Expert Analysis


Series

40 Years Of FCPA: An Update From The DOJ

U.S. Department of Justice prosecutors and law enforcement partners have secured more foreign bribery-related trial convictions and guilty pleas this year than in any other year in the history of the Foreign Corrupt Practices Act, in fact by almost twice as much. These are all significant cases with significant impacts, says Daniel Kahn, chief of the DOJ's FCPA Unit.


Why Information Governance Is More Important Than Ever

It used to be that hiring a good law firm was the single most important thing a company could do when facing litigation. You could now make the case that an organization’s most powerful asset in prosecuting or defending a claim is its information, says Linda Sharp, associate general counsel of ZL Technologies and chair of the ACC Information Governance Committee.


A Review Of Massachusetts' Marijuana Industry In 2017

It's been an exciting year for the marijuana industry in Massachusetts, with cities and towns now determining whether to embrace the new economic development opportunities presented by recreational marijuana. However, investment in the industry remains risky because the cultivation, use, sale and possession of marijuana remains a crime under federal law, say William Moorman and John Ottaviani of Partridge Snow & Hahn LLP.


Diversity Poised To Take Center Stage In 2018 Proxy Season

Diversity on corporate boards has been a matter of interest among U.S. investors for years, but 2017 marked a turning point. We expect gender diversity in particular to take center stage in the 2018 annual meeting season, say attorneys with Vinson & Elkins LLP.


New Obstacles For VPPA Plaintiffs At 9th Circ.

Although the lure of hefty statutory damages under the Video Privacy Protection Act means that VPPA litigation will almost certainly continue, the Ninth Circuit's recent decision in Eichenberger v. ESPN is another setback for plaintiffs attempting to map this pre-internet law onto modern platforms that serve video content, say attorneys with Gibson Dunn & Crutcher LLP.


Litigation Trend Links Climate Change And Human Rights

One key takeaway from the Bonn Climate Talks — which recently brought together negotiators from close to 200 countries to discuss implementation of the Paris agreement — is that energy companies must seriously consider potential lawsuits linking their business operations with human rights violations and climate change, say Viren Mascarenhas and Kayla Winarsky Green of King & Spalding LLP.


Ordinary Observer And Informed User Walk Into A Bar

Elizabeth Ferrill and Clare Cornell, partners of Finnegan Henderson Farabow Garrett & Dunner LLP, stage a transatlantic conversation about design infringement in a small pub somewhere in the middle of the Atlantic Ocean.


Biometrics In The Workplace: Best Practices For Compliance

Biometric technology may provide higher security and greater efficiencies for employers, but with new technology comes new risks and a patchwork of new legal frameworks to be followed, say attorneys with Akerman LLP.


Cosmetic Companies Must Plan For New Regulation  

U.S. senators on both sides of the aisle have proposed cosmetic reform bills, making it likely that Congress will soon pass legislation regulating personal care products. This, in turn, is likely to result in greater litigation against companies making those products, say attorneys at Mintz Levin Cohn Ferris Glovsky and Popeo PC.


Lessons On Losses From 3 Recent FCA Settlements

Three recent False Claims Act settlements can teach health care organizations important lessons, such as how swiftly and transparently reacting to government inquiries can save a company's bottom line and the public's trust, says Garrett Mott of Hanson Bridgett LLP.


Weighing Wedding Cake Questions At The High Court

Last week, the U.S. Supreme Court heard oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission. While there are many ways the court could slice this case, it seems likely the vote will be 5-4 with Justice Anthony Kennedy casting the deciding vote, says Joel Kurtzberg of Cahill Gordon & Reindel LLP.


The Future Of Bitcoin Futures

Trading in bitcoin futures opened this week on the CBOE Futures Exchange, with offerings from the Chicago Mercantile Exchange and the Cantor Exchange to soon follow. In designing their contracts, the exchanges had to make decisions about contract size, tenor, and trading and settlement conventions, with some notable consequences, say Colin Lloyd and James Michael Blakemore of Cleary Gottlieb Steen & Hamilton LLP.


