform would dampen enthusiasm around real estate investment trusts, those concerns have proven to be unfounded. In fact, REITs and their investors should see a net gain overall from the recently adopted tax changes, say attorneys with Kramer Levin Naftalis & Frankel LLP.


Battery Supply Chain: A Unique Growth Opportunity

Battery materials and electric vehicles offer something unique to today’s commodity producers and investors: a sustainable growth story that is not just China-dependent. The exponential growth in demand is creating a scramble for resources not seen since the last great commodity supercycle, say attorneys with White & Case LLP.


In Ohio, Tax Pendulum Swings In Favor Of Freelancers

New tax provisions added as part of the 2017 Tax Cut and Jobs Act substantially favor independent contractors over W-2 employees. This, coupled with the 100 percent Ohio income tax exclusion for business income, means many Ohio independent contractors will pay far less taxes than W-2 employees at the same pay levels, says Thomas Ubbing of Brouse McDowell LPA.


When To Accept ADR For Defense Contractor Reprisal Cases

While participation in the new alternative dispute resolution program for reprisal cases in the U.S. Department of Defense Office of Inspector General may seem unnecessary, it is still worth considering, says Lynne Halbrooks, a partner at Holland & Knight LLP and former acting inspector general of the DOD.


What NJ Employers Should Know About Paid Sick Time Bill

The New Jersey Legislature recently passed a bill requiring employers in the state to provide employees with paid sick time, and Gov. Phil Murphy is expected to sign it. Michelle Silverman and Rudolph Burshnic of Morgan Lewis & Bockius LLP offer an overview of the proposed law and suggestions for how employers can prepare.




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.




Dissolving Practice

In this series, experts discuss the unique aspects of closing a law firm, and some common symptoms of dysfunctionality in a firm that can be repaired before it's too late.

After Cyan

What does the U.S. Supreme Court's unanimous ruling in Cyan v. Beaver County mean for the future of securities litigation? Attorneys at the heart of the case share their views in this series.



Q&A


A Conversation With Baker Botts CMO Gillian Ward

In this monthly series, legal recruiting experts at Major Lindsey & Africa interview law firm management about navigating an increasingly competitive business environment. Here we feature Gillian Ward, chief marketing officer at Baker Botts LLP.



Op-Eds


The Flawed European Remedy To Bayer-Monsanto Deal

It is a safe bet that the U.S. Department of Justice is poised to sign on to the European agreement on Bayer’s acquisition of rival Monsanto, perhaps with a few tweaks. Even so, the Bayer-Monsanto transaction is likely to harm U.S. farmers, say Allen Grunes and Maurice Stucke, founders of The Konkurrenz Group.

Gorsuch's 1st Year Shows He Is A Conservative Activist

In his first year on the U.S. Supreme Court, Justice Neil Gorsuch has proven to be a narrow-minded elitist who consistently votes in favor of corporations and the powerful, acting to roll back protections for workers, consumers, LGBTQ individuals and other marginalized communities, says Elliot Mincberg of People for the American Way.