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Expert Analysis


9th Circ. Decision Poses Employer Tip Credit Challenges

The Ninth Circuit’s recent decision in Marsh v. J. Alexander’s may significantly impair the ability of companies in the hospitality industry to pay a reduced wage to tipped employees. As a result, employers will need to be cautious when applying a tip credit toward minimum wages, says Margaret Grover of Wendel Rosen Black & Dean LLP.


Are You An Inadvertent US Shareholder In A Foreign Corp?

Attorneys at Eversheds Sutherland LLP provide a practical approach to evaluating ownership of non-U.S. entities under the new Subpart F rules and to dealing with the consequences of becoming a U.S. shareholder in a CFC in which you have no control.


A Closer Look At EPA Inspector General's New Strategic Plan

The U.S. Environmental Protection Agency's Office of Inspector General recently released its strategic plan for 2019 to 2023. Brian Stansbury and Leah Min of King & Spalding LLP provide insights on several noteworthy aspects, such as how the OIG will hold the EPA accountable for meeting 2019 targets and rely on data and business analytics to meet its goals.


4 Things To Watch In The Sears Bankruptcy

Following Sears' bankruptcy filing this week, there could be an announcement that the company has agreed to sell its most valuable stores to an affiliate of its largest shareholder, say Karen Park of ParkLaw LLC and Tara Desai of Greenhouse Branding Inc.


Foreign Investors May Benefit From Opportunity Zones

Galia Antebi and Nina Krauthamer of Ruchelman PLLC discuss the elements of the opportunity zone tax code provision and the related options for non-U.S. investors, who generally are not subject to U.S. taxation on dispositions of capital property other than U.S. real property.


A New Framework For 'Blocking Patents' And Obviousness?

Secondary considerations can be a useful tool for patent owners attempting to overcome an obviousness challenge. However, the Federal Circuit's decision last month in Acorda v. Roxane leaves the treatment of secondary considerations in question when a so-called “blocking patent” may exist, say Daniel Winston and Bryana McGillycuddy of Choate Hall & Stewart LLP.


Updated Rules For NYC's 421-a Tax Exemption Beneficiaries

New York City has been changing its 421-a tax exemption program, altering and clarifying prevailing wage requirements and imposing construction wage requirements for large new buildings. Daniel Bernstein of Rosenberg & Estis PC recaps the last two years of developments.


Series

Trade Wars: Top 10 Trump Trends

The inner workings of the Trump economics and trade team remain foggy, but the administration's trade strategy can be discerned from the public statements of the president and his advisers. Unpredictability, mercantilism, bilateralism and a willingness to accept collateral damage are among the most important patterns, says Charles Skuba of Georgetown University’s McDonough School of Business.


A State Of Flux For Derivative Actions In Florida

While the Florida Revised Limited Liability Company Act allows LLC members to bring a derivative action without first making a demand, the same cannot be said of the Florida Business Corporation Act. And a recent proposal to amend the FBCA doesn't do enough to create a uniform demand futility rule, says Andrew Polenberg of Becker & Poliakoff PA.


How New Calif. Law Will Impact Device Cybersecurity

A new California law requires specific types of cybersecurity protections for internet-connected devices. But the proliferation of state-based internet of things requirements could hinder efforts to develop and implement uniform national standards, says Laura Stefani of Mintz Levin Cohn Ferris Glovsky and Popeo PC.


EPA's New Approach To Interstate Air Pollution Under CAA

Over the last two decades, the U.S. Environmental Protection Agency’s efforts to address interstate air pollution under the Clean Air Act have yielded a series of complex federal regulatory programs. However, it's now signaling a method that involves greater deference to states’ analyses and determinations, says Norman Fichthorn of Hunton Andrews Kurth LLP.


No Bots About It: California's Crackdown On Chatbots

Last month, California Gov. Jerry Brown signed a law restricting the use of automated online “bot” accounts. The law was drafted in part to help prevent election interference through the propagation of fake news, but it will also impact businesses that use bots to communicate with customers, say attorneys at Steptoe & Johnson LLP.


The A-List For Managing Employment Law Risks And Costs

For most employers, the value of a class action waiver far outweighs the negatives of arbitration, but proactive in-house lawyers can do more than simply avoid class actions. The risk and cost of individual arbitration cases can be managed effectively with early case assessment and alternative fee arrangements, says Brendan Sweeney of Jackson Lewis PC.


How GDPR Affects Targeted Marketing

It's not very surprising that the first enforcement action under the European Union’s General Data Protection Regulation was directed at a North American advertiser. The GDPR is a global law, and advertisers and social networks, wherever they are located, will be among the early targets, says Christian Auty of Much Shelist PC.


Inside NonBelief Relief's Challenge To A Tax Filing Exemption

Last week, nonprofit NonBelief Relief filed a lawsuit in a D.C. federal court challenging the IRS' mandatory exception from filing annual information returns given to churches — but not to other nonprofits — on the grounds that it violates the First Amendment's establishment clause. Professor Samuel Brunson of Loyola University Chicago School of Law takes a first look at the case.


5 Cyber Insurance Pitfalls To Avoid In The UK

Faced with the opportunity to purchase cyber risk insurance to mitigate the damage caused by cyber events, prospective policyholder companies need all the help they can get in order to navigate this increasingly complex part of the U.K. insurance market, says Richard Mattick of Covington & Burling LLP.


Assignment Of Benefits Faces A New Hurdle In Florida

A Florida state appeals court's decision last month in Restoration 1 v. Ark Royal weakens assignment-of-benefit claims, holding that an insurer may require all insureds and mortgagees to provide written consent prior to executing an assignment-of-benefits agreement, says Margo Meta of Ball Janik LLP.


Issues High Court Will Explore In Copyright Registration Case

Soon the U.S. Supreme Court will hear Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case that could significantly affect how artists and companies strategize to protect copyrights, says Irene Lee of Russ August & Kabat.


How FTC Is Stepping Up Its Consumer Protection Efforts

The Federal Trade Commission, which once dominated the playing field on many consumer protection issues, appears poised to reclaim a more active role in connection with financial products and services, say attorneys with Buckley Sandler LLP.


Class Arbitration Goes To The Supreme Court

A U.S. Supreme Court ruling in Varela v. Lamps Plus that the Federal Arbitration Act displaces contractual interpretation rules likely would vacate the Eleventh Circuit's recent JPay decision, says James Bogan of Kilpatrick Townsend & Stockton LLP.




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.




Navigating NLRB

Employers today face a host of modern labor law issues amid a continually changing political and legal landscape. In this Expert Analysis series, former National Labor Relations Board members provide insights on recent issues before and within the board.

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.



Q&A


A Chat With Allens Pricing Chief Pier D'Angelo

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 Pier D'Angelo, chief pricing and practice officer at Allens.



Op-Eds


Only Congress Can Stop Courts' Patent-Eligibility Nonsense

The U.S. Patent and Trademark Office is planning guidance to address the patent examination problems created by the courts’ interpretation of Section 101. Instead, the USPTO should focus on the legislative fix proposed by intellectual property trade associations, says Nancy Linck of Linck Consulting.

Blockchain Cos. Should Welcome Regulation — Here's Why

A clearly delineated regulatory framework would go a long way in providing the certainty necessary for the digital asset economy to thrive, analogous to the stabilizing effect the formation of the U.S. Securities and Exchange Commission had on the stock market after the 1929 crash, says Anna Fridman of Spring Labs.