Expert Analysis


Best Practices As More Retailers Join The Secondhand Space

Retailers entering the burgeoning secondhand market face best practice issues that traditional sellers may not be accustomed to considering, including the risk of deceptive reference pricing and extensive regulations under California's secondhand dealer law, say attorneys at Steptoe & Johnson.


Resolving When Fla. Consumer Statute Gives Cos. Standing

Courts in Florida have struggled over whether a business has standing to bring a claim under the Florida Deceptive and Unfair Trade Practices Act when consumers suffer harm — but there is an argument that has not yet been considered that could resolve the question, say Aaron Weiss and Michael Zilber at Carlton Fields.


What Blockchain Means For The Future Of US Health Care

As the U.S. plays catchup with other countries that have introduced blockchain into their health care systems, the technology is poised to drastically change the industry's revenue cycles, data management and beyond, which will result in better care for patients and more assurance for provider reimbursements, say Michael Ruggio and Jacob Butz at Ice Miller.


Insurance Considerations Amid Increased Use Of Drones

The growing use and rapidly evolving regulation of drone technology across industries raise tricky insurance coverage questions and increase exposure to third-party liability and first-party loss, say attorneys at Covington & Burling.


App Store 'Nutrition Labels' Raise New Privacy Risks For Cos.

In light of recent enforcement actions and privacy class actions, it is critical for businesses to review their mobile applications’ privacy "nutrition labels" — which provide an overview of how user data is processed— to ensure that they accurately reflect an app's activity and are consistent with the business's other disclosures, say attorneys at Troutman Pepper.


DOL Proposal Signals Relaxed Rules For ESG Investing

The U.S. Department of Labor’s recently proposed rule on how retirement plans can make investment decisions that consider environmental, social and governance factors significantly revises regulations adopted at the end of the Trump administration, paving the way for plan fiduciaries to more easily consider ESG factors, say attorneys at Morgan Lewis.


Calif. Wage And Hour Issues When Adding Paid Holidays

California employers that introduce floating or choose-your-own holidays to promote a more inclusive workplace will need to address the wage and hour concerns this flexibility presents, particularly with regard to the payout of vacation wages at termination, says Camille Gustafson at Paul Plevin.


What SEC's Growing Whistleblower Incentives Mean For Cos.

The U.S. Securities and Exchange Commission recently surpassed $1 billion in total awards made to more than 200 individual whistleblowers — two important milestones that reflect the commission’s embrace of whistleblower tips as a source of market information on corporate wrongdoing, and highlight the need for companies to reevaluate their internal reporting frameworks, say attorneys at Arnold & Porter.


What To Watch In Telehealth Enforcement

Telehealth providers should pay attention to three enforcement trends that have emerged at the U.S. Department of Justice and take certain steps now to reduce the risk of fraud, say Kate Driscoll and Logan Wren at MoFo.


Future Of UK Transnational Enforcement Is Uncertain

Though U.K. and EU law enforcement agencies have made some recent progress in working together in the aftermath of Brexit, looming challenges raise questions regarding the U.K.'s ability to cooperate, says John Binns at BCL Solicitors.


How Defendants Can Predict, Mitigate DOJ Labor Cartel Fines

Given President Joe Biden's focus on antitrust enforcement in the labor markets, defendants in no-poach and wage-fixing prosecutions can anticipate aggressive volume-of-commerce calculations, and should look to broader criminal antitrust case law to determine how fine and sentencing enhancements may be applied, say attorneys at Baker McKenzie.


Avoiding Preemployment Pitfalls In A Hot Job Market

In light of the pandemic’s turbulent effect on the labor market, employers may want to pay careful attention in preemployment negotiations to avoid liability exposure during verbal discussions and when drafting written agreements, says Travis Tatko at Capell Barnett.


More Prop 65 Regulation Of PFAS Means More Risks For Cos.

