Expert Analysis


Series

Judging A Book: Pryor Reviews 'Scalia Speaks'

Christopher Scalia and Edward Whelan have published an indispensable collection of the late Justice Antonin Scalia's best speeches. "Scalia Speaks: Reflections on Law, Faith, and Life Well Lived" puts on full display Justice Scalia’s skilled writing, quick wit and uncommon wisdom on a wide range of topics — from law to turkey hunting, says Judge William Pryor of the Eleventh Circuit.


How The 3rd Circ. Stripped Down The 'Bare Metal' Defense

After the Third Circuit's recent decision in the Asbestos Products Liability Litigation case, manufacturers within the court's jurisdiction should not expect claims against them to be dismissed under a “bare metal" defense, unless they can show that they could not have known that asbestos would later be added to their products, says Cory Lapin of Manion Gaynor & Manning LLP.


Best Practices For Defeating Attempts To Void Contracts

Plaintiffs often use several theories to avoid contract provisions that limit their recovery or bar their lawsuit. However, while it is obviously advisable to refrain from affirmatively misleading signatories, courts otherwise generally treat a contract's terms as the final expression of the agreement and disregard arguments involving lack of ability, time or inclination to read contracts, say attorneys with Shook Hardy & Bacon LLP.


In A Town's Fight Against Gas Drilling, Preemption Is Key

In Seneca v. Highland Township, a federal judge in Pennsylvania recently reiterated that local laws prohibiting natural gas drilling are preempted by state and federal statutes. While the township was creative in its tactics, the decision ultimately strengthens the industry's hand, and may expedite similar disputes in the future, says Garrett Trego of Manko Gold Katcher & Fox LLP.


Force Majeure During Construction — Are You Ready?

Lawyers spend considerable time defining the scope of force majeure events and associated relief mechanisms in construction agreements, but often move onto the next deal after contracts are signed. It is important to stay involved, and be prepared for issues that may arise during project execution, say David Strickland III and Michelle Northcutt of King & Spalding LLP.


New Immigration Policy Focuses On Alcohol-Related Charges

In an apparent change in policy, U.S. immigration authorities are now taking a hard-line approach to individuals who have alcohol-related charges or offenses, marking a significant shift in how U.S. Citizenship and Immigration Services and the U.S. Department of State treat visa holders in this predicament, says Ian Macdonald of Greenberg Traurig LLP.


Testing Judicial Control Over Attorney Conduct At Depositions

While few depositions feature such entertaining colloquies by counsel as are found in Corsini v. U-Haul, obstructive conduct at depositions continues to run rampant in many circles. And courts are increasingly open to taking a greater role in policing improper conduct, say Mark Shifton and Mila Shtelmakher of Seiger Gfeller Laurie LLP.


Anticipating Senate Questions For USPTO Director Nominee

A review of every U.S. Patent and Trademark Office director confirmation hearing since 1999 reveals the likely questions the Senate will ask Andrei Iancu at his upcoming hearing for that position, says Andrew Baluch, a partner at Smith Baluch LLP and former adviser at the USPTO.


Arbitration Agreements And FCA: Lessons From 9th Circ.

In a False Claims Act case last month, the Ninth Circuit rejected a company’s attempt to push its former employee into arbitration under a very broadly worded agreement that she had signed at hiring. The My Left Foot ruling offers some pointers for employees wishing to avoid the tilted field of forced arbitration, say Scott Oswald and Andrew Witko of The Employment Law Group PC.


Building A Diverse Bankruptcy Bench Is Critical

The bankruptcy court bench is the least diverse bench in the federal court system — and by a lot — which is curious given that bankruptcy judges are selected by other federal judges rather than appointed by the president. Diversification of the Article I benches is within the control of other federal judges, says U.S. Bankruptcy Judge Frank Bailey of the District of Massachusetts.


The Benefits Of Numerical Models In Enviro Litigation

Numerical models provide a powerful tool to quantify complex flow, sediment and contaminant transport behavior in environmental litigation, but they can be complicated and resource-intensive. Marcia Greenblatt of Integral Consulting shares insights on working with technical experts to navigate multiple models and how to best apply numerical models in litigation.


Financial Crisis Anniversary

The Inside Counsel Revolution

The role of the general counsel has significantly grown in importance, with the GC now often replacing the senior partner in the outside law firm as the primary counselor for the CEO and the board. This inside counsel revolution was given great impetus by the financial crisis that started 10 years ago, says Ben Heineman Jr., former general counsel of General Electric Co.


