Expert Analysis


Alternative Fees: My Experience At Bartlit Beck

Bartlit Beck was a wonderful place to work for 18 years, and the lawyers there are not only excellent attorneys but also great people. That said, and stating my biases upfront, it is possible for me to look analytically at the Bartlit Beck fee model and make some observations on the pros and cons of one version of alternative fees, says J.B. Heaton, founder of investment analytics company Conjecture LLC.


Will New Jersey’s Bet On Sports Gambling Pay Off?

Earlier this month, the U.S. Supreme Court heard oral argument in Christie v. NCAA, considering New Jersey's bid to permit sports gambling at the state's casinos and race tracks. There appears to be a very real possibility that the Supreme Court will find some of the state's Professional and Amateur Sports Protection Act unconstitutional, say David Apfel and Brian Burgess of Goodwin Procter LLP.


Employers' Insurance Issues For Sexual Harassment Claims

With daily revelations of sexual assault committed by public figures, employers are renewing their focus on employment practices liability insurance. However, the extreme social sensibility associated with sexual assault claims may complicate recovery, and employers should consider three key issues when seeking recovery under EPLI forms, says Micah Skidmore of Haynes & Boone LLP.


Considering Indication-Specific Pricing As A Solution

Practitioners should pay close attention to see whether indication-specific pricing is adopted for generic and biosimilar products. Though ISP is often proposed as a solution to rising health care costs, it is unclear whether it is compatible with the current legal frameworks in play, say Michael Cottler and Natasha Daughtrey of Goodwin Procter LLP.


Why Venezuela’s Bondholders Must Litigate, Not Arbitrate

For bondholders of certain nationalities with idiosyncratic circumstances, arbitration against Venezuela may provide advantages over court litigation. But for the typical bondholder looking to recover unpaid principal and interest following Venezuela’s default on its sovereign bonds, court litigation is likely superior, say Richard Cooper and Boaz Morag of Cleary Gottlieb Steen & Hamilton LLP.


SEC's Reversal On ALJs Could Affect Its Forum Choices

In a sudden about-face, the U.S. Securities and Exchange Commission has ratified its administrative law judge appointments, seemingly resolving the constitutional issues surrounding its ALJs. This could mean that the SEC will resume filing litigated actions as administrative proceedings again, say attorneys with Squire Patton Boggs LLP.


The Landscape Of Financial Exploitation Rules: Part 1

As the baby-boomer generation exits the workforce and transitions into retirement, senior investors will begin accessing their retirement savings. To prevent abuse, financial institutions should carefully review the emerging federal and state framework regulating the financial exploitation of senior investors and adjust accordingly, say attorneys with Eversheds Sutherland.


New Wine In Old Bottles: RCRA's Anti-Duplication Clause

Last month, the Ninth Circuit became the latest federal appellate court to consider the implications of the anti-duplication provision of the Resource Conservation and Recovery Act. This is an important decision because it further clarifies the limiting scope of this provision, which is unique to RCRA, say Anthony Cavender and Amy Pierce of Pillsbury Winthrop Shaw Pittman LLP.


DOL Fiduciary Rule — Still Very Much Alive

While certain requirements of the U.S. Department of Labor's Fiduciary Rule were recently delayed, the rule's expanded definition of a fiduciary and the standards to which such fiduciaries are to be held are currently in effect, says Robert Gower of Trucker Huss APC.


Reviewing 2017's CEQA Legislative And Regulatory Activity

As another year draws near its close, a number of notable California Environmental Quality Act developments in both the legislative and regulatory arenas bear mention, including one proposed regulation that is already outdated due to its conflict with a recent Fifth District decision, says Arthur Coon of Miller Starr Regalia.


Looking At Property Insurance From A Lender’s Perspective

Most borrowers understand the importance of getting insurance against property loss, but some lenders ignore the vital role property insurance plays in protecting the lender's interest in the event of a loss. They must take steps to ensure that both the borrower and the lender will be made whole in the event of a catastrophic loss, says Melissa Martorella of Geraci Law Firm.


Series

40 Years Of FCPA: An Update From The DOJ

U.S. Department of Justice prosecutors and law enforcement partners have secured more foreign bribery-related trial convictions and guilty pleas this year than in any other year in the history of the Foreign Corrupt Practices Act, in fact by almost twice as much. These are all significant cases with significant impacts, says Daniel Kahn, chief of the DOJ's FCPA Unit.