The California Office of Environmental Health Hazard Assessment's plans to expand regulation of per- and polyfluoroalkyl substances under Proposition 65 will likely increase litigation and enforcement risks for companies doing business in the state, say Brett Winters and Graham Ansell at GSI Environmental and Will Wagner at Arnold & Porter.


Nine Point Ruling Limits High Court Bankruptcy Contract Rule

A Delaware federal court's recent decision in Caliber North Dakota v. Nine Point Energy Holdings — that nondebtor counterparties' contract rights terminate upon bankruptcy rejection when they depend upon the debtor's future performance — establishes an important outer boundary of the rejection-as-breach rule established by Supreme Court precedent, say attorneys at Proskauer.


Contractual Limits On Liability Only Go So Far In Delaware

The recent Delaware Chancery Court ruling in Online HealthNow v. CIP OCL reiterates that contractual fraud claims cannot be eliminated with the stroke of a pen, and serves as a reminder that Delaware courts will not permit statutory limitations on liability to excuse intentional fraud, say attorneys at Shearman.


ESG Disclosure Mandate Faces Hurdles Regardless Of Path

While the U.S. Senate is unlikely to sign onto the Corporate Governance Improvement and Investor Protection Act, which would require companies to make more comprehensive environmental, social and governance disclosures, the U.S. Securities and Exchange Commission may attempt ESG disclosure rulemaking without congressional approval — but it won't be easy, say attorneys at King & Spalding.


How To Overcome Risks Of Virtual Expert Testimony

As expert witnesses increasingly testify via videoconference at trial, attorneys should develop strategies to address the risks of a disinterested jury during both direct and cross-examination, focusing on factors like demonstrative evidence, eye contact and more, say Robert Goodson and Golriz Chrostowski at Wilson Elser.


Financial Planning Tips For Retiring Law Firm Partners

As the pandemic accelerates retirement plans for many, Michael Delgass at Wealthspire Advisors outlines some financial considerations unique to law firm partners, including the need for adequate liquidity whether they have capital accounts or pension plans.


Feds May Need Power To Take State Lands For New Grid

The Biden administration's plan to move the U.S. electricity sector to renewable energy will require extensive new high-voltage transmission infrastructure, but since states have the ability to block construction of power lines, Congress will need to give federal regulators eminent domain authority over state-owned lands to get the job done, say attorneys at V&E.


4 Practical Pointers For Litigating A Design Patent Case

The recent Federal Circuit opinions in Campbell Soup v. Gamon Plus and the case of SurgiSil underscore the substantial differences between design patents and utility patents, but intellectual property litigators can better prepare themselves to dive into this area by keeping in mind a few critical recommendations, says Nathan Sabri at MoFo.



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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.




Embracing ESG

In this ongoing Expert Analysis series, in-house counsel share how they are adapting to the growing importance of environmental, social and corporate governance factors.




Opinion


State Crypto Lending Concerns Point To SEC Action Ahead

A growing mix of states have issued enforcement actions and raised concerns around cryptocurrency lending programs, highlighting the inevitability of a U.S. Securities and Exchange Commission sweep of unregistered crypto platforms offering digital lending products, says cybersecurity consultant John Reed Stark.

9th Circ. COVID Coverage Ruling Misapplies Burden Of Proof

The Ninth Circuit’s recent decision in Mudpie v. Travelers Casualty Insurance, dismissing a COVID-19 insurance coverage claim, incorrectly applied the burden of proof to the policyholder instead of the insurer, disregarding the crucial differences between third-party liability and first-party all-risks insurance policies, says Lee Epstein at Flaster Greenberg.



Access to Justice Perspectives


Why Law Schools Should Require Justice Reform Curriculum

Criminal defense attorney Donna Mulvihill Fehrmann argues that law schools have an obligation to address widespread racial and economic disparities in the U.S. legal system by mandating first-year coursework on criminal justice reform that educates on prosecutorial misconduct, wrongful convictions, defense 101 and more.





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