Expert Analysis


Perspectives

Addressing Prison Risk After CARES Act Home Confinement

Home confinement eligibility, which was expanded last year due to high rates of COVID-19 in penal institutions, may soon be tightened, so house-detained individuals at risk of returning to prison should understand their various avenues for relief, as well as the procedural obstacles they may face in mounting legal challenges, say Charles Burnham and Jonathan Knowles at Burnham & Gorokhov.


How Growing Cyber Scrutiny Affects Corporate Compliance

In the face of overlapping cybersecurity initiatives at the U.S. Departments of Justice and Health and Human Services, health care companies and government contractors should prepare for microscopic scrutiny by ensuring specific components are included in compliance programs and being mindful of reporting obligations under existing corporate integrity agreements, say attorneys at Verrill Dana.


Why New Phase I Site Standard Matters For Real Estate

As an update to the preeminent standard for Phase I environmental site assessments — an essential part of transactional due diligence — is rolled out, parties to real estate transactions should adopt the new standard if they wish to claim liability protections under the Superfund law, say Lorene Boudreau at Ballard Spahr and Mitchell Wiest and Sara Redding at Roux.


How To Fix Discrimination Issues In SE Power Market Plan

While the Southeast Energy Exchange Market recently received regulatory approval to proceed, concerns remain about discriminatory transmission access — but measures can be taken to promote balanced representation and independent oversight, say Carolyn Berry and Galen Erickson at Bates White.


Compliance Lessons For PE Sponsors Amid SEC Scrutiny

Recent comments from U.S. Securities and Exchange Commission Chairman Gary Gensler offer valuable insight to private equity sponsors seeking to improve their compliance programs and practices as the commission increases its focus on private funds, and institutional investors evaluating or monitoring their private equity investments, say Andrew Lom and Garry Padrta at Norton Rose.


Navigating CARES Act Social Security Tax Deferral Payments

Attorneys at Morgan Lewis examine Internal Revenue Service guidance on payment of employer-share social security tax deferrals due Jan. 3 under the Coronavirus Aid Relief and Economic Security Act, and offer tips for avoiding costly underpayment and late deposit penalties.


Science-Based Definition Of US Waters Won't Pass In Court

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers recently proposed a science-backed definition of "waters of the United States" for the Clean Water Act, but the U.S. Supreme Court is unlikely to be persuaded that science trumps a constitutional or statutory limit on the EPA's and the Corps' authority, says Jeffrey Porter at Mintz Levin.


Investors May Reconsider Arbitration Seats After ECJ Ruling

The European Court of Justice's recent Moldova v. Komstroy decision undermines the attractiveness of European Union-seated investment arbitration as it highlights to investors that such proceedings can be subject to interference from EU courts, says Tomas Vail of Vail Dispute Resolution.


What FTC Report Reveals About ISP Data Collection

The Federal Trade Commission’s recent report on the privacy practices of six internet service providers will likely affirm suspicions about consumer data collection and use, but it also touches on several points regarding user engagement, deceptive claims and antitrust that are worth drawing out, says Andrew Stivers at NERA Economic Consulting.


Avoiding Audit Disaster After Receiving A Disaster Grant  

Erin Greten and Thomas Barnard at Baker Donelson offer tips to help entities that received COVID-19-related federal assistance navigate complex audit processes, stay in compliance with spending requirements, and avoid civil liability or criminal prosecution.


ITC Is Split On Domestic Industry Analysis

The U.S. International Trade Commission's recent opinion in In Vitro Fertilization demonstrates that the current commissioners disagree on the economic prong of domestic industry requirement in Section 337 investigations, resulting in discord that parties should account for, say Mike Doman and Juan Garcia at Adduci Mastriani.


What Justices' Groundwater Ruling Means For State Disputes

The U.S. Supreme Court's recent decision in Mississippi v. Tennessee aids future negotiations over interstate groundwater resources, both by explicitly informing states what the default rule is, and by implicitly giving states authority to trade off water rights across a broader spectrum of water resources, says Robin Craig at USC Gould School of Law.


