Expert Analysis

• Responding To State Packaging Law Uncertainty

  

  As states roll out new packaging and recycling mandates, companies face expanding compliance duties and a growing wave of constitutional challenges that offer key lessons for managing regulatory risk, say attorneys at Crowell & Moring.

• CMS Rule, DOJ Probes Deepen Gender Care Compliance Risk

  

  The Centers for Medicare & Medicaid Services' final rule restricting Medicaid funding for hospitals that provide gender-affirming care is likely to face immediate litigation, but the CMS rulemaking is already working alongside U.S. Department of Justice's enforcement campaign to create operational risk for providers, say attorneys at Arnall Golden.

• New Del. Corp. Law's Technical Tweaks Bring Broad Changes

  

  While the new amendments to the Delaware General Corporation Law, which took effect on Aug. 1, appear technical, they have broad implications for wound-down corporations and carry personal exposure for whoever signed the certificate of dissolution, hinting at where entity law is heading next, says Ashwin Ram at Buchalter.

• How Trucking Cos. Can Tackle Risk From New DOJ Task Force

  

  Trucking companies should audit their drivers’ credentials and address risk areas lest they attract the attention of the new Justice Department-led task force against the fraudulent licensing of immigrants as commercial truckers, which is turning former questions of administrative or regulatory noncompliance into matters for federal prosecution, say attorneys at RJO.

• What To Expect From Colorado's New Artist Co. Structure

  

  Colorado's newly established class of artist companies, or A-Corps, provides a useful structure for small-scale ventures, but challenges could arise for more complex business plans, and limitations on investor participation may limit widespread adoption, say attorneys at Armstrong Teasdale.

• 2 Cases Shed Light On Invoking The 5th Before Congress

  

  Given the anticipated increase in congressional investigations following the midterm elections, those who anticipate being in Congress' spotlight can draw valuable Fifth Amendment lessons from the ongoing case involving Dr. Anthony Fauci's testimony and the D.C. Circuit’s recent ruling in de la Torre v. Cassidy, say attorneys at King & Spalding.

• AG Watch: Oregon Targets Consumer Costs

  

  Oregon Attorney General Dan Rayfield's challenges to bank interest rate and escrow preemption signal heightened scrutiny of consumer costs for lending services, requiring financial institutions serving Oregon and other states with opt-out laws to reassess compliance risk, says Keturah Taylor at Cozen O'Connor.

• Loper Bright Unlikely To Upend DEA Rescheduling Challenges

  

  As cannabis industry stakeholders await a U.S. Drug Enforcement Administration ruling on broader cannabis rescheduling, the U.S. Supreme Court's 2024 decision in Loper Bright to eliminate judicial deference to agency decisions should not dramatically affect cannabis rescheduling litigation risk, but it could marginally strengthen proponents' hand if the DEA denies rescheduling, say attorneys at Dentons.

• Money Transmission Issue Looms For Prediction Markets

  

  The circuit split recently created by the Ninth Circuit's ruling in Kalshi v. Assad has implications reaching beyond gaming regulation as, depending on the ultimate characterization of prediction market event contracts, platforms may face differing obligations under federal and state money transmission laws, say attorneys at Manatt.

• The Deep Split Over Mandatory Detention, And What's Next

  

  The government’s mandatory detention policy for noncitizens who entered the U.S. without inspection has led to a spate of decisions this year, with nine circuits rejecting the government's reading of the Immigration and Nationality Act against two that have accepted it, making the issue ripe for U.S. Supreme Court review, says attorney Kemal Hepsen.

• Intersecting Investigation Risks Loom In Next Congress

  

  Taken together, two July D.C. Circuit decisions and a recent U.S. Department of Justice opinion on executive privilege may affect the procedural defenses and privilege protections available to targets of oversight in the upcoming Congress, and companies should begin preparing now, say attorneys at WilmerHale.

• FTC Focus: A Shift In The Pricing Disclosure Terrain

  

  Recent state and Federal Trade Commission developments spotlight materially different ways in which personalized pricing might be addressed, which could result in an increasingly fragmented regulatory landscape in which businesses face differing disclosure obligations and substantive restrictions depending upon the jurisdiction, say attorneys at Proskauer.

• Attorneys Using AI May Have Ethical Duty To Redact Docs

  

  The trajectory of legal ethics guidance in recent years strongly suggests that as redaction technology becomes more accessible, the failure to use it when uploading highly confidential materials into artificial intelligence tools will become increasingly difficult to defend as reasonable, say attorneys at Lewis Brisbois.

• Compliance Lessons From Agriculture Co. Mexican Bribe DPA

  

  Agricultural company Scoular’s recently announced deferred prosecution agreement over alleged Foreign Corrupt Practices Act violations at the U.S.-Mexico border reinforces the U.S. Department of Justice’s focus on cartels, and companies must accordingly ensure they address risks associated with the use of customs brokers, says Adam Safwat at Foley Hoag.

• OpenAI Deal Highlights AI Hiring Risks In PERM Process

  

  The U.S. Department of Justice's recent settlement of allegations that OpenAI discriminated against U.S. applicants for positions connected to the permanent labor certification process underscores that employers providing or using artificial intelligence must align their recruitment practices with their overlapping compliance obligations, say attorneys at Duane Morris.