Expert Analysis

The U.S. Supreme Court’s upcoming opinion in Liu v. U.S. Securities and Exchange Commission may call into question when Foreign Corrupt Practices Act settlements should be subject to disgorgement, say Matthew Rutter and Neal Hochberg at Charles River Associates.

Dealmakers can take advantage of COVID-19’s dampening effect on M&A activity to work through timing, pandemic considerations and sale process coordination for portfolio company sales so their deals will be ready when the market eventually picks back up, say Michael Gilligan and Caitlin Cornell at Schulte Roth.

Even though the Office of Foreign Assets Control has acknowledged COVID-19 challenges, the agency still expects companies to take a risk-based approach to sanctions compliance by routinely updating programs that reflect their individual business models, customer bases and geographic operations, say Mario Mancuso and Abigail Cotterill at Kirkland & Ellis.

A New York City law signed into law Tuesday cancels personal guarantees executed in conjunction with commercial leases when tenants default on rent due to COVID-19, setting up a potential clash between the city's police powers and the U.S. Constitution's contracts clause, says Massimo D'Angelo at Adam Leitman.

As hospitals halt elective procedures and shift to servicing mostly COVID-19 patients, many may continue to depend on government funding to meet the financial challenges caused by the COVID-19 pandemic, despite payments from insurers and funding from the CARES Act, say analysts at Analysis Group.

Attorneys at Proskauer break down the kinds of COVID-19 whistleblower retaliation claims employers should anticipate, and explain key steps to minimize risks under the Occupational Safety and Health Act, National Labor Relations Act, Families First Coronavirus Response Act, and state laws.

As businesses evaluate products claiming to make workplaces safer during the pandemic, or look at marketing such products themselves, they should be aware of the highly regulated world of disease prevention claims if they wish to avoid enforcement and private litigation, say attorneys at Crowell & Moring.

During the current pandemic, counsel for energy companies must be prepared for the market condition known as contango — where short-term and long-term energy prices operate differently — and with pressure from banks providing reserve-based lending facilities, says Cameron Kinvig at Lexis Practice Advisor.

A dispute between staffing firm Aerotek and four former employees over enforceability of electronic arbitration agreements, currently being petitioned for review by the Texas Supreme Court, could signal a big problem not only for employers but all companies that transact business outside of their own locale, says Abby Brown at Moye White.

Pandemic circumstances put health care facilities in a bind — they must continue to treat their patients, protect patient privacy, and ensure they have sufficient staff who are ready and willing to work, while also protecting themselves from the heightened threat of whistleblower and retaliation lawsuits, say attorneys at Pepper Hamilton.

Three cases show that the Patent Trial and Appeal Board is perhaps now more willing to find secondary consideration arguments persuasive in inter partes reviews and appeals from examination and reexamination, say Michael Kiklis and Matthew Zapadka at Bass Berry.

Lawyers investigating allegations of a company's internal misconduct typically hand over their search term lists to outside auditors and government enforcers, but this puts clients' privilege arguments at risk, say Markus Funk and Chelsea Curfman at Perkins Coie.

Luckin Coffee and TAL Education Group — two high-profile Chinese companies listed in the U.S. — recently announced suspected cases of colossal revenue fraud, and these case studies may help companies recognize the germinating seeds of accounting fraud, say Fabian Roday at Fangda Partners and William Fotherby at Meredith Connell.

As COVID-19-related fraud gains pace, U.K.-based practitioners should help combat money laundering by using alternative methods to verify that new clients are who they say they are, says Christopher Convey, a barrister at 33 Chancery Lane and chair of the Bar Council's Money Laundering Working Group.

Following a New York federal court’s recent decision in Flatiron Health v. Carson, employers should limit restrictive covenants to client relationships developed at the company's expense, and reject the expectation that overreaching agreements may be partially enforced, says Ihsan Dogramaci at Pavia & Harcourt.

Recent class actions challenging how lenders prioritized Paycheck Protection Program applications or alleging failure to pay agent fees to those facilitating loan applications may be based on the flimsiest of legal theories, however risks still exist, as we saw earlier this month in a Michigan federal court decision, say Richard Gottlieb and Brett Natarelli at Manatt.

Companies can prepare for Federal Trade Commission privacy and consumer protection investigations by taking practical and effective steps to meet their obligations while also minimizing burden and streamlining the process in light of the challenges posed by the pandemic, say attorneys at Perkins Coie.

From setting realistic recovery expectations to anticipating regulatory zeal to strategizing internal operations, attorneys at King & Spalding offer a road map for U.K. financial services stakeholders attempting to return to "normal" when the pandemic subsides.

Although governments continue to construct direct barriers to international health collaboration by restricting foreign direct investment, the COVID-19 pandemic has highlighted the necessity of borderless health care goods and services, say attorneys at Mayer Brown.