Expert Analysis


Gov't Nonintervention In Agape And Future FCA Cases

The Fourth Circuit's recent Agape decision is a reminder that the government’s nonintervention in a False Claims Act case should not be mistaken for government disinterest, says Joshua Hill of Morrison & Foerster LLP.


The Challenges For CEA Price Manipulation Plaintiffs

The recent contrasting outcomes of the regulatory and private actions against Total Gas illustrate at least one significant difference between public and private price manipulation enforcement under the Commodity Exchange Act — private plaintiffs have a difficult, and sometimes insurmountable, hurdle to overcome, say attorneys with Skadden Arps Slate Meagher & Flom LLP.


10 Ways To Avoid Construction Defect Litigation In Colo.

If passed, Colorado's HB 1279 will be helpful to developers of residential projects, requiring community home owners to approve construction defect litigation. However, even if the bill passes, developers should continue to implement a number of strategies to mitigate the risk of litigation, says Rebecca Dow of Holland & Hart LLP.


Thinking Fast And Slow About Class Action Reform

Corporate interests lobbying for H.R. 985, the anti-class action bill recently passed by the U.S. House of Representatives, are the same ones that pushed the Class Action Fairness Act in 2005. That law caused most significant class actions to migrate to federal courts. Ironically, the new bill could return many class actions to state courts, says Michael Donovan of Donovan Litigation Group LLC.


'Milking' The 1st Amendment To Defend Food Label Claims

The Eleventh Circuit's recent decision in Ocheesee Creamery v. Putnam could have potentially significant ramifications for the labeling and advertising of foods and pharmaceuticals. The opinion shows that it may be time for companies to more aggressively defend their First Amendment rights, say Andre Timothy Hanson and Saul Howard Perloff of Norton Rose Fulbright US LLP.


Repeal Of FCC Privacy Rules Leaves America Vulnerable

The congressional repeal of the Federal Communications Commission's October 2016 privacy rules will have security implications far beyond what was ever envisioned or intended. The end result will be a disaster not just for Americans' privacy, but for America's cybersecurity as well, says John Stephens of Sedgwick LLP.


The Impact Of Tax Reform On Private Equity

While predicting exactly where President Trump and Congress will land when it comes to tax reform is at best an inexact science, some consistent themes have emerged, including a widespread elimination of deductions. The impact of eliminating corporate-level deductions for private equity funds cannot be understated, say attorneys with Orrick Herrington & Sutcliffe LLP.


PTAB Follows Case Law, Design Examiners Should Too

Recent Patent Trial and Appeal Board decisions have revealed significant inconsistencies between how the board and the design examination corps are interpreting case law. The most noticeable is with regard to the written description requirement under Section 112 and its role in establishing a priority claim under Section 120, say Tracy-Gene Durkin and Daniel Gajewski of Sterne Kessler Goldstein & Fox PLLC.


Florida 'Black Box' Ruling: Game Changer For Vehicle Tech

A split panel of a Florida state appellate court has held that police need a warrant to search a vehicle’s electronic data recorder or “black box” absent exigent circumstances. The ruling in Florida v. Worsham demonstrates that the constitutional, legislative and regulatory privacy protections afforded data-capturing vehicle technologies are expanding rapidly, say Tina Sciochetti and Charles Dell'Anno of Nixon Peabody LLP.


In New York Lending Agreements, The Contract Rules

In some states, borrowers may invoke the “implied covenant of good faith and fair dealing” to circumvent certain express loan terms. The recent decision in Transit Funding Associates v. Capital One Equipment Finance made clear that such arguments will be rejected by New York’s First Department, says Richard Epstein of Sills Cummis & Gross PC.


The 9-Year Winning Streak Of Virginia ‘Rocket Docket’

Out of 94 district courts, the Eastern District of Virginia has been the fastest civil trial docket in the country for nine straight years. Without micromanaging the process, the EDVA's judges, magistrate judges, and clerks and staff continue to perform at a stunningly efficient level, says Bob Tata of Hunton & Williams LLP.


Employment Class Waivers: Which Came First, FAA Or NLRA?

Until the U.S. Supreme Court determines whether mandatory arbitration agreements containing class action waivers are enforceable under the Federal Arbitration Act — despite any protections afforded by the National Labor Relations Act — a close reading of recent appellate decisions provides employers with guidance to overcome the current attacks on such agreements, say Bonnie Burke of Lawrence & Bundy LLC and Christina Tellado of Reed Smith LLP.


Time For Costs Budgeting In International Arbitration?

