Expert Analysis


Operational AI Washing: Dismantling Claims Before Discovery

Operational AI washing claims can be rebuffed before discovery extracts their true costs by turning the documentary record established in earnings calls and public disclosures into a layered defense, which can exploit the Private Securities Litigation Reform Act’s heightened pleading standards, say attorneys at Akerman.


Internal Investigation Strategy After Glencore Privilege Ruling

The recent High Court ruling in Aabar Holdings v. Glencore PLC confirms that legal privilege can extend to intraclient communications, materially improving the position of companies that design investigations carefully, define legal channels properly and maintain discipline in their internal communications, says Nicolas Groffman at Harligan.


Law School Antitrust Dismissal Leaves Room For Review

A Pennsylvania federal court's recent dismissal of Risner v. Law School Admission Council, a class action that argued a centralized law school application platform violated antitrust law, reflects judicial reluctance to assume that higher education joint efforts are automatically anticompetitive, but also sets out a road map for future pleadings, say attorneys at Baker McKenzie.


Employer Tips To Prepare For Va. Family And Medical Leave

With Virginia's paid family and medical leave insurance program taking effect in two years, employers should develop processes for monitoring head count, coordinating with existing federal and state leave programs, and tracking intermittent leave, say attorneys at ArentFox Schiff.


What End Of SEC Settlement Gag Rule Means For Defendants

The U.S. Securities and Exchange Commission's recent rescinding of its gag rule prohibiting defendants from publicly denying allegations in settled SEC enforcement actions actually heightens the need to think strategically when negotiating resolutions and pursuing public denials of wrongdoing, say attorneys at Cleary.


NY's Tax On 2nd Homes Compounds Residency Tax Risks

New York’s recently enacted surcharge on high-value second homes reflects a nationwide legislative trend of using the residency tax framework more aggressively, which brings new considerations for business owners who maintain a residence while asserting domicile elsewhere, says Mark Parthemer at Glenmede.


Calif. Ruling Lowers Bar For Health Data Breach Claims

The California Supreme Court's ruling in J.M. v. Illuminate Education offers protection for non-healthcare companies that maintain health-related data but also adopts a new and more plaintiff-favorable standard for breach of confidentiality that companies maintaining any health-related data should address, say attorneys at Cooley.


AI Practices To Protect Trade Secrets Amid Unstable Case Law

Amid recent diverging district court approaches to whether inputting proprietary information into artificial intelligence tools could constitute a failure to take reasonable measures to safeguard secrets, trade secret owners must adapt their confidentiality practices to keep trade secrets secure, says Fitz Collings at MoFo.


Florida Atty Fees Ruling Could End Expert Testimony Mandate

For over 60 years, Florida appellate courts have required an evidentiary hearing and expert testimony to support the reasonableness of an attorney fee award, but the Florida Sixth District Court of Appeal's recent Ruffenach v. Deutsche Bank National Trust ruling could make substantive changes to this requirement, say attorneys at RumbergerKirk.


Texas Ruling Leaves Key Oil Royalty Question Unresolved

The Texas Supreme Court's recent decision in Fasken Oil and Ranch v. Puig clarifies that royalty reservations containing “free of cost forever” language do not bar deduction of post-production costs — but it leaves open whether prices producers report to royalty owners should reflect what unaffiliated buyers would pay, says Robert Foss at Hinds Feat Advisors.


How Gambling Cos. Can Defend 'Addictive Design' Suits

Following the recent wave of addictive design litigation against video game companies and social media platforms, it appears that the gambling industry may soon face similar claims — but operators may have stronger legal defenses available to them, say attorneys at White & Case.


Teva Ruling Offers Patentees New Support For Genus Claims

The Federal Circuit's recent decision in Teva v. Eli Lilly, finding that the Teva patents at issue are not invalid, offers an interesting counterexample against the recent trend of courts invalidating patents claiming a broad, functionally defined class of compounds, say attorneys at Cooley.


SEC's Co-Investment Relief Broadens Private Market Access

The U.S. Securities and Exchange Commission's recent no-action letter to J.P. Morgan Investment Management permits open-end funds to co-invest with affiliates, removing a long-standing barrier open-end fund sponsors have faced in sourcing private market investments at scale, say attorneys at Debevoise.


Defense Patent Holiday's Real Prize May Be Collab Potential

The true value of participating in the ongoing defense patent holiday program might lie not in access to technology developed by the U.S. Department of War, but in developing a working relationship with a federally funded lab and potentially achieving a cooperative research and development agreement, says Lawrence Kass at Steptoe.


Key Legal Considerations For Data Center Battery Storage

Battery energy storage systems have become essential infrastructure for data center development — but as trade, energy and tax policies continue to shift, companies operating in this space must understand the importance of supply chain requirements and industry-tailored contracts, says RJ Colwell at Davis Graham.


Justices Widen Path For Confiscated Cuban Property Claims

For Americans holding claims to confiscated Cuban property, the U.S. Supreme Court’s recent decision in Havana Docks v. Royal Caribbean Cruises means that the expiration of their property interest is no longer a bar and that any company using such property is now a potential defendant, say attorneys at Bracewell.


Recent Actions Signal Increased NYDFS Health Cyber Focus

The New York Department of Financial Services' recent $2.25 million settlement with Delta Dental indicates that it views cybersecurity enforcement in the healthcare and insurance sectors as an ongoing priority, and serves as a road map for the compliance gaps regulators are most likely to target, say attorneys at Crowell & Moring.


Employer Tips For Navigating Tenn. Noncompete Law

Although a new Tennessee law will limit the enforceability of noncompetes, including by categorically prohibiting them for lower-wage earners and establishing rebuttable presumptions on their duration, it also gives employers clearer guideposts for drafting enforceable agreements, say attorneys at Burr & Forman.


Your Next Litigation Hold Should Cover AI Chat Logs

The Delaware Chancery Court’s recent decision in Fortis Advisors v. Krafton to treat a CEO’s artificial intelligence chats as substantive evidence is being read as a discovery warning to litigators, but there is a second duty-to-preserve lesson that is especially pertinent to in-house counsel, say attorneys at Faegre Drinker.


'Operation Hard Money' Marks New Phase In Synthetic ID Fraud

A recent California mortgage fraud case dubbed "Operation Hard Money" shows synthetic identities are increasingly key to mortgage and money laundering schemes, so lenders would be wise to integrate verification and behavioral monitoring as fraud powered by artificial intelligence creates larger losses and recovery challenges, says Neal Levin at Rimon.



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Opinion


SEC Must Clarify Crypto Guidance For Investment Advisers

Until the U.S. Securities and Exchange Commission clarifies a conundrum created by recently issued guidance that classifies crypto tokens as digital commodities rather than securities, every registered investment adviser managing a digital commodity portfolio will be simultaneously compliant and exposed, says Nicole Trudeau at Wave Digital Assets.

Attys Should Aid Clients' AI Use While Safeguarding Privilege

Until legislatures enact laws expressly extending privilege to artificial intelligence queries, lawyers should try to shield their clients' case-related use of AI tools by offering them dedicated access on firms' enterprise accounts and utilizing a long-standing privilege precedent, says Joseph Rillotta at Meadows Collier.



Access to Justice Perspectives


Negotiating Power Imbalance In Pro Bono Client Relationships

The inherent power advantage of an attorney in a client relationship is magnified in pro bono representation, but lawyers can help ease this imbalance by implementing several principles, such as sharing control, identifying resource barriers and more, says Alicia Aiken at PLI.