Ohio Opioid Verdict Brings Focus To Role Of Pharmacists

The recent federal Ohio jury verdict in National Prescription Opiate Litigation found pharmacies liable for contributing to the public nuisance of the opioid epidemic, advancing the question of when pharmacists owe a duty to warn or refuse to fill a prescription, says Roseann Termini at Widener University's Delaware Law School.


SEC's Robo-Adviser Focus May Foreshadow Crackdown

The U.S. Securities and Exchange Commission's recent robo-adviser risk alert suggests the agency may clamp down on deficiencies in the wake of this spring's meme stock frenzy and gamification concerns, including through rulemaking that addresses investment advisers' conflicts of interest, say attorneys at Stradley Ronon.


What The New OECD Double-Tax Procedure Statistics Tell Us

Monique van Herksen and Clive Jie-A-Joen at Simmons & Simmons consider the Organization for Economic Cooperation and Development’s recent report on double taxation cases resolved in 2020 under the mutual agreement procedure process, and examine whether the process has improved dispute resolution mechanisms since its implementation five years ago.


The Implications Of COP26 For Legal Practitioners

Developments at the recent United Nations Climate Change Conference will create both opportunities and risks for lawyers — with many new laws, regulations and industry best practices to track, and a growing pipeline of new energy and infrastructure projects to facilitate, say Caroline May and Charles Winch at Norton Rose.


Med Device Case Highlights Physician IP Deal Best Practices

The U.S. Department of Justice's recent settlement with Arthrex over False Claims Act allegations demonstrates how physician intellectual property arrangements present compliance risks, which medical device companies can mitigate through best practices covering training, governance and other protocols, say attorneys at Paul Hastings.


5 Considerations For Obtaining Design Patents In US, Abroad

With recent World Intellectual Property Organization data indicating a worldwide increase in design patent filings, companies should bear in mind several tips for obtaining and benefiting from design patent protection in the U.S. and abroad, including pointers on key differences among jurisdictions, say Elizabeth Ferrill and Jeffrey Smyth at Finnegan.


2 Insurance Rulings Showcase Trend Favoring Appraisal

Two recent decisions from a Florida state court and the Tenth Circuit are consistent with the purpose of, and overwhelming judicial preference toward, appraisal as a means of property claim resolution, ensuring that policyholders have further support in employing this tool against a reluctant insurer, say Matthew Weaver and Jessica Gopiao at Reed Smith.


SEC's Proxy Voting Proposal Could Shake Up Private Funds

The U.S. Securities and Exchange Commission's recently proposed proxy voting rule would require many private fund managers to disclose their executive compensation votes for the first time, potentially affecting how managers pursue investment strategies, say attorneys at Schulte Roth.



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Special Series


Embracing ESG

In this ongoing Expert Analysis series, in-house counsel share how they are adapting to the growing importance of environmental, social and corporate governance factors.




Confronting Origination Credit

This Expert Analysis series looks at how law firms' long-standing practice of awarding origination credit to attorneys who bring in new business can be a barrier to diversity, and offers possible paths toward more equitable compensation systems.




Opinion


Don't 'Fix' Misrepresentation Class Claim Pleading Standards

A recent Law360 guest article's proposal for a new federal pleading standard for class actions involving alleged misrepresentations is a solution in search of a problem, and would create an unnecessary barrier to average people's ability to seek redress in court, says Nicholas Coulson at Liddle Sheets.

Why We're Losing The Battle Against Illicit Finance

The recent Pandora Papers investigation highlights how the U.S. Department of the Treasury's anti-money laundering and combating the financing of terrorism framework is failing to address known vulnerabilities in the financial sector that should be replaced with a proactive approach to close loopholes and streamline enforcement, say Kristen Patel at Syracuse University and attorney William Lichtenfels.



Access to Justice Perspectives


Addressing Prison Risk After CARES Act Home Confinement

Home confinement eligibility, which was expanded last year due to high rates of COVID-19 in penal institutions, may soon be tightened, so house-detained individuals at risk of returning to prison should understand their various avenues for relief, as well as the procedural obstacles they may face in mounting legal challenges, say Charles Burnham and Jonathan Knowles at Burnham & Gorokhov.





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