Expert Analysis

• Remembering An Underappreciated Legal Skill — Listening

  

  Education around listening skills is often neglected amid the dominance of visual media and written communication, and failed lawyering often comes down to an inability to listen accurately, so educators and law firms must prioritize the skill in their training programs, says James Flynn at Epstein Becker.

• DOJ Kickback Concerns Extend Beyond Federal Funds

  

  The U.S. Department of Justice's growing interest in using the Travel Act and the Eliminating Kickbacks in Recovery Act reflects a wider enforcement priority to address kickbacks in the health industry, meaning that companies need to reassess referral-based arrangements even when federal programs are not involved, say Jaime Jones and Brenna Jenny at Sidley.

• Attorneys Can Promote Trade, Security Amid Global Conflict

  

  As nations take sovereign action to fight Russia’s aggression against Ukraine and the international rule of law, attorneys can combine their legal and business tools to help the global systems of trade and security in these troubled times, say Thomas Grant at Cambridge University and Scott Kieff at George Washington University.

• Series

  The Future Of Legal Ops: Reining In Outside Counsel Costs

  

  In-house legal departments are under increasing pressure to control spending on outside counsel, but traditional cost-cutting methods — law firm panels, alternative fee arrangements and alternative legal service providers — are limited, making it necessary to establish a more competitive law firm engagement process, say John Burke and Vincenzo Purificato at UBS.

• When Congress Seeks Cos.' Nonpublic Info From Regulators

  

  Increasingly, congressional investigators seek out private parties' confidential documents from the federal agencies that regulate them — and because Congress is uniquely empowered to override nondisclosure protections surrounding nonpublic information, companies must understand the rules and risks involved, say attorneys at Covington.

• Health Care Is In DOJ's Criminal Antitrust Crosshairs

  

  The U.S. Department of Justice's criminal antitrust enforcement in health care has picked up significant momentum in recent years, notably in the industry's labor market, amplifying the importance of proactive compliance programs, say Dylan Carson and Antonio Pozos at Faegre Drinker.

• In Early Mediation, Negotiate With Empathy, Not Threats

  

  With courts encouraging early settlement conferences to tackle the COVID-19 backlog, parties should consider that authenticity, honesty and the ability to see beyond one's own talking points are far more persuasive tools than threats of a distant possible determination by a court or arbitrator, says Sidney Kanazawa at ARC.

• The USPTO May Be Miscalculating Patent Term Adjustments

  

  Because the U.S. Patent and Trademark Office’s patent term adjustment algorithm does not yet fully account for a 2020 revision to how PTA is calculated, patent applicants may be entitled to additional or less PTA, and it is an applicant's responsibility to seek corrections, say attorneys at Troutman Pepper.

• Addressing Problematic Drinking In The Legal Profession

  

  To curb problematic drinking, on the rise during the pandemic, legal employers should implement comprehensive responsible drinking policies that are taken seriously by firm leadership, and provide alternatives for creating a healthy workplace culture, says Anne Brafford at the Institute for Well-Being in Law.

• Rulings, FDA Guidance May Help Food Cos. In Protein Suits

  

  Recent guidance from the U.S. Food and Drug Administration on food labels' protein claims, and a California federal court's dismissal of lawsuits over the same issue, suggest that food manufacturers facing similar litigation can argue that FDA labeling rules preempt customer claims, say attorneys at MoFo.

• Transforming Law Firms' Diversity Intent Into Real Progress

  

  In order for law firms to convert their diversity and inclusion activity into lasting advancements, they must prioritize accountability and transparency when crafting policies, and take steps to engage with attorneys and staff at all levels, say Jacqueline Simonovich at Weintraub Tobin and Lindsey Mignano at Smith Shapourian.

• Where DOJ Is Heading On Consumer Protection Enforcement

  

  A first-ever annual report from the U.S. Department of Justice Civil Division's Consumer Protection Branch highlights its recent accomplishments, previews coming enforcement trends and shows that the CPB is actively seeking new areas in which to apply its broad enforcement mandate, say attorneys at Wiley.

• Opinion

  Justices Must Apply Law Evenly In Shadow Docket Rulings

  

  In recent shadow docket decisions, the U.S. Supreme Court has inconsistently applied the requirement that parties demonstrate irreparable harm to obtain injunctive relief, which is problematic for two separate but related reasons, says David Hopkins at Benesch.

• Tips For Negotiating Litigation Funding Agreements

  

  Allen Fagin and Ralph Sutton at Validity Finance break down the key components of litigation funding term sheets — from return calculations to funder involvement — and explain what law firm leaders should keep in mind when negotiating these provisions.

• What's Notable In DOJ's 1st Cyber-Fraud Initiative Settlement

  

  The U.S. Department of Justice recently announced its first settlement under the Civil Cyber-Fraud Initiative, and this case involving Comprehensive Health Services gives some further insight into how the DOJ may utilize different theories or tools to prosecute or settle matters as part of its initiative, say attorneys at Verrill Dana.