Expert Analysis


9th Circ. 'Bad Spaniels' Ruling Rewrites TM Dilution Playbook

The Ninth Circuit’s recent ruling that each element of the Jack Daniel's packaging parodied by the Bad Spaniels dog toy must be independently assessed for fame narrows trademark owners' ability to use a flagship mark's halo effect to protect the entire brand from tarnishment, say attorneys at Reed Smith.


Using CFIUS' New Risk Matrix And Mitigation Guidance

The Committee on Foreign Investment in the United States' national security matrix and related mitigation guidance provides a common vocabulary for allocating regulatory and mitigation risk in transaction documents, and may help focus any discussions with the agency, say attorneys at Simpson Thacher.


New F-1 Rule Will Cloud Day 1 Practical Training Backup Plans

A new F-1 visa rule scheduled to take effect Sept. 15 could significantly affect employers of international students by replacing duration of status with fixed admission periods and making curricular practical training a less predictable retention option, says Dillon Colucci at Greenberg Traurig.


Tackling DOL Tips On When Midday Commutes Are Paid Time

Two recent U.S. Department of Labor opinion letters explain when travel between home and work is compensable, providing wage compliance guidance to employers that want to offer flexible work schedules, and establishing clearer rules as litigation over travel time compensability heats up, say attorneys at Jackson Lewis.


How Texas' Protein Powder Probe Reflects Prop 65's Influence

Texas' recently announced investigation into contaminants in protein powder illustrates how California's Proposition 65, with its hundreds of listed chemicals, safe harbor levels and consumer warnings, may have an influence on enforcement and regulation in other states, say attorneys at Buchalter.


How Economic Analysis Informs Consumer Lending Disputes

A new wave of consumer lending class actions makes clear that economic analysis of control, pricing, repayment risk and borrower behavior will be central to litigation involving fintech platforms, earned wage access products and online lending models as regulatory enforcement recedes, say economists at The Brattle Group.


Q3 Numbers Refine Picture Of SEC Enforcement Trajectory

A snapshot of the U.S. Securities and Exchange Commission’s third-quarter enforcement actions suggest the program may be smaller than in prior years, but that it is increasingly concentrated around market abuse and individual misconduct, especially related to insider trading, say Adrienna Huffman, Jan Jindra and Erik Johannesson at The Brattle Group.


Insurer Spoliation Ruling Flags Continuing Duty To Preserve

An Illinois federal court’s recent decision to impose spoliation sanctions on the insurer in H.D. Smith v. Cincinnati Insurance provides practical guidance for navigating long-tail coverage litigation, underscoring the importance of evaluating preservation obligations in light of the full life cycle of a dispute, say attorneys at Morgan Lewis.


What DOJ Fraud Division Rule Resolves, And What It Doesn't

The U.S. Department of Justice’s recently published final rule answers many outstanding questions about the newly created National Fraud Enforcement Division, but overlapping mandates could result in parallel investigations and diverging viewpoints between multiple sets of prosecutors, say attorneys at Gibson Dunn.


Banks Face Lighter CRA Burdens Under Regulators' Proposal

Banking regulators' recently proposed rule to redo the framework under the Community Reinvestment Act would materially change which banks are subject to its most demanding requirements and how regulators evaluate lending, services, community development activities and strategic plans, says James Williams at Venable.


Fed. Circ. In July: Meeting The Enablement Requirement

The Federal Circuit's decision in Wyeth v. AstraZeneca last month exemplifies when a generalized conception of an invention is insufficient to enable the full scope of asserted patent infringement claims, and may lead to more enablement challenges, say attorneys at Knobbe Martens.


Calif. Ruling Opens Del. Cos. Up To Stockholder Inspection

A California appellate court's recent decision in Salamon v. Orchid Global underscores that despite last year's amendments to the Delaware General Corporation Law, Delaware companies with principal operations in California remain subject to California's broader and more stockholder-protective inspection regime, say attorneys at Sheppard.


10 Ways To Avoid Privacy Risks Revealed In AI Notetaker Suits

Litigation claiming Otter.ai trained its AI-powered transcription tool on user conversations and a recent complaint alleging Granola’s notetaking bot joined video calls unbeknownst to participants show companies should assess these technologies as communications-capture tools with privacy and wiretap risks, says Jennifer Ruehr at Hintze Law.


What 9th Circ. Devas Ruling Means For AI Infrastructure Deals

The Ninth Circuit's recent confirmation of a $2 billion arbitration award in Devas Multimedia's arbitration against a state-owned commercial arm of India’s space agency creates a cross-border enforcement road map for disputes that are bound to arise from the current generation of artificial intelligence infrastructure deals, says Fernanda Merouco at Davis Wright.


9th Circ. Wage Ruling Shows Arbitration Pacts Are Still Useful

After years of uncertainty for California employers, the Ninth Circuit’s recent Cocom v. ABM Aviation decision signals that workplace arbitration agreements remain a powerful and enforceable tool — if thoughtfully drafted and employment-focused, says Benjamin Runge at Thompson Coburn.


Drug Rulings Clarify Pricing Test And Penalty Reviews

The Court of Appeals’ recent drug price rulings in Pfizer v. Competition and Markets Authority and Auden Mckenzie v. CMA are both notable for how the court settled the legal test for excessive pricing, as well as for how it has restated the Competition Appeal Tribunal’s obligations when reviewing penalties, say lawyers at Wilson Sonsini.


4 Ways‌ NY's Bivens Act Changes Civil Rights Legal Strategy

New York state's new Bivens Act creates a statutory civil rights cause of action against federal officials, changing presuit investigations, discovery and settlement leverage, and creating an opportunity to pursue more structural changes — so plaintiffs counsel will need to adjust their civil rights litigation playbooks, say attorneys at Jacob Fuchsberg Law.


NLRB Ruling Highlights Risk From Employee Handbook Test

A National Labor Relations Board judge's recent decision to strike down a workplace rule that only theoretically inhibited protected employee activity highlights the great risks employers face under the board's 2023 ruling in Stericycle and explains why this strict standard may be rolled back under the newly Republican-majority board, says Daniel Johns at Cozen O'Connor.


The Expanding Litigation Front Against The Data Center Boom

A survey of environmental and land use claims raised in disputes over data center projects across the country shows that the outcomes of these disputes will have significant implications not only for the future of data center development, but for infrastructure projects in general, say attorneys at Arnold & Porter.


ERC Filing Deadlines Raise Tax Adviser Liability Risk

To minimize their risk, employee retention credit providers and tax advisers should understand that agreements to extend clients’ two-year deadline for challenging disallowances are not effective until the IRS countersigns, and implement an action plan to track filing deadlines and consider other proactive steps, says Michael Williams at CFOMW.



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Opinion


Justices Gave Energy Industry A Needed Constitutional Reset

Energy companies must understand the regulatory and compliance implications of two recent U.S. Supreme Court rulings reaffirming that agencies must derive their legitimacy from faithfully executing the law, says Brunini Grantham's Curt Hébert, former member of the Federal Energy Regulatory Commission.

A Guiding Principle For The SEC On Exempt Capital Markets

The U.S. Securities and Exchange Commission's recently proposed Regulation Crypto Assets borrows selectively from other capital-raising exemptions while giving crypto issuers materially different terms, and those unexplained differences reveal the need for a regulatory approach of presumptive parity, says Brian Christie at the Crowdfunding Professional Association.



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.