Expert Analysis


Biden Must Sustain Laser Focus To Meet Lofty Green Goals

President-elect Joe Biden has targeted climate change with ambitious power-sector and emissions targets, but several obstacles will need to be addressed, including the power markets' decentralized nature, certain states and constituencies' resistance, and the expected lack of a congressional mandate, say Sandra Rizzo and Jamie Lee at Arnold & Porter.


NY Contract Litigation Indicates Limits Of COVID-19 Defenses

Although there has not yet been a decision on the merits, a wave of COVID-19 litigation concerning force majeure, impossibility and frustration of purpose in New York indicates that using pandemic-related excuses to avoid contractual obligations may be limited, says Seth Kruglak at Norton Rose.


Ethics Reminders As Employees Move To Or From Gov't

Many organizations are making plans for executives to go into government jobs, or for government officials to join a private sector team, but they must understand the many ethics rules that can put a damper on just how valuable the former employee or new hire can be, say Scott Thomas and Jennifer Carrier at Blank Rome.


Expect 2021 SEC To Turn Hawkish On Auditor Enforcement

President-elect Joe Biden's U.S. Securities and Exchange Commission will almost certainly usher in a reversal of recent years' slow pace of auditor enforcement — just 11 actions this year — back up toward the levels of the Obama administration's Operation Broken Gate, say Charles Smith and Andrew Fuchs at Skadden.


5 Tips For In-House Counsel Anticipating Cyber Class Actions

In light of a 270% increase in data breaches this year, and the attendant class actions, in-house counsel can prepare to efficiently manage litigation by focusing on certain initial steps, ranging from multidistrict litigation strategy to insurance best practices, say David McDowell and Nancy Thomas at MoFo.


When It Comes To SEPs, Act Locally But Enforce Globally

Because recent standard-essential patent decisions in the U.S., the U.K., China and Germany may signal a trend toward a greater international influence on global royalty rates by individual national jurisdictions, potential licensors and licensees may need to adjust their enforcement strategies, says Mauricio Uribe at Knobbe Martens.


UnitedHealth ERISA Ruling Exposes Faults In Health Coverage

Perhaps one of the most significant health insurance decisions ever, a California federal court’s recent ruling that Employee Retirement Income Security Act violations require a UnitedHealth subsidiary to reconsider 50,000 denied mental health treatment claims reveals how insurers' decisions sometimes disregard generally accepted care standards, says Mark DeBofsky at DeBofsky Sherman.


3 Fed. Circ. IP Cases For Gov't Contractors To Watch

Nathaniel Castellano at Arnold & Porter discusses recent oral arguments at the Federal Circuit in three cases — Boeing v. Secretary of the Air Force, Bitmanagement Software v. U.S. and Harmonia Holdings v. U.S. — and the broad implications the decisions will have on government contractors and agencies dealing in proprietary data and software.


Response Options For Danish Cum-Ex Interview Targets

As the Danish tax authority prepares for the first of a three-part U.K. trial involving cum-ex fraud, U.K. recipients of interview requests from the Danish prosecutorial agency should neither automatically accept, nor ignore the invitations, despite that agency's seeming lack of power to compel their attendance, says David Corker at Corker Binning.


4th Circ. Ruling Shows Limits To ADA Accommodation Claims

The Fourth Circuit’s recent denial of an Americans with Disabilities Act claim in Elledge v. Lowe's instructs employers on how to analyze accommodation requests and illustrates when disabled employees may not be entitled to special priority for reassignment, says Phillip Kilgore at Ogletree.


Even In Tropical Florida, Courts Can Still Freeze Debtor Assets

As Florida continues to draw new residents, those attracted by the assumption that it is a debtor-friendly locale are in for a surprise as the state's courts can, and do, recognize and enforce foreign judgments, asset freezes and injunctions, say John Chapman and Benjamin Taormina at Holland & Knight.


