Expert Analysis

• Opinion

  Merger Guidelines Should Provide For Competition Trustees

  

  Following the U.S. antitrust agencies' release of draft merger guidelines, retired U.S. Court of Federal Claims Chief Judge Susan Braden suggests a court-appointed competition trustee would help ensure U.S. competition without impairing economic prosperity.

• NYC Cannabis Landlord Accountability Law Has Limitations

  

  A recently passed bill in New York City, aiming to crack down on the illegal cannabis market by levying fines against landlords who knowingly lease to unlicensed sellers, contains loopholes that may potentially limit the bill’s impact and lead to unintended consequences, say attorneys at Falcon Rappaport.

• Investors With ESG Aims Should Heed Antitrust Reporting Rules

  

  As investors globally are embracing environmental, social and governance investing, regulatory agencies have made clear that ESG initiatives are not immune from antitrust scrutiny, and investors cannot count on receiving special exemptions from the Hart-Scott-Rodino Act reporting requirements, say Jonathan Gleklen and Francesca Pisano at Arnold & Porter.

• Rebuttal

  Calif. PAGA Ruling Not A Total Loss For Employer Arbitration

  

  Contrary to the conclusion reached in a recent Law360 guest article, the California Supreme Court’s ruling in Adolph v. Uber Technologies did not diminish the benefit of arbitrating employees’ individual Private Attorneys General Act claims, as the very limited ruling does not undermine U.S. Supreme Court precedent, says Steven Katz at Constangy.

• Regulatory Questions Loom As Lab-Grown Meat Hits Market

  

  As cell-cultured meat gains popularity and moves quickly to market, food-labeling questions will be a test of the U.S. Department of Agriculture and the U.S. Food and Drug Administration's ability to seamlessly coordinate efforts to ensure safety, says Laurie Beyranevand at Vermont Law School.

• California's PFAS Bans May Have National Ripple Effects

  

  As California moves to phase out per- and polyfluoroalkyl substances from many categories of consumer products, other states may soon follow — so manufacturers would be well advised take action now, or risk losing substantial market share, says Vineet Dubey at Custodio & Dubey.

• Merger Guidelines' Broad Tack Ignores Recent Precedent

  

  The U.S. Justice Department and Federal Trade Commission's new proposed merger guidelines are consistent with the Biden administration's expansive approach to antitrust enforcement, but they fail to grapple meaningfully with much of modern economic precedent and court decisions requiring greater agency rigor in merger analysis, say attorneys at Freshfields.

• Ch. 11 Ruling Informs On Social Media Ownership Rights

  

  Social media users now have useful guidance regarding account ownership rights following a federal bankruptcy court's recent ruling in the Vital Pharmaceuticals Chapter 11 case, which rejected the notion that advertised content alone could create a presumption of ownership for the advertised business, say Deborah Enea and Thomas Dockery at Troutman Pepper.

• Perspectives

  Mallory Gives Plaintiffs A Better Shot At Justice

  

  Critics of the U.S. Supreme Court's recent decision in Mallory v. Norfolk Southern claim it opens the door to litigation tourism, but the ruling simply gives plaintiffs more options — enabling them to seek justice against major corporations in the best possible court, say Rayna Kessler and Ethan Seidenberg at Robins Kaplan.

• Canada Emoji Ruling Considers Digital-Age Contract Realities

  

  In South West Terminal v. Achter Land & Cattle, a Canadian court recently held that a thumbs-up emoji was just as valid as a signature, illustrating a common situation in the digital age and setting forth a rational framework for addressing contract disputes in U.S. courts and elsewhere, says George Singer at Holland & Hart.

• Cannabis Cos. Must Heed PFAS Risks In Products, Packaging

  

  Cannabis businesses and ancillary service providers will have to grapple with evolving PFAS enforcement, litigation and regulations – most recently enacted in Minnesota – and take steps to mitigate risks posed by forever chemicals in their products and packaging, say Malina Dumas and Amy Rubenstein at Dentons.

• Calif. PAGA Ruling Devalues Arbitration For Employers

  

  The California Supreme Court’s recent opinion in Adolph v. Uber may lessen employers' appetites for arbitration under the state’s Private Attorneys General Act, because arbitrating an allegedly aggrieved employee’s individual claims is unlikely to dispose of their nonindividual claims, say attorneys at Greenberg Traurig.

• Employer Pointers From Tiger Woods' Legal Dispute With Ex

  

  Ex-girlfriend Erica Herman's sexual harassment suit against Tiger Woods, which was recently sent to arbitration, highlights the need for employers to understand their rights and responsibilities around workplace relationships, nondisclosure agreements and arbitration provisions, say Stephanie Reynolds and Sean McKaveney at Fisher Phillips.

• Conflicting NLRB Stances Create Employer Compliance Plight

  

  Contradictory positions set forth by the National Labor Relations Board’s general counsel — asserted in a recent unfair labor practice judgment against CVS and a pending case against Starbucks — place employers in a no-win dilemma when deciding whether they can provide wage and benefit improvements to both union and nonunion employees, says Alice Stock at Bond Schoeneck.

• Insurance Insights From 5th Circ. Blue Bell Coverage Ruling

  

  The Fifth Circuit's recent ruling that denied Blue Bell insurance coverage for the defense costs incurred from a shareholder lawsuit underscores the importance of coordination of different coverages and policies across programs, and the potential perils of seeking recovery for losses under nontraditional policies, say Geoffrey Fehling and Casey Coffey at Hunton.