Expert Analysis


How To Prepare If Justices Curb Gov't Contractor Immunity

Given the very real possibility that the U.S. Supreme Court will determine in GEO v. Menocal that government contractors do not have collateral immunity, contractors should prepare by building the costs of potential litigation, from discovery through trial, into their contracts and considering other pathways to interlocutory appeals, says Lisa Himes at Rogers Joseph.


What To Mull After 9th Circ. Ruling On NLRB Constitutionality

The Ninth Circuit recently rejected three constitutional attacks on the National Labor Relations Board in NLRB v. North Mountain Foothills Apartments, leaving open a debate about what remedies the NLRB can award employees and creating a circuit split that could foretell a U.S. Supreme Court resolution, say attorneys at Proskauer.


Class Actions At The Circuit Courts: November Lessons

In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses five recent rulings and identifies practice tips from cases involving claims related to oil and gas royalty payments, consumer fraud, life insurance, automobile insurance, and securities violations.


E-Discovery Quarterly: Recent Rulings On Dynamic Databases

Several recent federal court decisions illustrate how parties continue to grapple with the discovery of data in dynamic databases, so counsel involved in these disputes must consider how structured data should be produced consistent with the requirements of the Federal Rules of Civil Procedure, say attorneys at Sidley.


Assessing The SEC's Changing Approach To NFT Regulation

Early U.S. Securities and Exchange Commission actions on nonfungible tokens pushed for broad regulation, but subsequent court decisions — including a recent California federal court ruling in Adonis Real v. Yuga Labs — and SEC commissioners' statements have narrowed the regulatory focus toward a more fact-specific approach, say attorneys at Wilson Elser.


Comey Case Highlights Complex Speedy Trial Rights Calculus

Former FBI Director James Comey’s decision to waive his Speedy Trial Act rights in the false statement prosecution against him serves as a reminder that the benefits of invoking these rights are usually outweighed by the risks of inadequate preparation, but it can be an effective strategy in the right case, says Sara Kropf at Kropf Moseley.


Where Crypto Mixing Enforcement Is Headed From Here

Recent developments involving crypto mixers, particularly the Tornado Cash verdict, demonstrate that the Justice Department's shift away from regulation by prosecution does not mean total immunity, rather reflecting an approach that prioritizes both innovation and accountability, says David Tarras at Tarras Defense.


Stadium Security Takeaways Amid Gaps In Drone Regulation

As the risk of drones to sports stadium security grows, legal practitioners in the industry should focus on the need for rapid deployment of emergency services, crowd control, communications, strong organizational structure, and engagement across local, state and federal authorities, says Jennifer Daskal at Venable.


Decoding Arbitral Disputes: UK Assignability Of ICSID Awards

The recent High Court decision in Operafund v. Spain clarifies the stance of English law on an important question to investors, funders and sovereigns, concluding that awards under the International Centre for Settlement of Investment Disputes Convention are not commodities that can be traded, says Josep Galvez at 4-5 Gray's Inn.


Drafting For Distress: D&O Policy Tips Ahead Of Ch. 11 Filings

Considering recent bankruptcy statistics and the economic climate, now is a good time for companies to revisit their directors and officers liability insurance coverage, as understanding how these programs are structured and which terms matter at placement or renewal can materially improve protection for leaders of a distressed company, say attorneys at Reed Smith.


What To Do If A Retirement Plan Participant Is Deported

Given recent immigration policy changes in the U.S., many businesses are experiencing employee deportations, but retirement plan administrators should still pay and report benefits to avoid violating the plan, the Employee Retirement Income Security Act or tax reporting requirements, says Teri King at Smith Gambrell.


The Legal Issues With AI Agents In Consumer Transactions

Enabling artificial intelligence agents to handle not just research and recommendations, but the execution of purchases themselves, fundamentally alters commercial relationships and introduces new practical and legal questions for card issuers, merchants, acquirers and consumers, say attorneys at Davis Wright.


Breaking Down Article 12 Of The Uniform Commercial Code

Thirty-two states and the District of Columbia have enacted Article 12 of the Uniform Commercial Code, providing the alternative to perfection by control of assets like cryptocurrency and nonfungible tokens, but before accepting these assets as collateral, lenders and creditors should consider how to best maintain priority, say attorneys at Miller Nash.


Questions To Ask Inventors Before Drafting AI Patents

Practitioners should use interview questions tailored to help inventors articulate the patentable aspects of their artificial intelligence and machine learning innovations, as this can elicit information needed for a patent application to forestall indefiniteness, abstract-idea and enablement challenges, say attorneys at Marshall Gerstein.


Why Foreign Cos. Should Prep For Increased SEC Oversight

With the recent trading suspensions of 10 foreign-based issuers listed on the Nasdaq, an enforcement action against a U.K. security-based swap dealer and the announcement of a cross-border task force, it's clear that the U.S. Securities and Exchange Commission will expand oversight on foreign companies participating in the U.S. capital markets, says Tejal Shah at Cooley.


Perspectives

3 Ways To Boost Access To Justice In NYC Small Claims Court

The New York City Small Claims Court is a critical venue for pro se litigants seeking civil justice, but the system is under strain, and three practical reforms are needed to help strengthen fairness, consistency and access, says Charles Montorio-Archer at the New York City Civil Court.


Prison Body Cams Raise Health Privacy Compliance Issues

The increasing use of prison staff body cameras to enhance transparency and safety presents correctional healthcare partners with new risk management questions where they must carefully reconcile the benefits of surveillance with the imperative to protect patient privacy, say attorneys at Gordon Rees.


How Litigating Antitrust Fix Helped GTCR Prevail In Court

An Illinois federal judge's recent denial of the Federal Trade Commission's injunction request in the GTCR acquisition of Surmodics joins a developing series of cases in which deal parties have prevailed against government antitrust challenges by proposing a post-complaint fix and litigating the as-amended deal, say attorneys at Paul Weiss.


Bid Protest Spotlight: Jurisdiction, Contractors, Mentors

Recent decisions from the U.S. Court of Federal Claims and Small Business Administration highlight the scope of Tucker Act jurisdiction over bid protests; small business contractor eligibility determinations under the ostensible subcontractor rule; and limits on continued qualification for the SBA's mentor-protégé joint venture program, says Thomas Lee at MoFo.


ITC Ruling Highlights Conflicts Hurdles For Law Firms

As supply chains become more interconnected, a recent U.S. International Trade Commission order — disqualifying a complainant's law firm for concurrently representing a third-party supplier relevant to the case — underscores the reality that conflicts may increasingly lurk within the building blocks of devices, says Matt Rizzolo at Ropes & Gray.



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Opinion


Punitive Damages Awards Should Be Limited To 1st Instance

Recent verdicts in different cases against Johnson & Johnson and Monsanto showcase a trend of multiple punitive damages being awarded to different plaintiffs for the same course of conduct by a single defendant, a practice that should be deemed unconstitutional by the U.S. Supreme Court, says Jacob Mihm at Polales Horton.

Courts Must Continue Protecting Plaintiffs In Mass Arbitration

In recent years, many companies have imposed onerous protocols that function to frustrate plaintiffs' ability to seek justice through mass arbitration, but a series of welcome court decisions in recent months indicate that the pendulum might be swinging back toward plaintiffs, say Raphael Janove and Sasha Jones at Janove Law.



Access to Justice Perspectives


3 Ways To Boost Access To Justice In NYC Small Claims Court

The New York City Small Claims Court is a critical venue for pro se litigants seeking civil justice, but the system is under strain, and three practical reforms are needed to help strengthen fairness, consistency and access, says Charles Montorio-Archer at the New York City Civil Court.