Expert Analysis


What To Expect From A Simplified EU Merger Control System

The European Commission’s draft amendments to the EU merger control system, expected to be formally adopted shortly, reduce its administrative burden and expand the scope of the simplified procedure to additional categories of transactions, providing a welcome development for companies and their advisers, say Axel Gutermuth and Lukas Šimas at Arnold & Porter.


Law Firm Inclusion Efforts Often Overlook Business Staff

Law firms committed to a culture of universal inclusion can take steps to foster a sense of belonging in their business services teams, says Jennifer Johnson at Calibrate Consulting.


San Diego Arena Provides Case Study Of Surplus Land Act

A San Diego municipal sports arena property, which recently obtained approval from the California Department of Housing and Community Development, provides a valuable lesson regarding compliance with Surplus Land Act requirements, and the delays that can otherwise ensue, says Elinor Eizdi at Nossaman.


Excerpt from Practical Guidance

Alternatives For Employers Considering Workforce Reduction

Employers' reduction in force decisions can be costly, increase exposure to employment lawsuits and lower morale of remaining employees, but certain other approaches can help reduce labor costs while minimizing the usual consequences, say Andrew Sommer and Megan Shaked at Conn Maciel.


How Contractors Can Avoid Cybersecurity FCA Violations

Recent U.S. Department of Justice settlements and remarks underscore heightened focus on cybersecurity liability under the False Claims Act, so government contractors should consider compliance measures such as conducting periodic risk assessments, being responsive to employee concerns, and more, say attorneys at WilmerHale.


11th Circ. Ruling Emphasizes Article III Struggles After Spokeo

The Eleventh Circuit's element-comparison test in Hunstein v. Preferred Collection to determine when intangible harm meets Article III standing sparked a sharp divide in the court, showing the struggle with this analysis will likely continue in the wake of the U.S. Supreme Court's Spokeo v. Robins decision, say attorneys at Hinshaw & Culbertson.


EPA Guidance Signals Greater Enviro Justice Focus In Permits

A list of frequently asked questions recently released by the U.S. Environmental Protection Agency emphasizes environmental justice and civil rights considerations in permitting for a wide range of commercial activities across many industries, and is likely to reverberate loudly in environmental permitting for years to come, say attorneys at King & Spalding.


Retail Ruling Clarifies Attorney Fees For Large Ch. 11 Cases

A Virginia federal court’s recent order in the Retail Group bankruptcy matters shines light on the relevant factors for approving fee applications in complex Chapter 11 cases, confirming the importance of making an appropriate factual record to support professional fee applications, say Jason Harbour and Justin Paget at Hunton.


AI Artists Highlight Need For Copyright Updates

As virtual musicians are generated in the age of artificial intelligence, the U.S. Copyright Office will be forced to clarify the limits of copyright protections, which are currently reserved only for human beings, say Sarkis Yeretsian and Jonathan Goins at Lewis Brisbois.


How Attys Can Get Reliable Data From Pretrial Focus Groups

As jury research becomes more commonplace, many trial attorneys are attempting to run their own focus groups, but they must understand the principles of scientific method and bias to collect reliable data — or they risk relying on misleading, invalid or potentially dangerous information, says Jessica Brylo at Trial Dynamics.


RICO Claims Against Cannabis Cos. Are Evolving

A recently filed Racketeer Influenced and Corrupt Organizations Act suit, alleging that cannabis operators overstated the amount of THC in their products, differs significantly from racketeering claims filed against companies in the industry a few years ago, signaling a potential shift toward consumer fraud and product liability actions, say Ethan Feldman and Seth Goldberg at Duane Morris.


SEC Rules Amplify Proxy Contest Threats For Cos.

New U.S. Securities and Exchange Commission rules requiring the use of universal proxy cards in director election contests at publicly traded companies, which became effective this month, may open floodgates for special interest groups and shareholder activism efforts, say attorneys at Sidley.