Stockpiling Biologics Under Hatch-Waxman Protection

Recent biosimilars cases have raised questions regarding whether the Hatch-Waxman Act safe harbor provision protects commercial stockpiling. Though there is surprisingly little case law on this issue, the existing case law supports that stockpiling is at least partially protected, say attorneys with Haynes and Boone LLP.


More Answers On Noncompetes From 7th Circ.

The interpretation and enforcement of noncompete agreements in the context of a sale of a business are a frequent source of angst for both the buyer and seller. However, with its recent decision in E.T. Products v. D.E. Miller Holdings, the Seventh Circuit offered guidance on several important questions, say Eric Amdursky and Tyler Runge of O’Melveny & Myers LLP.


SEC Goes Global, Again

The U.S. Securities and Exchange Commission has not been shy about enforcing the Foreign Corrupt Practices Act globally. But a recent case against Mexican homebuilding company Desarrolladora Homex and its executives makes clear that the SEC will not hesitate to enforce against foreign companies other provisions of the federal securities laws as well, says Brian Neil Hoffman of Holland & Hart LLP.


Rejecting Tuition Payment Clawback: A Logical Result

When the parent of a child who attends private school files for bankruptcy, the school may be sued to return tuition payments for the benefit of the parent's creditors. A bankruptcy court recently dismissed two such claims, providing schools with well-reasoned opinions on which to rely, says James Bentley of Schulte Roth & Zabel LLP.


Arbitration Can Help Solve Tech Litigation Problems

Cost, time to resolution and inexperienced decision-makers top the list of challenges with litigation involving technology companies. Arbitration offers many advantages over litigation, but often companies use a poorly considered arbitration clause, engage the wrong outside counsel or select an unskilled arbitrator, says Gary Bendon of the Silicon Valley Arbitration & Mediation Center.


How District Courts Treat Patent Eligibility In Life Sciences

We analyzed district court litigations in the life sciences from June 2013 through June 2017. During that period, 26 sets of biotechnology-related patents were adjudicated for patent eligibility, and slightly more than half survived, say Eldora Ellison and Jaume Canaves of Sterne Kessler Goldstein & Fox PLLC and Paul Golian, assistant general counsel at Bristol-Myers Squibb Co.


NY Commercial Division Rule Changes Promote ADR Use

Recent rule changes in the Commercial Division of the Supreme Court of New York are the latest of several efforts made to foster greater use of mediation and to institutionalize alternative dispute resolution, says Christopher Palermo, a litigation partner at Bleakley Platt & Schmidt LLP who serves on the Commercial Division Advisory Council.


Undertaking Property Repair Or Replacement As An Insurer

When it comes to paying for damaged property, perhaps the riskiest option is undertaking repair or replacement of the property. Insurers must carefully evaluate their potential liability, which may outweigh the marginal savings, say Brian Devilling and Paul Ferland of Foran Glennon Palandech Ponzi & Rudloff PC.




Special Series


My Supreme Court Debut

As the end of the year draws near, all eyes are turning to the U.S. Supreme Court and the decisions it will issue during its October 2017 term. In this series, attorneys that have argued before the high court reflect on their very first time standing before the justices.




Notes From A Law Firm Chief Privacy Officer

As more law firms become the targets of major cyberattacks, more firms may consider appointing a chief privacy officer. In this series, CPOs at four firms discuss various aspects of this new role.

15 Years Of Sarbanes-Oxley

A decade and a half after the Sarbanes-Oxley Act was enacted in response to accounting scandals at Enron, WorldCom and elsewhere, attorneys, accountants and compliance experts measure the law's impact in this special series.



Op-Eds


Australian Football Transgender Ban Is Discriminatory

Because the recent decision to block transgender female Hannah Mouncey from playing in the women’s Australian Football League was not based on evidence, it is discriminatory against transgender athletes and based on sexual stereotyping. This is a serious civil rights problem, and not only in Australia, says Ronald Katz of GCA Law Partners LLP.

Tribal Immunity May Not Be Wonder Drug For Allergan

Even though four of Allergan’s patents were invalidated in the Eastern District of Texas on Monday, the inter partes reviews will likely continue. While the Saint Regis Mohawk Tribe's sovereign-immunity motion may succeed at the Patent Trial and Appeal Board, Congress can — and should — render this whole debate moot, says Joshua Landau, patent counsel at the Computer and Communications Industry Association.



Q&A


BigLaw Alums Q&A: Fisch Sigler's John Battaglia

By having the freedom to select our work, we can ensure that high-quality opportunities remain a staple of the professional diet. Working on cases you believe in, for clients you like, and on challenging issues reminds you that you are part of a profession, and not a cog in a billing system, says John Battaglia of Fisch Sigler LLP.