Expert Analysis

The recent case of Davis v. EMSI Holding reminds us that basic Delaware law can defeat even the most well-crafted indemnification arrangements in a private company stock acquisition, says Craig Godshall of Dechert LLP.

The recent D.C. federal court decision in Banneker Ventures v. Graham underscores the close analysis that should accompany a decision to publicly disclose even a summary of an internal investigation that was conducted under the attorney-client privilege, say Nicholas Goldin and Yafit Cohn of Simpson Thacher & Bartlett LLP.

Insurers will often attempt to restrict the activities and fees of defense attorneys through the use of outside counsel guidelines. Such guidelines are not unilaterally binding and, if improperly applied, can raise the possibility of ethical violations if attorneys adhere to the restrictions in the guidelines against their better professional judgment, says John Scordo of K&L Gates LLP.

Since the enactment of the Defend Trade Secrets Act last year, savvy defendants have established a viable strategy: moving to dismiss the claim where the plaintiff has only alleged facts that show acts of misappropriation occurring prior to the law's enactment date. At least a half-dozen courts have tackled this “timing defense” and defendants raising it in motions to dismiss have seen mixed results, says Jonathan Shapiro of Epstein Becker Green.

In AD Investment, the U.S. Tax Court held that by asserting penalty defenses, two partnerships waived the attorney-client privilege. But the decision is at odds with the fundamental purposes of penalties and privilege, allows the IRS to litigate on “wits borrowed from its adversary,” and encourages it to use penalties as a bargaining chip, say attorneys with Mayer Brown LLP.

Last week, the Federal Trade Commission issued an updated six-step plan for businesses to comply with its Children’s Online Privacy Protection Act rule. Behnam Dayanim and Mary-Elizabeth Hadley of Paul Hastings LLP summarize the two key changes in the updated plan and review the six steps companies should take when considering COPPA.

Experienced practitioners swiftly recognized a practical barrier to implementing a national program of resale price maintenance agreements under Leegin’s more permissive approach — the antitrust laws of 50 states. The last decade has largely confirmed those initial reactions, say Michael Lindsay and Matthew Ralph, who lead Dorsey & Whitney LLP's antitrust practice.

The federal government’s unfolding enforcement priorities have galvanized state attorneys general into action. We expect this trend to continue, say attorneys with Akin Gump Strauss Hauer & Feld LLP.

The U.S. Supreme Court’s recent expansion of the patent exhaustion doctrine in Impression Products v. Lexmark raises potentially far-reaching implications that may range from lower prices for consumer products and lower profitability for companies, to higher prices for consumer products and higher profitability for companies, say Mark Baghdassarian and Friedrich Laub of Kramer Levin Naftalis & Frankel LLP.

Sensibly enough, in Maslenjak v. United States, the U.S. Supreme Court unanimously decided that a naturalized American cannot be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. But instead of simply stopping at that result, it invented a new standard of “materiality” that is likely to create havoc in future denaturalization cases, says Leon Fresco of Holland & Knight LLP.

Later this year, decisions are anticipated from various courts regarding the enforceability of employee class action waivers, the validity of the National Labor Relations Board's joint employer doctrine, and the appropriateness of "micro units" under the NLRB's 2011 Specialty Healthcare decision. Companies operating in the U.S. will want to closely monitor these decisions and understand their potential impact, says Jordan Faykus of Baker McKenzie.

The U.S. Supreme Court's recent Bristol-Myers Squibb ruling dealt a blow to plaintiffs attorneys seeking to manufacture personal jurisdiction by joining the claims of resident plaintiffs with those of nonresidents in state court. But some have suggested that the ruling does not apply to federal courts. This is an argument with no legs, say attorneys with Skadden Arps Slate Meagher & From LLP.

Given increased demand for litigation finance in the intellectual property space, it’s more crucial than ever for patent owners to understand the process for securing funding, say Ashley Keller and Katharine Wolanyk of Burford Capital LLC.

The requirement of actuarial equivalence presents interesting implications for Medicare Advantage organizations, the Centers for Medicare and Medicaid Services and other stakeholders keen on ensuring the fairness and equity of the Medicare Advantage payment process, given the propensity for error in identifying and reporting diagnosis coding, says Ursula Taylor of Butler Rubin Saltarelli & Boyd LLP.

With the Second Circuit's opinion in Stadnick v. Vivint Solar, we now have a situation where two federal appellate courts have promulgated differing standards to determine when companies making initial public offerings must disclose interim financial information. The question is whether we have a “split between the circuits” of the kind that might attract the attention of the U.S. Supreme Court, says Kevin LaCroix of RT ProExec.

Despite legal education training and the focus on logic and reason by the courts, lawyers address emotional issues on a daily basis — albeit more indirectly. But a shift to consciously and strategically addressing emotions gives us a powerful tool to help our clients reach faster, better decisions, say dispute resolution experts Robert Creo and Selina Shultz.

Recent significant shifts in privacy policy include an executive order withdrawing Privacy Act protections for non-U.S. individuals, and the rollback of the Federal Communications Commission's broadband privacy rules, says Jaipat S. Jain of Lazare Potter & Giacovas LLP.

While the Consumer Financial Protection Bureau has disregarded sovereignty since its creation, the problem has recently reached an all-time high. The CFPB v. Golden Valley case is merely the latest in a series of actions that demonstrate the bureau's mistreatment of tribal governments, says Saba Bazzazieh of Rosette LLP.

For the past two years, the Federal Circuit has relied on summary affirmances in nearly 60 percent of its cases. Thus, if the U.S. Supreme Court were to find, as recent cases argue, that the law requires the Federal Circuit to issue a written opinion in all cases, it could drastically slow down the appeals process, says Matthew Fagan of Kacvinsky Daisak Bluni PLLC.