Excerpt from Practical Guidance

Considerations For Interstate Travel For Abortion Post-Dobbs

Due to the patchwork of state laws regarding the legality of abortion following the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision, it's important to consider the state of current and potential laws about traveling for abortion services, say Virginia Bell Flynn and Tina Safi Felahi at Troutman Pepper.


Reexamining Negative Limitations After Novartis Patent Ruling

The Federal Circuit's decision and denial of rehearing in Novartis v. Accord has created exacting standards that must be met in order for negative limitations in patent claims to satisfy the written description requirement, but whether the dissent is correct that the majority opinion heightened the standard is an arguable point, say Jonathan Fitzgerald and Jaime Choi at Snell & Wilmer.


Precautions For New Wave Of Digital Privacy Class Actions

Consumer class actions attempting to expand existing laws to cover new online activities have recently targeted companies that use source code-based tools on their websites to interact with visitors — emphasizing the importance of transparency about information collection, say attorneys at Crowell & Moring.


The Murky Status Of TCPA Standing In The 11th Circ.

The Eleventh Circuit's lack of clarity regarding Telephone Consumer Protection Act standing, which it acknowledged in its recent Drazen v. Pinto decision, may be rooted in a number of cases involving different subsections of the TCPA, say Aaron Weiss and Charles Throckmorton at Carlton Fields.


Antitrust Suit Could Shake Up Schools' Financial Aid Policies

The eventual outcome of Henry v. Brown University, a civil antitrust suit brought against a group of elite private universities, could have major ramifications for how some of the most prestigious institutions of higher education in the U.S. allocate and award financial aid, say attorneys at Perkins Coie.


What's At Stake In Court Split Over Foreign Bribery Charges

Texas and Florida federal courts recently reached opposite conclusions on the extraterritorial application of U.S. money laundering laws in foreign bribery prosecutions, and if the Fifth Circuit upholds the Texas court’s reasoning, the U.S. Department of Justice could lose a significant enforcement tool, say James Koukios and Heather Han at MoFo.


An Associate's Guide To Rebounding After A Layoff

Law firm associates laid off due to economic conditions can recuperate and move forward by practicing self-care, identifying key skills to leverage during the job search, engaging in self-reflection and more, say Kate Sheikh at Major Lindsey and wellness consultant Jarrett Green.


Cos. That Mislead About ESG Compliance Do So At Their Peril

Updating marketing materials to appear compliant with a growing network of sustainability and human rights laws, without investing in thorough compliance measures, is a shortcut that puts a company at increasing risk for government enforcement, as well as civil actions initiated by angry consumers, says Angelika Hellweger at Rahman Ravelli.



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Special Series


Embracing ESG

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




In-House At A Cannabis Company

In this ongoing Expert Analysis series, in-house counsel at cannabis companies discuss the unique compliance issues they’re navigating as the industry burgeons into a multibillion-dollar ballgame.




Opinion


3 Recent Cases Highlight Public Nuisance Climate Suits' Flaws

Recent rulings by federal courts in West Virginia and Illinois, and a state court in Delaware, rejecting efforts to categorize societal problems like climate change as public nuisances are a sign that officials should give up on this litigation strategy, says Phil Goldberg at Shook Hardy and the Manufacturers’ Accountability Project.

FERC Proposal Conflicts With 'Major Questions' Doctrine

Federal Energy Regulatory Commission Chairman Richard Glick's recent claim that FERC retains the right to evaluate the greenhouse gas emissions of natural gas projects flies in the face of the so-called major questions doctrine laid out by the U.S. Supreme Court earlier this year, says attorney Terry Campo.



Access to Justice Perspectives


Algorithms Have Potential To Reduce Sentencing Disparities

Criminal legal system algorithms have mostly been used to assess the risk posed by defendants in settings like pretrial release, bail determinations, sentencing and parole supervision, but predictable modeling can also be used to reduce sentencing disparities and overly punitive outcomes, say ACLU researchers and collaborators.





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