Expert Analysis


Ransomware Attacks Raise Key Legal Considerations

Ransomware is a growing concern and can have significant legal implications for affected entities. There are six things to keep in mind as you work to understand and respond to the threat of these disruptive attacks, say Lisa Sotto, Brittany Bacon and Jeffrey Dunifon of Hunton & Williams LLP.


Senate Bill May Force Rise In Suits For Opioid Funding

As the Senate seeks to reduce funding and services for opioid addiction, states and governments seeking new sources of funding may have increased incentive to sue manufacturers and distributors of prescription opioids. An increase in suits may shift the financial burden of the opioid crises to the pharmaceutical defendants and their liability insurers, say Adam Fleischer and Patrick Bedell of BatesCarey LLP.


What Companies Can Learn From Dish’s $280M TCPA Penalty

Considering both the actual exposure and ultimate result, U.S. v. Dish Network LLC starkly highlights the absolutely devastating penalties provided by the Telephone Consumer Protection Act and the telemarketing sales rule. But the case is much more than a cautionary tale regarding the exorbitant monetary liability, say Jason Tompkins and Jonathan Hoffmann of Balch & Bingham LLP.


Martin Shkreli Goes On Trial — What To Expect

Jury selection in the securities fraud trial of Martin Shkreli has begun, with prospective jurors hurling inflammatory rhetoric at him, calling him a “snake” and “the most hated man in America.” It seems almost inconceivable that Shkreli will testify, says former prosecutor Bennett Gershman now at Pace Law School.


Regulatory Scrutiny In Insurance M&A Transactions Is Rising

A new era of increased regulatory scrutiny over insurance company mergers and acquisitions transactions appears to be dawning, if recent events are any indication. In this environment, it would behoove potential acquirers to be well versed in current regulatory expectations to securing statutory approval of a deal, says Robert Fettman of Hogan Lovells US LLP.


Minnesota’s Law Of Prejudgment Interest Needs Clarity

The Minnesota federal district court's recent decision in Woods v. K. R. Komarek is the latest example of the continuing lack of clarity in Minnesota’s law of prejudgment interest on liquidated or readily ascertainable claims for money damages. A conflict in this area has lingered since 1984 and needs to be resolved, says Michael Olafson of Lindquist & Vennum LLP.


Series

Leegin's 10-Year Checkup: US Influence On RPM Overseas

In recent decades, as the rule of reason has been extended to analysis of vertical restraints in U.S. antitrust law, competition law regimes in other countries have likewise applied greater flexibility to the analysis of nonprice vertical restraints. However, none has gone so far as to adopt the U.S. Supreme Court's Leegin rule for resale price maintenance, say attorneys with Jones Day.


What TC Heartland Could Mean For MDL Panel Patent Cases

In 2016, intellectual property cases accounted for less than 5 percent of those pending before the Judicial Panel on Multidistrict Litigation. But the U.S. Supreme Court's TC Heartland decision may spark a significant uptick, says Timothy Sendek of Lathrop Gage.


A Quiet But Telling Year For Criminal Law In Supreme Court

The U.S. Supreme Court decided 22 cases with criminal law issues this term, and none will be remembered as landmark decisions. Yet, because they covered a wide range of issues, they painted a detailed picture of the court's sensibilities about criminal law, which are likely to influence deliberations in the years to come, says Michael Kelly of Hogan Lovells.


Why Amazon's Whole Foods Buy Is Likely To Be Cleared

Given the relatively small presence of Whole Foods in the grocery industry, the idea that this deal gives Amazon an unfair advantage in either the physical or online grocery market appears overblown. Equally overblown appear to be concerns that the transaction will result in buyer power, says Lisl Dunlop, co-head of Manatt Phelps & Phillips LLP's antitrust and competition practice group.


Solving The Privilege-Penalty Predicament: Part 2

The U.S. Tax Court in AD Investment held that partnerships that asserted penalty defenses waived attorney-client privilege. This ruling has had a major impact on tax compliance and tax litigation fairness. But a procedural solution can balance fairness to the IRS with fairness to the taxpayer, and fulfill Congress' intent to use penalties to encourage voluntary compliance, say attorneys with Mayer Brown LLP.


Rules Of The Road For Accessing Capital In Europe

Despite the advances of the European single market, there remains a confusing combination of EU and nation-specific rules governing the sale of fund products in Europe. Attorneys with Dechert LLP answer some commonly asked questions and explain how to sell alternative investment funds in the European Economic Area.


Revisiting Enforcement Of EEOC Subpoenas At 9th Circ.

