Expert Analysis


How Will High Court Rule On IPR? Clues In A Thomas Dissent

The U.S. Supreme Court is highly likely to find inter partes reviews constitutional in Oil States. The strongest indication lies in Justice Clarence Thomas’ 2015 dissent in B&B Hardware — a case that has received no substantive discussion in the hundreds of pages of briefing filed thus far, says Kayvan Noroozi, principal at Noroozi PC and CEO of Koios Pharmaceuticals LLC.


Series

My Supreme Court Debut: A Birthday I’ll Never Forget

I argued my first case before the U.S. Supreme Court in 2013. It was my birthday. And I must say, the experience set the bar pretty high for future birthdays, says Catherine Carroll of WilmerHale.


The Evolution Of Regulators’ Views On Bitcoin ETFs

Bitcoin has taken two significant steps toward legitimacy since the Winklevoss and SolidX exchange-traded fund applications were rejected by the U.S. Securities and Exchange Commission earlier this year. As bitcoin trading proliferates, it is likely that the SEC will change its stance and approve a bitcoin ETF, say attorneys with Morvillo LLP.


Despite Recent Victories, Risks Remain For Plan Fiduciaries

Over the last few months, there have been a significant number of court decisions ruling against plaintiffs in single-stock fund cases under the Employee Retirement Income Security Act. However, these plan fiduciary “victories” are somewhat Pyrrhic and underscore that an alleged lack of fiduciary process can create ongoing risks and costs, say Julie Stapel and Elizabeth Goldberg of Morgan Lewis & Bockius LLP.


5 Questions GCs Should Ask On Securing Internet Of Things

Connected devices are creating new markets and new efficiencies for global businesses. But the internet of things also raises a wide range of cybersecurity and data privacy considerations for general counsels and their legal teams, say attorneys with Mayer Brown LLP.


Enviro Rights: What's The Public Trust Role In Pa.?

The Pennsylvania Supreme Court's recent decision in Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania has changed the discussion about the state’s so-called environmental rights amendment. Philip Hinerman and Adam Cutler of Fox Rothschild LLP examine issues raised in the case, such as what it means to be a public trustee and the positions various groups are taking.


The Rise Of Employee Religious Discrimination Claims

Many employers are seeing an increase in requests for religious accommodations. Several recent court decisions and statistics from the U.S. Equal Employment Opportunity Commission provide insight into the rise in claims related to these requests, and the importance of employers understanding their obligations to accommodate, say Barbara Hoey and Alyssa Smilowitz of Kelley Drye & Warren LLP.


The Legal Theory Behind The Clean Power Plan's Repeal

News media reports about the U.S. Environmental Protection Agency's move to repeal the Obama-era Clean Power Plan have focused on President Donald Trump’s attacks on his predecessor's environmental legacy. However, repeal proponents can make a strong argument that the CPP was always on shaky legal ground, say Jane Montgomery and Amy Antoniolli of Schiff Hardin LLP.


Sham Affidavits In Medical Product Liability: Part 1

Almost 20 years ago, the United States Supreme Court endorsed the sham affidavit doctrine, precluding creation of “genuine” factual issues by an essential witness contradicting his or her own previous sworn testimony. Prescription medical product liability practitioners should be aware of a number of important cases in which sham affidavits have been key, says James Beck of Reed Smith LLP.


Think Before Making Bitcoin Part Of Incident Response Plan

Amid increasing ransomware attacks, businesses and their outside law firms are considering whether it would be prudent to establish and stock a bitcoin wallet as part of their incident response plan. This approach, however, may expose companies to more liability than the benefits can justify, say Tracy Lechner and Esteban Morin of Brownstein Hyatt Farber Schreck LLP.


2 Recent FCC Actions Target Business Communications

The Federal Communications Commission is currently assessing whether to adopt new federal 911 rules for enterprise communication systems. It is also considering auctioning off desirable toll-free 800 numbers, which could make it more expensive for companies to obtain such numbers, says Michael Pryor of Brownstein Hyatt Farber Schreck LLP.


Aqua Products: Watershed Decision Or Barely A Ripple?

A deeply fractured en banc Federal Circuit in Aqua Products v. Matal has shifted the burden of persuasion onto petitioners to establish the unpatentability of amended claims proffered by patent owners during inter partes review proceedings. But the U.S. Patent and Trademark Office may attempt to promulgate regulations reimposing the burden of persuasion on patent owners, say attorneys with Paul Hastings LLP.


A Big Drone Victory For FAA

A Massachusetts federal judge's recent decision in Singer v. Newton showed substantial deference to Federal Aviation Administration regulations, highlighting the tension between local, state and federal governments over drone regulation. It may impact the consideration of bills pending before Congress, say attorneys with Baker McKenzie.


