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Expert Analysis


8 Innovative Ways To Empower Jurors

Much time and attention has been focused on improving lawyers' abilities to communicate with and persuade juries in complex trials. But it is equally important to equip and prepare jurors to become better students in the courtroom, say attorneys with DLA Piper and Litstrat Inc.


Medidata And American Tooling Courts Misunderstood Tech

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.


Navigating The New Mass. Noncompete Morass

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.


GOP Tax Law Guides Dems To Future Offsets

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.


Legal Pitfalls To Avoid In Social Cause Marketing Campaigns

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.


Cloud Computing Clearly The Future For Small Firms

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.


Roundup

Navigating NLRB

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.


Signs Of Renewed SEC Interest In Key Performance Indicators

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. 


Benefits Of New Federal Savings Association Designation

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.


Telemedicine — The Next Frontier For DOJ Scrutiny?

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.


Caution, Preclusion Ahead: The New TTAB Landscape

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.


If Editorial Content Includes Affiliate Links, Is It An Ad?

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.


EEOC And NLRB Inconsistent On Confidential Investigations

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.


10 Best Practices For Due Diligence In AI Transactions

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.


Key Trends In Midstream Oil And Gas Deals: Part 2

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.


Leveraging Today's Lateral Associate Market

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.


GILTI Guidance Defers Dealing With Most Vexing Issues

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.


Key Trends In Midstream Oil And Gas Deals: Part 1

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.


'One A Day' Will Not Keep Plaintiffs Away

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.


When Athlete’s Name Is 'Advertising Idea' Without Trademark

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.




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.




Clerking For Ginsburg

Justice Ruth Bader Ginsburg joined the U.S. Supreme Court 25 years ago and is not planning to retire anytime soon — she has hired clerks through 2020. What's it like to assist Justice Ginsburg? In this series, former clerks reflect on the experience.

Cities In Distress

Five years after the city of Detroit filed for Chapter 9 bankruptcy, experts look at the financial troubles of Chicago and other U.S. cities in this special series.



Q&A


Back To School: Stanford's Jeff Fisher Talks Supreme Court

In this series featuring law school luminaries, Stanford Law School professor Jeffrey Fisher discusses his motivation for teaching, arguing before the U.S. Supreme Court and what the court might look like if Judge Brett Kavanaugh is confirmed.



Op-Eds


Separate The NSA And Cyber Command Now

Since its inception in 2009, U.S. Cyber Command has been functioning concurrently and under the same leadership as the National Security Agency. In the beginning this may have been appropriate, but in today’s environment they should be conducting their missions independently, says Daniel Garrie of JAMS.

Why The World Anti-Doping Agency Must Be Replaced

On Thursday, the World Anti-Doping Agency ended Russia's suspension for doping​, causing an uproar among athletes and drug prevention administrators because of what they believe is insufficient punishment​. But there is a much deeper problem — WADA enabled the Russian doping, says Ronald Katz of GCA Law Partners LLP.