Expert Analysis


AI Rise In Healthcare Demands New Cybersecurity Strategies

As artificial intelligence-related capabilities are increasingly integrated into medical devices and healthcare operations, organizations must adapt their compliance playbook to address evolving cybersecurity needs and implement lifecycle-based risk assessment approaches, say attorneys at Covington.


The Preemption Gap In Prediction Market High Court Petitions

The Supreme Court is considering three certiorari petitions following a split in prediction market litigation between the Third and Ninth circuits, but one of the petitions would not allow the court to reach the express preemption question, which would leave the dispute half-resolved, says Jordan Garman at Withers.


4 Opinions Showcase Hurdles To Trademarking Names

Four opinions issued by the Trademark Trial and Appeal Board this year show that names are only registrable as trademarks when they point to the applicant and to nobody else, says Anton Hopen at Trenam Law.


How Data Center Projects Can Navigate Wyo. Siting Process

As opposition to data center development grows nationwide, the way that Wyoming is handling the issue through its industrial siting process offers a counterintuitive lesson: More process, not less, can provide both meaningful scrutiny and a clear path forward for projects, says Jeffrey Pope at Holland & Hart.


Tips From Apex Ruling On Handling Workers' Public Criticism

A National Labor Relations Board judge’s recent finding that Apex Fintech Services illegally reined in an employee’s public criticism on LinkedIn should caution employers that overbroad policies and reflexive responses may not only fail to defend the company’s reputation, but compound risks of federal labor charges, say attorneys at Krevolin Horst.


Series

Fintech Regulator Outlook: 5 Lessons From Minnesota

Minnesota's recent cryptocurrency kiosk ban and virtual currency custody rules hold several broad compliance lessons: Digital asset companies must map regulated activities, strengthen third-party oversight and engage regulators early to innovate responsibly, says Deputy Commissioner of Financial Institutions Mike Crow at the Minnesota Department of Commerce.


Hims & Hers Suit Spotlights Health Data-Sharing Privacy Risks

Regulators' complaint against telehealth company Hims & Hers alleging deceptive practices serves as a reminder that the privacy principles developed under consumer protection laws and predating omnibus statutes remain in force, and sensitive data governance continues to be a crucial component of compliance, say attorneys at Venable.


4 Paths To AI Safety Coordination Amid Antitrust Debate

Frontier artificial intelligence companies have more room for collective safety work than the debate over an antitrust waiver suggests, with several existing avenues providing different degrees of protection and oversight, says Evan Miller at V&E.


Reel Justice: 'The Furious' And Journalistic Evidence

Viewing "The Furious” from a litigator’s perspective highlights nuances that arise when gathering evidence from journalistic investigations, serving as a reminder to not only ask whether evidence is relevant, but also what legal framework governs the person or entity holding it, says Veronica Finkelstein at Widener-Delaware Law.


How Real Estate Funds Can Use Umbrella Partnership REITs

Recent transactions demonstrate how the conversion from a Delaware statutory trust to an umbrella partnership real estate investment trust may benefit real estate funds, and why attorneys should treat the structuring of this conversion as a coordinated diligence and drafting exercise, say attorneys at Kelley Drye.


'Demon Hunter' IP Suit Highlights Reverse Confusion Perils

A metal band named Demon Hunter's recently filed lawsuit against Netflix, alleging that consumers mistakenly believe it to be connected to the "KPop Demon Hunters" movie, provides a useful vehicle for examining the reverse confusion doctrine and its practical implications, say attorneys at Troutman Pepper.


How Cannabis Rescheduling Is Reshaping Bankruptcy

As broader cannabis rescheduling awaits a recommended decision, cannabis companies continue to test the boundaries of the Bankruptcy Code, with the recent Cannabist Chapter 15 recognition order suggesting that governmental resistance may be reduced in future filings, say attorneys at Thompson Coburn.


How Calif. Privacy Bill Could Change CIPA Tracking Cases

If California Gov. Gavin Newsom signs S.B. 690, the bill could materially reduce the leverage behind a pen-register-only claim or demand, so California Invasion of Privacy Act website tracking claims should not be evaluated the same way they were six months ago, says Alexandra Samofalova at Spencer Fane.


Risk Considerations As EEOC Moves To Ax Data Reports

While the U.S. Equal Employment Opportunity Commission's recent proposal to rescind requirements for workforce demographic reporting wouldn't bar employers from collecting data, companies would have to be especially careful to gather and use such information in legally defensible ways, say attorneys at Foley & Lardner.


A Look At Litigation Risks From Financing The AI Buildout

Artificial intelligence infrastructure financing can create gaps between accounting presentation and project-level economic exposure, and those gaps may affect management communications and how accounting experts can reconstruct the financial record when those communications become the subject of a securities dispute, says Erik Johannesson at Brattle Group.


For Faster FDIC Review, Banks Must Front-Load Prep

Banks seeking to benefit from the efficiency promised by the Federal Deposit Insurance Corp.’s new two-phase review of deposit insurance applications must prioritize filing comprehensive submissions or risk the fate of applicants recently rejected by the Comptroller of the Currency, say attorneys at Skadden.


5th Circ. Embedding Decision Could Recast Copyright Claims

The Fifth Circuit's decision in Emmerich v. Particle Media addresses decades of ambiguity surrounding whether embedded content can constitute copyright infringement, potentially affecting how defense counsel fight against such claims, say attorneys at Greenberg Glusker.


A Look At Loper Bright's Uneven Effect On Immigration Law

Recently decided cases in the Second and Fourth Circuits show the disparate effects independent judicial review has had on long-standing immigration precedents since the U.S. Supreme Court's 2024 ruling that ended Chevron deference, says Danny Alicea at the Legal Aid Society.


Resetting For Success After Corporate Litigation Loses Focus

Corporate litigation that has lost strategic coherence may barrel disastrously ahead if counsel’s understanding of the matter drifts from the client’s goals, but cases can be wrenched back on track by diagnosing how facts have evolved, determining where resources are justified and deploying practical strategies for restoring discipline, says Jonathan Morris at Gordon Rees.


How Bifurcation And Verdict Forms Can Sway Jury Outcomes

The bifurcated trial structure used in a Nevada personal injury case — where the jury recently awarded the plaintiff more than $56 million — highlights a strategic option that litigators often overlook and raises considerations about the potential advantage of carefully assembled verdict forms, says litigation consultant Clint Townson.



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Do artificial intelligence tools have any practical judicial applications? In this Expert Analysis series, state and federal judges explore potential use cases for AI in adjudication and beyond.




Opinion


New CMS Medical Device Pathway May Have Limited Effect

The Centers for Medicare & Medicaid Services' new pathway for giving Medicare beneficiaries earlier access to certain medical devices bears similarities to previous programs that did not advance coverage significantly, and thus may only benefit certain manufacturers, say attorneys at King & Spalding.

Fed. Circ. Should Redefine Functionality In Design Patents

The Federal Circuit should establish a framework for identifying the relevant article of manufacture to which functionality analysis applies, in order to enhance doctrinal clarity and better reflect the statutory foundations of design patent law, say attorneys at Knobbe Martens.



Access to Justice Perspectives


NJ Fingerprint Ruling Shows Forensic Reliability Isn't Static

The New Jersey Supreme Court’s recent State v. Lee decision, holding that developments in forensic science warranted a renewed assessment of fingerprint evidence, reaffirmed the trial judge's role as gatekeeper and underscored that the admissibility of expert testimony is an ongoing inquiry, not a one-time determination, say attorneys at Morgan Lewis.