Expert Analysis


Time For Costs Budgeting In International Arbitration?

With the introduction of costs budgeting in the form of Precedent H, English litigation has taken a more cost-conscious approach to the resolution of disputes than its arbitration counterpart. For arbitration users, a Precedent H counterpart does not exist, says Margarita Michael of O’Melveny & Myers LLP.


What Act 170 Means For Shareholder Litigation In Pa.

Pennsylvania corporations should not overlook Act 170’s provisions concerning shareholder litigation, which differ from Delaware’s standards and procedures in several important respects. The newly effective law is more demanding of shareholders and deferential to the properly considered determinations of a corporation, say Michael Kichline and Stuart Steinberg of Dechert LLP.


Understanding The Amended Executive Branch Gift Rules

The ethical guidelines governing the conduct of federal officials have received much media attention in recent months. Given new changes to the rules around acceptance of gifts by executive branch personnel, both federal employees and those who interact with them on a personal or professional basis should know what is and is not permissible, say attorneys with WilmerHale.


Ability-To-Repay Enforcement Comes To Auto Finance

In recent years, regulators and enforcement agencies have eagerly exercised their authority to prosecute what they perceive as unfair or deceptive acts and practices. Recent events suggest that they may be gearing up to hit the accelerator by using UDAP theories to extend ability-to-repay principles to auto finance, say attorneys with Buckley Sandler LLP.


Scott Gottlieb And The Future Of The FDA

The Senate Committee on Health, Education, Labor and Pensions recently held a hearing on the nomination of Scott Gottlieb to be the next commissioner of the U.S. Food and Drug Administration. His comments on FDA policy issues including drug pricing and approvals, food safety and labeling, and the tobacco “deeming” rule offer guidance on the future of the agency, say attorneys from Kelley Drye & Warren LLP.


No Contractor Liability For False Statement Gov't Didn't See

Aggressive prosecutors could argue that a Section 1001 violation is complete as soon as a falsified record is entered into a government contractor’s internal database — even if the contractor rectifies the situation before the record is actually presented to the government. But two cases provide contractors with a ready counterpoint, say Joseph Barton and Laura Alexander of Sheppard Mullin Richter & Hampton LLP.


Why Colbert Can't Play 'Colbert': Tonight's Word — Copyright

Last week, "The Late Show" daringly flouted Viacom’s wishes by having host Stephen Colbert reprise his "Colbert Report" character to bid farewell to Bill O’Reilly. With CBS exercising such blatant disregard for Viacom’s demand, the situation is sure to come to a head, says Adam Litwin of Bell Nunnally & Martin LLP.


Calif. Insurance Regulation Defies Trump’s America

As California finds itself at odds with the Trump administration, the state is actively working to cement its regulatory framework over hot-button issues that will have knock-on impacts on the insurance industry. Gov. Jerry Brown will likely seek to strengthen the state's regulatory power, and the California courts have recently decided two major cases in favor of the Department of Insurance, says Nathaniel Braun of Selman Breitman LLP.


Conn. High Court Sheds Light On 'ABC' Test Application

The Connecticut Supreme Court's recent decision in Southwest Appraisal Group LLC v. Administrator Unemployment Compensation Act provides helpful guidance for Connecticut employers and makes clear that whether an individual actually performs services for more than one entity is not dispositive of part C under the "ABC" test for determining independent contractor status, says Eric Sussman of Day Pitney LLP.


Examining FINRA Plan To Liberalize Advertising Rules

A recent proposal by the Financial Industry Regulatory Authority to liberalize restrictions on certain types of performance projection materials may alleviate some of the conflict that has existed in performance advertising rules under the Investment Advisors Act and FINRA rules, says Matthew Silver of Drinker Biddle & Reath LLP.


5 Principles To Simplify Compliance For Fintech Startups

As fintech companies grow, so too will their compliance burdens. Small and emerging companies can engage in principle-based compliance to identify and minimize the risks that will most likely land them in a regulator’s crosshairs, say Sean Wagner and Nathan Viebrock of Bradley Arant Boult Cummings LLP.


Fox’s Handling Of O’Reilly Complaints Is A Cautionary Tale

To be fair, any company can have a Bill O’Reilly in its midst. The question is whether the company does the right thing once it realizes what’s going on, says Ann Fromholz, a workplace investigation attorney and founder of The Fromholz Firm.


