Expert Analysis


Bucking Tradition: NewLaw And The Coming Millennials

What law firms should be learning from a number of recent surveys is that they will not be able to rely on the never-ending flood of associate candidates their business model demands as long as they require them to dedicate all day, most nights, every weekend and all holidays to firm business, says Jill Dessalines, founder of Strategic Advice for Successful Lawyers and former assistant GC at McKesson Corp.


A Buyer’s Guide To Carelessly Losing Indemnification Rights

The recent case of Davis v. EMSI Holding reminds us that basic Delaware law can defeat even the most well-crafted indemnification arrangements in a private company stock acquisition, says Craig Godshall of Dechert LLP.


The Risks Of Releasing Privileged Investigative Reports

The recent D.C. federal court decision in Banneker Ventures v. Graham underscores the close analysis that should accompany a decision to publicly disclose even a summary of an internal investigation that was conducted under the attorney-client privilege, say Nicholas Goldin and Yafit Cohn of Simpson Thacher & Bartlett LLP.


Policyholders Must Assess Outside Counsel Guidelines

Insurers will often attempt to restrict the activities and fees of defense attorneys through the use of outside counsel guidelines. Such guidelines are not unilaterally binding and, if improperly applied, can raise the possibility of ethical violations if attorneys adhere to the restrictions in the guidelines against their better professional judgment, says John Scordo of K&L Gates LLP.


Evaluating The 'Timing Defense' When Fighting DTSA Claims

Since the enactment of the Defend Trade Secrets Act last year, savvy defendants have established a viable strategy: moving to dismiss the claim where the plaintiff has only alleged facts that show acts of misappropriation occurring prior to the law's enactment date. At least a half-dozen courts have tackled this “timing defense” and defendants raising it in motions to dismiss have seen mixed results, says Jonathan Shapiro of Epstein Becker Green.


Solving The Privilege-Penalty Predicament: Part 1

In AD Investment, the U.S. Tax Court held that by asserting penalty defenses, two partnerships waived the attorney-client privilege. But the decision is at odds with the fundamental purposes of penalties and privilege, allows the IRS to litigate on “wits borrowed from its adversary,” and encourages it to use penalties as a bargaining chip, say attorneys with Mayer Brown LLP.


After FTC's Update, A Refresher On Complying With COPPA

Last week, the Federal Trade Commission issued an updated six-step plan for businesses to comply with its Children’s Online Privacy Protection Act rule. Behnam Dayanim and Mary-Elizabeth Hadley of Paul Hastings LLP summarize the two key changes in the updated plan and review the six steps companies should take when considering COPPA.


Series

Leegin's 10-Year Checkup: State RPM Rules Vs. Federal Rule

Experienced practitioners swiftly recognized a practical barrier to implementing a national program of resale price maintenance agreements under Leegin’s more permissive approach — the antitrust laws of 50 states. The last decade has largely confirmed those initial reactions, say Michael Lindsay and Matthew Ralph, who lead Dorsey & Whitney LLP's antitrust practice.


State AGs Responding To Trump Policies: 3 Areas To Watch

The federal government’s unfolding enforcement priorities have galvanized state attorneys general into action. We expect this trend to continue, say attorneys with Akin Gump Strauss Hauer & Feld LLP.


Patent Exhaustion Ruling Will Affect Many Industries

The U.S. Supreme Court’s recent expansion of the patent exhaustion doctrine in Impression Products v. Lexmark raises potentially far-reaching implications that may range from lower prices for consumer products and lower profitability for companies, to higher prices for consumer products and higher profitability for companies, say Mark Baghdassarian and Friedrich Laub of Kramer Levin Naftalis & Frankel LLP.


High Court Citizenship-Stripping Ruling Has Unintended Effect

Sensibly enough, in Maslenjak v. United States, the U.S. Supreme Court unanimously decided that a naturalized American cannot be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. But instead of simply stopping at that result, it invented a new standard of “materiality” that is likely to create havoc in future denaturalization cases, says Leon Fresco of Holland & Knight LLP.


3 Labor Law Issues All Employers Should Follow

Later this year, decisions are anticipated from various courts regarding the enforceability of employee class action waivers, the validity of the National Labor Relations Board's joint employer doctrine, and the appropriateness of "micro units" under the NLRB's 2011 Specialty Healthcare decision. Companies operating in the U.S. will want to closely monitor these decisions and understand their potential impact, says Jordan Faykus of Baker McKenzie.


