Expert Analysis


AI Risks May Recalibrate 'Reasonable Security' Standards

A definitive answer to what constitutes reasonable vulnerability management in the age of artificial intelligence is still emerging, but the answer is likely less a reset of the standard than a recalibration of how organizations meet it, say Scott Loughlin at Hogan Lovells and Mike Priest at Globe Life.


Accenture's FCA Deal Shows DEI Risks For Gov't Contractors

The U.S. Department of Justice recently settled allegations that Accenture falsely certified compliance with antidiscrimination requirements in its federal contracts, underscoring how diversity goals can become a False Claims Act issue when the company requests payment from the government, say attorneys at Bass Berry.


DOJ Directive Gives Contractors A Fraud Risk Road Map

For government contractors, the 10 factors described in the U.S. Department of Justice's recent corporate fraud enforcement directive functions as a de facto scoring rubric for internal audits that mirrors what prosecutors will prioritize, say attorneys at Spencer Fane.


Key Risk Assessment Gaps To Note From NY Cyber Guidance

Covered entities should take a fresh look at the compliance gaps flagged in recent New York State Department of Financial Services guidance on "deficient cybersecurity programs," particularly around scope, asset inventories and documentation, say attorneys at Mayer Brown.


Tort Liability When AI Goes Rogue: Strict Liability

If artificial intelligence agents misbehave in unpredictable ways, and no reasonable precaution can prevent resulting harms, then a negligence regime may not provide sufficient remedy, and strict liability might be adapted to cover agents' misconduct — but the common notion of strict liability fits this situation imperfectly, says Donald Hawthorne at Carter Ledyard.


Where SEC's Transfer Agent Plan Would Change Compliance

The U.S. Securities and Exchange Commission’s recent proposal to update the federal regulatory framework for transfer agents would comprehensively modernize the old task-specific regime by centering speed, operational resilience, compliance governance and technology-neutral recordkeeping, say attorneys at Morgan Lewis.


Open Issues After 2nd Circ.'s Airport Phone Search Ruling

While the Second Circuit’s recent U.S. v. Alisigwe decision confirms border agents' broad authority to conduct routine manual cellphone searches at ports of entry, significant questions remain about more wide-ranging forensic searches at the border, say attorneys at Baker Botts.


FTC's Changing Model Raises Questions About Its Mission

Federal Trade Commission leaders have recently sketched a vision of an agency that continues an enforcement role distinct from the U.S. Department of Justice's, even as a shift toward greater presidential control makes enforcement more responsive to changes in administrations, say attorneys at Wiley.


NFL Coverage Ruling Sets Limits on Long-Tail Claim Defenses

A New York appellate court's recent decision — holding that National Football League players who sustained neurological injuries had suffered multiple occurrences for insurance coverage purposes — may also be used to limit insurers' efforts to declaim coverage for other long-tail injury cases, including sexual abuse claims, say attorneys at SDV Fenchurch.


Why Inter Partes Reviews May Be On The Rebound

Recent inter partes review data shows that rates of referrals and institution rates at the U.S. Patent and Trademark Office are increasing, potentially indicating, among other reasons, that patent challengers are adjusting to the USPTO's policy changes, say attorneys at Sterne Kessler.


2nd Circ. EFAA Ruling Shifts Employer Litigation Strategy

In Diaz-Roa v. Hermes Law, the Second Circuit recently held that, under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, employers can't carve out nonharassment claims and send them to arbitration, which has implications for discovery, litigation costs and resolution strategy in EFAA-covered disputes, say attorneys at Krevolin Horst.


The Future Of PCAOB Enforcement After Post-Jarkesy Win

While the Public Company Accounting Oversight Board recently defeated procedural and structural challenges to its enforcement program in D.C. federal court, it's unclear what claims and sanctions the PCAOB can bring against respondents — and whether it's interested in instituting disciplinary proceedings generally, says Mike Plotnick at King & Spalding.


Tort Liability When AI Goes Rogue: Negligence Theory

If reasonable care in the use of artificial intelligence agents cannot eliminate the risk of third-party harm, then AI companies and users of AI agents must consider whether negligence theory provides an adequate framework for assessing harm caused by agents that go rogue, says Donald Hawthorne at Carter Ledyard.


DC Circ. Ruling Clarifies Standards For Buy America Waivers

The D.C. Circuit's recent decision to uphold a Federal Railroad Administration Buy America waiver offers clarifying guidance about assessing domestic availability, distinguishing manufacturing capabilities from future production plans and creating a well-supported administrative record, says Todd Overman at Bass Berry.


How Senate-Passed Bill May Reshape NCAA Antitrust Liability

With the U.S. Senate's recent passage of the Protect College Sports Act, practitioners should not wait for the U.S. House of Representatives' approval to prepare for shifts in potential antitrust protections, compensation, media rights deals and conference mergers, say attorneys at Norton Rose.


Uniting BSA, Sanctions Compliance As Treasury Targets Iran

The past 18 months of Treasury Department policies demonstrate expectations that financial institutions not merely obey sanctions against Iran, but also help expose how it moves money, making it essential that banks eliminate silos between their Bank Secrecy Act and sanctions compliance teams for an integrated response, says Jonathan Harrington at Bradley Arant.


Balancing Independence And Costs In Ch. 11 Investigations

A dispute in the Hughes Satellite Systems Chapter 11 case, pending in Texas bankruptcy court, raises a recurring issue in corporate restructurings: preserving the value of an independent corporate investigation and the investigative authority the Bankruptcy Code gives other constituencies, without making the estate pay twice for the same work, says attorney Kenneth Rosen.


Digging Into Dems' Letter On Subpoena Secrecy Demands

Lawmakers’ recent letter arguing that federal agencies’ use of boilerplate nondisclosure language in subpoenas pressures recipients into silence may lead to a significant overhaul of the current framework, but in the meantime, companies should review their rights and options, say attorneys at Crowell & Moring.


How Bank Lobby's Suit Tests OCC's Crypto Charter Powers

The Independent Community Bankers of America’s recent lawsuit challenging the Office of the Comptroller of the Currency’s ability to charter cryptocurrency companies marks another chapter in the struggle over the appropriate regulatory framework for digital assets, while raising a classic administrative law question at its most basic level, say attorneys at Ballard Spahr.


Bribery Verdict Offers Guide To Post-Pause FCPA Priorities

A former Goldman Sachs investment banker's recent Foreign Corrupt Practices Act conviction offers insights into how the U.S. Department of Justice is applying its FCPA guidelines following the Trump administration's 2025 pause on enforcement, and illustrates the importance of a company’s escalation procedures and follow-through, say attorneys at Debevoise.



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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


Justices' Climate Ruling Should Preserve State Tort Claims

As recent oral arguments in Suncor Energy v. Boulder County demonstrated, the case hinges on long-standing principles of federalism that allow state and local governments to protect their resources and citizens — and if the justices rule based on precedent, Suncor should lose, says William Buzbee at Georgetown University Law Center.

The SEC Crypto Proposal Rests On A Term No One Can Define

The U.S. Securities and Exchange Commission's recently proposed Regulation Crypto Assets is its most ambitious attempt to set rules for the crypto industry, but its repeated use of the phrase "essential managerial efforts" means it perpetuates the uncertainty the regime is meant to cure, says Joseph A. Hall at Davis Polk.



Access to Justice Perspectives


3 Reforms Are Needed To Surface Hidden Evidence

The overturned murder conviction of Richard Glossip, who will soon be retried, demonstrates why several measures are needed to help protect against due process violations caused by prosecutors withholding evidence, say Marc Levin and Khalil Cumberbatch at Council on Criminal Justice.