Evolution Of A Crisis: Opioid Claims Pick Up Speed

On Sunday, the results of a six-month joint investigation by "60 Minutes" and The Washington Post concluded that "the drug industry, with the help of Congress, turned the opioid epidemic into a full blown crisis." In the coming months, insurers and pharmacy benefit managers are expected to undertake new and innovative efforts to control and disincentivize the use and prescription of opioids, says Adam Fleischer of BatesCarey LLP.


Series

New Post-Recession Metrics For BigLaw Partner Success

After nearly a decade of recession-accelerated change in the legal industry, “merit-based” compensation has largely come to mean measuring attorney success using some combination of origination and working attorney hours metrics. However, there are signs that the real impact of the recession is still around the corner, and that building a book isn’t enough, says Peter Zeughauser of Zeughauser Group.


Acting As Fiduciary Is Always In An Atty's Best Interest

Attorneys understand the importance of fiduciary duty when providing legal counsel to their clients. But the U.S. Department of Labor's new rule on conflicts of interest makes it important to act as a fiduciary in other situations as well, such as when serving as a trustee or as the executor of an estate, says Stuart Riemer of Treasury Partners.


Questioning Appellate Time Limits At The High Court

Hamer v. Neighborhood Housing Services of Chicago questions whether the time limit on a district court’s authority to extend the deadline for filing a notice of appeal is jurisdictional. Based on the questions at argument before the U.S. Supreme Court last week, the court appears likely to adhere to the principle articulated in some of its recent cases, says Eric Miller of Perkins Coie LLP.


What To Know About New Calif. Job-Protected Parental Leave

Last week California Gov. Jerry Brown signed Senate Bill 63 into law to provide up to 12 weeks of job-protected parental leave for employers with 20 or more employees. Signing of the bill follows previous unsuccessful efforts to extend job-protected leave to smaller employers not covered by the federal Family and Medical Leave Act or the California Family Rights Act, says Benjamin Ebbink of Fisher Phillips.


Why The Supreme Court Could Rule ALJs Unconstitutional

Recent federal appeals court decisions have questioned the constitutionality of the use of administrative law judges by the Federal Energy Regulatory Commission and the U.S. Securities and Exchange Commission. The U.S. Supreme Court is likely to address the SEC's use of ALJs, but FERC-specific issues may not be resolved without further litigation, say David Perlman and Britt Steckman of Bracewell LLP.


Trump Admin Adds New Hurdle To US Green Card Process

U.S. Citizenship and Immigration Services recently announced a sweeping change to the employment-based lawful permanent residence process with the introduction of mandatory interviews for applicants. The agency has touted expected improvements to national security and the overall process, but it has also admitted that the change presents a logistical challenge, says Brian Coughlin of Davis Malm & D'Agostine PC.




Special Series


My Supreme Court Debut

As the end of the year draws near, all eyes are turning to the U.S. Supreme Court and the decisions it will issue during its October 2017 term. In this series, attorneys that have argued before the high court reflect on their very first time standing before the justices.




Notes From A Law Firm Chief Privacy Officer

As more law firms become the targets of major cyberattacks, more firms may consider appointing a chief privacy officer. In this series, CPOs at four firms discuss various aspects of this new role.

15 Years Of Sarbanes-Oxley

A decade and a half after the Sarbanes-Oxley Act was enacted in response to accounting scandals at Enron, WorldCom and elsewhere, attorneys, accountants and compliance experts measure the law's impact in this special series.



Op-Eds


Time To Lift Student Loan Counseling Restrictions

While it lends more than $100 million each year to our nation’s college students — including law students — the U.S. Department of Education surprisingly limits loan counseling to one-time entrance counseling for first-time student borrowers. Is this rational? asks Christopher Chapman, president of AccessLex Institute, a nonprofit focused on access to legal education.

September Madness: Problems With NCAA Corruption Case

I'm not saying the charges filed last month against 10 individuals in a college basketball corruption scheme are legally flawed — not all of them, anyway. But I do question whether bringing multiple felony charges on these facts is sound exercise of prosecutorial discretion, says Randall Eliason, a former federal prosecutor.



Q&A


BigLaw Alums Q&A: Fisch Sigler's John Battaglia

By having the freedom to select our work, we can ensure that high-quality opportunities remain a staple of the professional diet. Working on cases you believe in, for clients you like, and on challenging issues reminds you that you are part of a profession, and not a cog in a billing system, says John Battaglia of Fisch Sigler LLP.