Expert Analysis

While some believe that two recent circuit court decisions — Medidata Solutions and American Tooling — represent a shift toward broadening insurance coverage for phishing attacks, the courts' imprecise interpretation of "integrity" and "instructions to" a computer system casts doubt on whether the decisions will stand, says Joshua Mooney of White and Williams LLP.

Massachusetts' new noncompete law will take effect on Oct. 1. Erik Weibust and Robert Fisher of Seyfarth Shaw LLP address some of its more confusing provisions and how employers can comply without major disruption to how they are currently doing business.

The Republican package known as tax reform 2.0, expected to come to a vote on the House floor as early as Wednesday, may not go anywhere, but the legislative process gives us hints as to what the Democratic tax agenda will look like in the new Congress, particularly if they regain a House majority, says Lai King Lam of McGuireWoods Consulting LLC.

In recent years, businesses have increasingly teamed up with charities to promote products or charitable causes. However, if these campaigns are not executed properly, they can lead to civil and criminal penalties, taxes and bad publicity for all parties involved, says Russell Stein of Partridge Snow & Hahn LLP.

While in-house technology investments on the scale and complexity needed to compete with large firms remain cost prohibitive for small and midsize law firms, cloud-based services offer significant cost savings and productivity gains with little to no capital investment, says Holly Urban of Effortless Legal LLC.

Employers today face a host of modern labor law issues amid a continually changing political and legal landscape. In this Expert Analysis series, former National Labor Relations Board members provide insights on recent issues before and within the board.

Key performance indicators have been a topic of concern for the U.S. Securities and Exchange Commission for some time, but enforcement actions have been less prevalent. Recent actions coupled with statements by commission officials, however, suggest that KPIs may become more of a focus for the current SEC, say Brooke Clarkson and Jessica Matelis of Foley & Lardner LLP. 

The Office of the Comptroller of the Currency recently proposed regulations to implement the “covered federal savings association” designation introduced by the Economic Growth, Regulatory Relief, and Consumer Protection Act. For many eligible institutions, opting for this designation will make a great deal of sense, says Joan Guilfoyle of Jones Walker LLP.

CVS is the first major drugstore company to offer customers the option to use their smartphone to “see” a doctor. With the U.S. Department of Justice affording more resources to health care fraud prosecutions, telemedicine services are certain to attract the scrutiny of investigators, say Lionel André and Michelle Bradford of Murphy & McGonigle PC.

Historically, a trademark owner could challenge a junior user’s application in the Trademark Trial and Appeal Board and, regardless of outcome, subsequently sue in federal court for damages and equitable relief. A recent shift has upended this law and made it decidedly more risky to commence proceedings at the TTAB, say David Marroso and Megan Smith of O’Melveny & Myers LLP.

A recent decision from the National Advertising Division involving content in Buzzfeed’s “Shopping Guide" provides important guidance to advertisers and publishers, particularly with respect to distinguishing between editorial content and advertising, says Terri Seligman of Frankfurt Kurnit Klein & Selz PC.

Although the U.S. Equal Employment Opportunity Commission recommends that employers maintain the confidentiality of internal sexual harassment investigations to the extent possible, this recommendation may conflict with a 2012 ruling by the National Labor Relations Board, says Mehreen Rasheed of Katz Marshall & Banks LLP.

When approaching M&A, investments and other transactions associated with artificial intelligence, we must take into consideration the nature of the technology today, the anticipated technological developments and the evolving legal landscape, say Lee Tiedrich and Daniel Gurman of Covington & Burling LLP.

A deep dive into data on deal terms in midstream oil and gas acquisition agreements reveals significant insights on “what’s market” and what's not in such deals. As compared to a broad cross-section of agreements across industries, the midstream M&A acquisition agreements studied generally allocated more of the risks — especially unknown risks — to buyers, says Greg Krafka of Winstead PC.

With the Milbank/Cravath pay scale once again equalizing compensation at many Am Law 100 firms, there is even more pressure for firms to differentiate themselves to top lateral associate candidates. This presents strategic considerations for both law firms and lateral candidates throughout the recruitment process, says Darin Morgan of Major Lindsey & Africa.

Last week, the IRS issued its first guidance as to proposed rule-making on global intangible low-taxed income. This is a welcome start at clarification and integration of GILTI with other code sections but more guidance is necessary, especially as to the Section 250 deduction and the workings of the foreign tax credit, says Robert Kiggins of Culhane Meadows LLP.

The Private Target Mergers & Acquisitions Deal Points Studies prepared by the American Bar Association’s Business Law Section have been a key resource for M&A attorneys for over a decade. In this two-part article, Greg Krafka of Winstead PC examines data from the most recent study and other sources to systematically identify “what’s market” concerning deal terms in midstream oil and gas acquisition agreements.

In a ruling earlier this month concerning Bayer's "One A Day" vitamin gummies, a California state appeals court clarified how the defendant cannot rely on the fine print to escape a mislabeling claim at the pleadings stage. In doing so, the court appears to have laid a road map for how to defeat class certification in such cases, say Robert Guite and Jay Ramsey of Sheppard Mullin Richter & Hampton LLP.

The Massachusetts high court recently found that a shoe manufacturer’s use of a runner’s name potentially triggered advertising injury insurance coverage, even though the name had not acquired secondary meaning or trademark status. The Holyoke v. Vibram decision is notable because of the court's focus on the intent of the athlete's family business, says Gregory May of Nelson Mullins Riley & Scarborough LLP.