Trump’s Environmental Agenda: The 1st 100 Days

The first 100 days of the Trump administration have been momentous for environmental policy. Brian Israel and Ethan Shenkman of Arnold & Porter Kaye Scholer LLP outline what we know so far about President Donald Trump’s environmental agenda, identify key unknowns, and discuss five major obstacles that Trump will face as he seeks to implement his environmental agenda.


Protecting Communications From PR Privilege Issues

Two recent opinions out of Pennsylvania and California state courts offer important lessons for avoiding claims of privilege waiver when using public relations consultants during litigation, say attorneys with Pepper Hamilton LLP.


How To Reduce Cost Of UK Deferred Prosecution Agreements

When combined, the penalties of all agreed-to deferred prosecution agreement settlements in the United Kingdom total roughly 530 million pounds, but public fines are often just the tip of the iceberg. Though a good compliance program may be the best defense against corporate wrongdoing, executives should nonetheless take steps to cooperate with prosecutors and embrace independent scrutiny, says Jonathan Middup of Ernst & Young LLP.


A Closer Look At Financial CHOICE Act 2.0

The recently released amended version of the Financial CHOICE Act builds on and retains key features of the original act adopted in the House Financial Services Committee last year, including its targeted approach of amending, repealing or replacing individual provisions of the Dodd-Frank Act. There are, however, several key modifications in the revised legislation, say attorneys with Sullivan & Cromwell LLP.


How Due Process Limits Personal Jurisdiction

For purposes of general jurisdiction, multinational or multistate companies must consider the litigation attributes of the state where they choose to incorporate, or locate their principal place of business, as well as where they locate relatively large portions of their operations. Personal jurisdiction issues in each state should be assessed as part of sound risk management, says Daniel Jaffe of Husch Blackwell LLP.


Uber: The Turning Of The Tide

Uber Technologies may have reached the end of its worldwide efforts to dominate transportation markets with its popular ride-hailing app. Although Uber has met opposition in the past in both the marketplace and in court, particularly in California, new developments in China and in New York City may be bringing Uber’s nearly unstoppable advance to a halt, says Thomas Dickerson of Herzfeld & Rubin PC.


Tips For Managing Response To A Gov't Investigation

Today’s enforcement environment presents major challenges for unprepared, ill-equipped companies. For any government investigation, early assessment and proper data preservation are key considerations, say Vincenzo Toppi of CohnReznick LLP and Todd Haley of eTERA Consulting.


Deciphering DC's New Universal Paid Leave Law

Washington, D.C.’s Universal Paid Leave Amendment Act of 2016 became effective earlier this month, instituting one of the nation’s most expansive paid leave laws. Yet, even as the act takes effect, uncertainty about how the law will work in practice persists, say Bill Miossi and Scott Phillips of Winston & Strawn LLP.




Special Series


Counsel To Counsel: Insights From Law Firm GCs

General counsel at four law firms share the biggest issues they face in an increasingly complex legal environment.

3 Tax Reform Perspectives

In this recent series on federal tax reform, practitioners explore current proposals and initiatives, and reflect on how past efforts to change the system may provide lessons — and warnings — for today's would-be tax reformers.

Evaluating FCPA Pilot Program

Law360 recently published five guest articles examining the impact and potential future of the U.S. Department of Justice's Foreign Corrupt Practices Act pilot program. Did you miss one?



Op-Eds


Time For High Court To Clarify Presumption Of Patent Validity

Courts continue to invalidate patents under Section 101 without adhering to the presumption of validity standard mandated by Congress in Section 282 and the U.S. Supreme Court in i4i. The Supreme Court can set the record straight in Broadband iTV v. Hawaiian Telcom, say Charles Macedo and Sandra Hudak of Amster Rothstein & Ebenstein LLP.

Let's Talk About Half-Hearted Innovation

Allowing attorneys to telecommute may seem like a great fix for law firms. But without significant changes to the firm's culture, telecommuting is just a patch applied to the problem of attrition, says Michael Moradzadeh, founding partner of Rimon PC.



Q&A


Plaintiffs Bar Perspective: Grant & Eisenhofer’s Beth Graham

For plaintiffs attorneys, sticking to offense rather than going on defense in response to something the other side puts up is not always easy, says Beth Graham, director of Grant & Eisenhofer's complex pharmaceutical and medical device litigation practice.