No Personal Jurisdiction Pass For Federal Plaintiffs

The U.S. Supreme Court's recent Bristol-Myers Squibb ruling dealt a blow to plaintiffs attorneys seeking to manufacture personal jurisdiction by joining the claims of resident plaintiffs with those of nonresidents in state court. But some have suggested that the ruling does not apply to federal courts. This is an argument with no legs, say attorneys with Skadden Arps Slate Meagher & From LLP.


What You Need To Do Before Obtaining IP Litigation Financing

Given increased demand for litigation finance in the intellectual property space, it’s more crucial than ever for patent owners to understand the process for securing funding, say Ashley Keller and Katharine Wolanyk of Burford Capital LLC.


Why Actuarial Equivalence Matters For Medicare Advantage

The requirement of actuarial equivalence presents interesting implications for Medicare Advantage organizations, the Centers for Medicare and Medicaid Services and other stakeholders keen on ensuring the fairness and equity of the Medicare Advantage payment process, given the propensity for error in identifying and reporting diagnosis coding, says Ursula Taylor of Butler Rubin Saltarelli & Boyd LLP.


2 Diverging Standards On Disclosing Interim Financial Info

With the Second Circuit's opinion in Stadnick v. Vivint Solar, we now have a situation where two federal appellate courts have promulgated differing standards to determine when companies making initial public offerings must disclose interim financial information. The question is whether we have a “split between the circuits” of the kind that might attract the attention of the U.S. Supreme Court, says Kevin LaCroix of RT ProExec.


Monthly Column

Gray Matters: We Feel, We Decide

Despite legal education training and the focus on logic and reason by the courts, lawyers address emotional issues on a daily basis — albeit more indirectly. But a shift to consciously and strategically addressing emotions gives us a powerful tool to help our clients reach faster, better decisions, say dispute resolution experts Robert Creo and Selina Shultz.


Key Privacy Developments In Trump's First 150 Days

Recent significant shifts in privacy policy include an executive order withdrawing Privacy Act protections for non-U.S. individuals, and the rollback of the Federal Communications Commission's broadband privacy rules, says Jaipat S. Jain of Lazare Potter & Giacovas LLP.


Indian Tribes And The CFPB Are Unnecessary Adversaries

While the Consumer Financial Protection Bureau has disregarded sovereignty since its creation, the problem has recently reached an all-time high. The CFPB v. Golden Valley case is merely the latest in a series of actions that demonstrate the bureau's mistreatment of tribal governments, says Saba Bazzazieh of Rosette LLP.


Summary Affirmances Could Undo The Fed. Circ.

For the past two years, the Federal Circuit has relied on summary affirmances in nearly 60 percent of its cases. Thus, if the U.S. Supreme Court were to find, as recent cases argue, that the law requires the Federal Circuit to issue a written opinion in all cases, it could drastically slow down the appeals process, says Matthew Fagan of Kacvinsky Daisak Bluni PLLC.




Special Series


FERC At 40

In 1977, the Federal Power Commission was replaced by the Federal Energy Regulatory Commission, and the U.S. energy system entered a new era. This series takes stock of FERC's past, present and future.

Revisiting Affiliated Ute

Forty-five years after the U.S. Supreme Court's ruling in Affiliated Ute Citizens of Utah v. United States, defense and plaintiffs attorneys explore the decision's progeny in the Supreme Court and various circuits.

10 Years Of KSR

This series explores how the U.S. Supreme Court's 2007 decision in KSR v. Teleflex has affected obviousness analysis and the patent landscape.



Op-Eds


Justice Kennedy's Moderating Influence On The High Court

The guessing game around Justice Anthony Kennedy’s possible retirement is reaching a crescendo. Yet the speculation does more than fuel bookmakers’ odds. It draws attention to his pivotal role as the court’s swing vote, says Nan Aron, president of Alliance for Justice.

Flawed Commentary Can't Stop Trans Rights Momentum

In a recent Law360 guest article, Jordan Lorence of Alliance for Defending Freedom argues that the Seventh Circuit misapplied Title IX in its recent decision in Whitaker v. Kenosha Unified School District. But to reach his conclusion, he mischaracterizes the facts and reasoning of the case as well as the law on which it relies, say Raymond Wendell and Ginger Grimes of Goldstein Borgen Dardarian & Ho.



Q&A


Plaintiffs Bar Perspective: Susman Godfrey's Matthew Berry

Cases are typically decided based on a relatively small number of key issues. It is critical not only to identify those key issues at the outset of the case, but to also plot a strategy for getting them resolved in your favor, says Matthew Berry of Susman Godfrey LLP.