NJ Cannabis Strides Highlight Nearby States' Need To Legalize

As New Jersey's ballot measure approving adult-use cannabis gives the state a strong head start in the race to legalization, neighboring states Pennsylvania, New York and Connecticut need to move quickly to follow suit or risk losing out on significant cannabis tax revenue, say attorneys at Saul Ewing.


Carbon Capture Policy Should Be Aligned For Global Adoption

With support from both Republicans and Democrats, carbon capture, utilization and storage technology as a tool for decarbonization may be poised for domestic growth — but the U.S. and the European Union must coordinate their policies to promote a global approach, say Hunter Johnston and Jeff Weiss at Steptoe & Johnson.


Surveying Drug Pricing Reform: The Latest State Activity

Attorneys at Ropes & Gray explore four types of high-impact drug pricing initiatives at the state level — pricing transparency, pharmacy benefit manager controls, drug importation and value-based arrangements — examining how the current wave of reforms may affect drug companies' business operations.


Don't Fear IP-Antitrust 'Turducken' In Reverse-Payment Cases

Although some judges are apprehensive of a "turducken" analysis — a patent case stuffed inside a reverse-payment antitrust action — it is procedurally viable and may be a fair way to adjudicate the antitrust liability of generic companies settling Hatch-Waxman litigation, say attorneys at Katten.


How Joe Biden Will Change The FDA: Part 2

When the Biden administration takes control of the U.S. Food and Drug Administration, companies can expect to see increased attention to the safety of medical devices, the rigor of audits and inspections, and the concerns of consumer advocacy groups, say attorneys at Covington.


Del. Solera D&O Decision May Have Limited Impact

While the Delaware Supreme Court's recent decision in Solera is a blow for companies in the state seeking protection for certain key appraisal proceedings, the ruling hinges on the insurers' narrow definition of a violation that will trigger directors and officers coverage for securities-related claims, making it unlikely that other jurisdictions will follow suit, say attorneys at Hunton.


What UK Corporate Criminal Liability Reform Might Look Like

The Law Commission's recently announced review of Britain's corporate criminal liability laws could lead to reform options such as the introduction of a strict liability offense, which would be sure to improve prosecutorial chances of corporate convictions, says Aziz Rahman at Rahman Ravelli.


A Key To Helping Clients Make Better Decisions During Crisis

As the pandemic brings a variety of legal stresses for businesses, lawyers must understand the emotional dynamic of a crisis and the particular energy it produces to effectively fulfill their role as advisers, say Meredith Parfet and Aaron Solomon at Ravenyard Group.


Expect Major Changes In Aerospace And Defense Under Biden

President-elect Joe Biden is expected to significantly shift aerospace and defense industry priorities, revoke certain Trump administration government contractor policies, strengthen "Buy American" requirements, and increase use of defense and NASA budgetary authority to combat climate change, say attorneys at Hogan Lovells.



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AGs In A Pandemic

In this Expert Analysis series, state attorneys general share their enforcement priorities related to COVID-19.




Op-Eds


NY Right To Investigate Trump Consulting Fees For Tax Fraud

New York authorities correctly put aside political considerations and took the appropriate first step in any tax fraud investigation by seeking bank and corporate records to investigate potential connections between Trump Organization write-offs and income mirrored by Ivanka Trump's consulting company, says Daren Firestone at Levy Firestone.

The Ill-Fated Emergence Of The Bitcoin Balance Sheet

Other corporations may follow MicroStrategy's lead and invest in problematic Bitcoin, in what appears to be a new chapter of irresponsible corporate behavior, says cybersecurity consultant John Reed Stark.



Access to Justice Perspectives


Lack Of Access To Remote Court Proceedings Is Inexcusable

Blanket rules that bar recording or dissemination of remote public court proceedings impede presumptive common law and First Amendment right of access, greatly expand courts' powers over nonparties, and likely run afoul of U.S. Supreme Court precedent, says Matthew Schafer at ViacomCBS.





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