How District Courts Split Over 'Infringing Acts'

Following the U.S. Supreme Court’s May 2017 TC Heartland decision, an open question was how to interpret the patent venue’s statutory language regarding “has committed acts of infringement” in the Hatch-Waxman Act context. Two courts have thus far addressed this issue, but each has interpreted the statutory language differently, say attorneys with Morgan Lewis & Bockius LLP.


A GDPR Primer For US-Based Cos. Handling EU Data: Part 2

In the final part of this series about the General Data Protection Regulation, attorneys at Gibson Dunn & Crutcher LLP explain the stringent restrictions placed on cross-border data transfers to countries outside of the European Union, various compliance mechanisms and penalties, and potential deviations in implementation among EU member states.


The Science And Controversy Of Offshore Wind

As the U.S. Bureau of Ocean Energy Management embarks on several studies to better understand offshore resources and species, fishing interests have sued BOEM to challenge not only an offshore wind lease, but the process used to award leases and conduct environmental analysis. The future of offshore wind in the United States may be at stake, says Brook Detterman of Beveridge & Diamond PC.


ESMA Guidance Creates Questions For EU Exchanges

The European Securities and Markets Authority has published a dubious interpretation requiring exchange members of EU exchanges to be locally regulated if they provide clients with access to the exchanges. This directly conflicts with the U.K.'s regulators and Parliament and creates potential issues in other countries such as Germany, says Thomas Donegan of Shearman & Sterling LLP.


Series

40 Years Of FCPA: Compliance, Past And Future

More than any other statute, the Foreign Corrupt Practices Act has fueled the growth of the compliance industry. While the expansion of corporate compliance is a positive development, the fear-driven and FCPA-centric approach has also produced unfortunate consequences, says ethics consultant Hui Chen, who served as the U.S. Department of Justice's first-ever compliance counsel.


How Will Hiring With AI Impact Discrimination Claims?

While artificial intelligence has the potential to limit unwanted biases in a company's hiring process, it's unlikely that using AI will ever completely eliminate the issue, and allegations and lawsuits claiming discrimination in the hiring process will nonetheless persist, says Amy Strauss of Fisher Phillips.


10 Tips For Managing Litigation Risk In Sell-Side M&A

While it is important to focus on “getting the deal done,” a seller should also take into account and plan for potential deal litigation. For a public company contemplating a sale-of-control transaction, shareholder litigation is very likely, say attorneys with Gibson Dunn & Crutcher LLP.


Autonomous And Connected Vehicles: The Year In Review

During 2017, advances in the state of autonomous vehicle technology, and in the development of a new regulatory framework, moved at a rapid pace. While some industry experts think fully automated passenger vehicles will arrive by 2020, there are signs it will happen sooner, say Lawrence Hamilton, David Whitestone and Joel Roberson of Holland & Knight LLP.




Special Series


Judging A Book

Are the latest books on the judicial system worth reading? Federal judges share their thoughts in this series of book reviews.




Financial Crisis, 10 Years On

One decade since the first signs of trouble, members of the Financial Crisis Inquiry Commission, Obama administration officials, legal industry experts, and others explore the profound impact of the Great Recession.

Making Pro Bono Work

In this series, attorneys explore the challenges and rewards of pro bono volunteering in the legal profession.



Op-Eds


BigLaw Is Behind The Automation Curve

In its new report on the effects of automation in the workplace, McKinsey Global Institute identifies lawyers as less susceptible to the sort of automation that could put one-third of American workers out of a career by 2030. This may seem reassuring, but it doesn't mean automation won't disrupt our bottom line, says Michael Moradzadeh of Rimon PC.

Admitting There's A Workplace Bias Problem Is Only Step 1

If we want to eliminate bias and discrimination in the workplace, from here we need to stop clapping each other on the back for recognizing an obvious problem and move forward to eliminate bias that still exists, says Gary Gansle of Squire Patton Boggs LLP.



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.