With the introduction of costs budgeting in the form of Precedent H, English litigation has taken a more cost-conscious approach to the resolution of disputes than its arbitration counterpart. For arbitration users, a Precedent H counterpart does not exist, says Margarita Michael of O’Melveny & Myers LLP.


What Act 170 Means For Shareholder Litigation In Pa.

Pennsylvania corporations should not overlook Act 170’s provisions concerning shareholder litigation, which differ from Delaware’s standards and procedures in several important respects. The newly effective law is more demanding of shareholders and deferential to the properly considered determinations of a corporation, say Michael Kichline and Stuart Steinberg of Dechert LLP.


Understanding The Amended Executive Branch Gift Rules

The ethical guidelines governing the conduct of federal officials have received much media attention in recent months. Given new changes to the rules around acceptance of gifts by executive branch personnel, both federal employees and those who interact with them on a personal or professional basis should know what is and is not permissible, say attorneys with WilmerHale.


Ability-To-Repay Enforcement Comes To Auto Finance

In recent years, regulators and enforcement agencies have eagerly exercised their authority to prosecute what they perceive as unfair or deceptive acts and practices. Recent events suggest that they may be gearing up to hit the accelerator by using UDAP theories to extend ability-to-repay principles to auto finance, say attorneys with Buckley Sandler LLP.


Scott Gottlieb And The Future Of The FDA

The Senate Committee on Health, Education, Labor and Pensions recently held a hearing on the nomination of Scott Gottlieb to be the next commissioner of the U.S. Food and Drug Administration. His comments on FDA policy issues including drug pricing and approvals, food safety and labeling, and the tobacco “deeming” rule offer guidance on the future of the agency, say attorneys from Kelley Drye & Warren LLP.


No Contractor Liability For False Statement Gov't Didn't See

Aggressive prosecutors could argue that a Section 1001 violation is complete as soon as a falsified record is entered into a government contractor’s internal database — even if the contractor rectifies the situation before the record is actually presented to the government. But two cases provide contractors with a ready counterpoint, say Joseph Barton and Laura Alexander of Sheppard Mullin Richter & Hampton LLP.


Why Colbert Can't Play 'Colbert': Tonight's Word — Copyright

Last week, "The Late Show" daringly flouted Viacom’s wishes by having host Stephen Colbert reprise his "Colbert Report" character to bid farewell to Bill O’Reilly. With CBS exercising such blatant disregard for Viacom’s demand, the situation is sure to come to a head, says Adam Litwin of Bell Nunnally & Martin LLP.


Calif. Insurance Regulation Defies Trump’s America

As California finds itself at odds with the Trump administration, the state is actively working to cement its regulatory framework over hot-button issues that will have knock-on impacts on the insurance industry. Gov. Jerry Brown will likely seek to strengthen the state's regulatory power, and the California courts have recently decided two major cases in favor of the Department of Insurance, says Nathaniel Braun of Selman Breitman LLP.




Special Series


Counsel To Counsel: Insights From Law Firm GCs

General counsel at four law firms share the biggest issues they face in an increasingly complex legal environment.

3 Tax Reform Perspectives

In this recent series on federal tax reform, practitioners explore current proposals and initiatives, and reflect on how past efforts to change the system may provide lessons — and warnings — for today's would-be tax reformers.

Evaluating FCPA Pilot Program

In April 2016, the U.S. Department of Justice launched a pilot program to reward companies that voluntarily self-report violations of the Foreign Corrupt Practices Act. Now that a year has passed, this series examines the impact and potential future of the program.



Op-Eds


Time For High Court To Clarify Presumption Of Patent Validity

Courts continue to invalidate patents under Section 101 without adhering to the presumption of validity standard mandated by Congress in Section 282 and the U.S. Supreme Court in i4i. The Supreme Court can set the record straight in Broadband iTV v. Hawaiian Telcom, say Charles Macedo and Sandra Hudak of Amster Rothstein & Ebenstein LLP.

Let's Talk About Half-Hearted Innovation

Allowing attorneys to telecommute may seem like a great fix for law firms. But without significant changes to the firm's culture, telecommuting is just a patch applied to the problem of attrition, says Michael Moradzadeh, founding partner of Rimon PC.



Q&A


Plaintiffs Bar Perspective: Hall Lamb's Matthew Leto

As a plaintiffs lawyer, you have to be tenacious and capable of adapting quickly. Not every hearing will go your way and not every witness will provide favorable testimony, says Matthew Leto, partner at Hall Lamb Hall & Leto PA.