Expert Analysis


Accelerating Regulatory Reform For Replica Vehicles

Specialty Equipment Market Association v. National Highway Traffic Safety Administration may have sped up the agency's delayed rulemaking on replica vehicles, but companies should stay involved by submitting comments before regulations are finalized, say Anne Marie Ellis and Taylor Brown at Buchalter.


Justices' SEC Disgorgement Ruling May Shape FCPA Matters

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.


Excerpt from Lexis Practice Advisor

Using The M&A Slowdown To Prepare A Portfolio Co. For Sale

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.


What OFAC Means By A Risk-Based Approach To Compliance

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.


NYC COVID-19 Lease Guarantee Law May Be Unconstitutional

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.


COVID-19's Strain On Hospitals May Necessitate More Relief

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.


Preparing For A Deluge Of COVID-19 Whistleblower Claims

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.


A Guide To Evaluating And Advertising COVID-19 Products

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.


Excerpt from Lexis Practice Advisor

COVID-19, Contango And Energy's New Economic Reality

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 Texas Case Could Put Electronic Agreements In Jeopardy

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.


New Risk Of Whistleblower, Retaliation Claims In Health Care

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.


Keys To Success Through Secondary Considerations At PTAB

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.


Treat Internal Investigation Search Term List As Work Product

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.


2 New Accounting Fraud Cases Offer Lessons For Boards

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.


UK Lawyers Can Adapt Due Diligence To Screen New Clients

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.


NY Ruling Highlights Limits To Employee Noncompetes

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.


Traps For The Unwary In Class Actions Targeting PPP Lenders

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.


Strategies For Defending FTC Investigations During Pandemic

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.


A Post-COVID-19 Road Map For UK Financial Services

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.


The Current Barriers To International Health Cooperation

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.




Q&A


Coping With A Pandemic: Trial Lawyer Mark Beck

As society continues to adapt to COVID-19, Law360 is sharing reactions from around the business and legal community. Today's perspective comes from Pasadena-based Mark E. Beck, founder of Beck Law PC specializing in white collar criminal defense and investigations.



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.




Pursuing Wellness

In this Expert Analysis series, leaders at some of the law firms that committed to the American Bar Association's 2018 pledge to improve mental health and well-being in the legal industry explain how they put certain elements of the initiative into action.




Op-Eds


Credibility Concerns About Virtual Arbitration Are Unfounded

Concerns that videoconferenced arbitration hearings compromise an arbitrator's ability to reliably resolve credibility contests are based on mistaken perceptions of how many cases actually turn on credibility, what credibility means in the legal world, and how arbitrators make credibility determinations, says Wayne Brazil at JAMS.

COVID-19 Relief Should Fund A Federal Infrastructure Bill

To create jobs and address the country's $4.5 trillion infrastructure backlog, the federal government should enact coronavirus relief directed at infrastructure investment, leveraged by the allocation of funds for public-private partnerships, say Andrej Micovic and Eric Singer at Bilzin Sumberg.



Access to Justice Perspectives


Legal Aid Needs Law Firm Support Now More Than Ever

With the need for pro bono services expected at unprecedented levels in the wake of the pandemic, and funding sources for legal aid organizations under severe stress, law firm leaders need to take measures to fill the gap, says Jeffrey Stone, chairman emeritus at McDermott.




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