Why Information Governance Is More Important Than Ever

It used to be that hiring a good law firm was the single most important thing a company could do when facing litigation. You could now make the case that an organization’s most powerful asset in prosecuting or defending a claim is its information, says Linda Sharp, associate general counsel of ZL Technologies and chair of the ACC Information Governance Committee.


A Review Of Massachusetts' Marijuana Industry In 2017

It's been an exciting year for the marijuana industry in Massachusetts, with cities and towns now determining whether to embrace the new economic development opportunities presented by recreational marijuana. However, investment in the industry remains risky because the cultivation, use, sale and possession of marijuana remains a crime under federal law, say William Moorman and John Ottaviani of Partridge Snow & Hahn LLP.


Diversity Poised To Take Center Stage In 2018 Proxy Season

Diversity on corporate boards has been a matter of interest among U.S. investors for years, but 2017 marked a turning point. We expect gender diversity in particular to take center stage in the 2018 annual meeting season, say attorneys with Vinson & Elkins LLP.


New Obstacles For VPPA Plaintiffs At 9th Circ.

Although the lure of hefty statutory damages under the Video Privacy Protection Act means that VPPA litigation will almost certainly continue, the Ninth Circuit's recent decision in Eichenberger v. ESPN is another setback for plaintiffs attempting to map this pre-internet law onto modern platforms that serve video content, say attorneys with Gibson Dunn & Crutcher LLP.


Litigation Trend Links Climate Change And Human Rights

One key takeaway from the Bonn Climate Talks — which recently brought together negotiators from close to 200 countries to discuss implementation of the Paris agreement — is that energy companies must seriously consider potential lawsuits linking their business operations with human rights violations and climate change, say Viren Mascarenhas and Kayla Winarsky Green of King & Spalding LLP.


Ordinary Observer And Informed User Walk Into A Bar

Elizabeth Ferrill and Clare Cornell, partners of Finnegan Henderson Farabow Garrett & Dunner LLP, stage a transatlantic conversation about design infringement in a small pub somewhere in the middle of the Atlantic Ocean.


Biometrics In The Workplace: Best Practices For Compliance

Biometric technology may provide higher security and greater efficiencies for employers, but with new technology comes new risks and a patchwork of new legal frameworks to be followed, say attorneys with Akerman LLP.


Cosmetic Companies Must Plan For New Regulation  

U.S. senators on both sides of the aisle have proposed cosmetic reform bills, making it likely that Congress will soon pass legislation regulating personal care products. This, in turn, is likely to result in greater litigation against companies making those products, say attorneys at Mintz Levin Cohn Ferris Glovsky and Popeo PC.




Special Series


Judging A Book

Are the latest books on the judicial system worth reading? Federal judges share their thoughts in this series of book reviews.




Financial Crisis, 10 Years On

One decade since the first signs of trouble, members of the Financial Crisis Inquiry Commission, Obama administration officials, legal industry experts, and others explore the profound impact of the Great Recession.

Making Pro Bono Work

In this series, attorneys explore the challenges and rewards of pro bono volunteering in the legal profession.



Op-Eds


Building A Better Patent System

Legislation to change the patent system is unlikely to move in this polarized Congress. But the bulk of Patent Trial and Appeal Board reforms under discussion — including most of those proposed in the STRONGER Patents Act — could be implemented by the U.S. Patent and Trademark Office under its existing regulatory authority, says Robert Stoll, a partner at Drinker Biddle & Reath LLP and former commissioner for patents.

Litigation Is Not The Solution To The Opioid Epidemic

It is irresponsible to fit the pharmaceutical industry into the mold of Big Tobacco. The opioid addiction crisis is a public health problem. Litigation is not a proper solution, say members of Kelley Drye and Warren LLP.



Q&A


A Chat With Orrick COO Laura Saklad

In this new monthly series, legal recruiting experts Amanda Brady and Amy Mallow of Major Lindsey & Africa interview law firm management from Am Law 200 firms about how they are navigating an increasingly competitive business environment. The first conversation is with Laura Saklad, chief operations officer for Orrick Herrington & Sutcliffe LLP.