In April, the U.S. Supreme Court remanded U.S. Equal Employment Opportunity Commission v. McLane back to the Ninth Circuit to apply an abuse of discretion standard of review. Unsurprisingly, the Ninth Circuit relied on its earlier analysis to once again conclude that the district court should have enforced the EEOC’s subpoena, says Mark Wiletsky of Holland & Hart LLP.


When Trade Secrets Cases Go Criminal: Part 1

A fairly routine civil trade secrets lawsuit between Uber and Waymo recently took a more dramatic turn, with a criminal referral from the presiding judge. Grand juries, federal agents and indictments are not standard fare for the lawyers who typically handle trade secrets disputes. But they may become more familiar in the years to come, say Joshua Robbins and Adam Sechooler of Greenberg Gross LLP.


FINRA Continues To Step Up Focus On Senior Investors

The Financial Industry Regulatory Authority recently introduced new sanction guidelines that allow FINRA staff to consider the vulnerability of customers in determining appropriate sanction levels. These guidelines are only one of many recent FINRA publications related to the protection of senior investors, say Bruce Bettigole and Sarah Razaq Sallis of Eversheds Sutherland.


Why We Must Teach Self-Driving Cars How To Crash

The National Highway Traffic Safety Administration’s policy on automated vehicles has sparked debate on a number of issues, but one remains unaddressed: How should self-driving cars make ethical decisions when an accident is unavoidable? The data shows that how moral algorithms are (or are not) regulated could impact the acceptance of driverless vehicles, says Todd Benoff of Alston & Bird LLP.


Limits On 'Self-Help' Discovery In FCA Cases

It is not uncommon for an employee to take company documents that the employee believes will support a claim under the False Claims Act. Courts have allowed such activity, but this right is not unlimited. Where courts draw the line, however, is not uniform, say attorneys with Orrick Herrington & Sutcliffe LLP.


The Changing Economics Of Sports Stadiums And Arenas

In this short video, Scott Zolke of Loeb & Loeb LLP discusses sports stadium and arena economics, explaining why it’s more important than ever that professional sports teams have the opportunity to build and own their own stadiums and arenas, and the group dynamic among team owners, leagues and local municipalities.


An Interview With Floyd Abrams

It was a privilege to spend a half-hour on the phone with the nation's foremost First Amendment lawyer. Floyd Abrams and I discussed his career, his new book and what he sees in his free-speech crystal ball. And he was a very good sport when I asked if it is constitutionally protected to yell inside a movie theater: “Citizens United is a terrible decision and should be set on fire,” says Randy Maniloff of White and Williams LLP.


Bucking Tradition: NewLaw And The Coming Millennials

Recent surveys show that law firms won't be able to rely on the flood of associates their business model demands as long as they require them to dedicate all day, most nights, every weekend and all holidays to firm business, says Jill Dessalines, founder of Strategic Advice for Successful Lawyers and former assistant GC at McKesson Corp.




Special Series


FERC At 40

In 1977, the Federal Power Commission was replaced by the Federal Energy Regulatory Commission, and the U.S. energy system entered a new era. This series takes stock of FERC's past, present and future.

Revisiting Affiliated Ute

Forty-five years after the U.S. Supreme Court's ruling in Affiliated Ute Citizens of Utah v. United States, defense and plaintiffs attorneys explore the decision's progeny in the Supreme Court and various circuits.

10 Years Of KSR

This series explores how the U.S. Supreme Court's 2007 decision in KSR v. Teleflex has affected obviousness analysis and the patent landscape.



Op-Eds


Why Whole Woman’s Health Still Matters 1 Year Later

One year ago the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt decisively rejected the widespread anti-choice tactic of restricting women’s reproductive rights with sham legislation. A new lawsuit recently filed in Louisiana reveals exactly why that ruling is the most important decision on abortion rights in a generation, says Nancy Northup, president and CEO of the Center for Reproductive Rights.

How Nevada Is Preparing For Blockchain Technology

Nevada Senate Bill 398 helps make the state welcoming to companies using blockchain technology, and gives legal recognition to blockchain transactions. It also incorporates blockchain into the definition of electronic records, and prohibits interference from local governments, says Ben Kieckhefer, a member of the Nevada Senate and director of client relations for McDonald Carano LLP.



Q&A


Plaintiffs Bar Perspective: Susman Godfrey's Matthew Berry

Cases are typically decided based on a relatively small number of key issues. It is critical not only to identify those key issues at the outset of the case, but to also plot a strategy for getting them resolved in your favor, says Matthew Berry of Susman Godfrey LLP.