Expert Analysis

• Opinion

  Md. Court Got Ad Tax Similarity Analysis Wrong

  

  Decisions striking Maryland’s digital advertising tax are fundamentally flawed because the Maryland Tax Court found similarity between digital ads and other ads without considering deep market distinctions, says Darien Shanske at UC Davis School of Law.

• Opinion

  NC Litigation Funding Ban Sets Model For Other States

  

  States worried about rising liability costs and the commercialization of their courts should treat North Carolina's recently enacted litigation funding ban as a model because a prohibition adequately addresses the distortion that disclosure only documents, say attorneys at McAngus Goudelock.

• The Future Of DOL Judge Removal Challenges After Slaughter

  

  The U.S. Supreme Court's recent ruling in Trump v. Slaughter calls into question whether U.S. Department of Labor administrative law judges exercising significant governmental authority remain insulated from presidential removal, but the answer depends on the governing statute, its severability provisions and other factors, says Mark Ishu at Conn Maciel.

• DOJ Executive Privilege Opinion Portends 3rd-Party Dilemmas

  

  The recent opinion from the U.S. Department of Justice’s Office of Legal Counsel concluding that executive privilege can shield the president's communications with private advisers may lead to interbranch disputes, and companies must come up with a response plan now before they’re caught in the middle, say attorneys at Gibson Dunn.

• Planning For The Impact Of FinCEN's CTA Rollback

  

  The Financial Crimes Enforcement Network's recent rollback of Corporate Transparency Act reporting obligations should reduce compliance costs, but its plans to revisit customer due diligence rules should prompt companies and financial institutions to reassess state beneficial ownership programs, say attorneys at Sidley.

• How 'Swap' Fight Underpins Prediction Market Enforcement

  

  As courts around the country grapple with whether, and under what circumstances, event contracts qualify as swaps, federal enforcement authority hangs in the balance, with implications for companies that need to manage compliance risks during this period of legal uncertainty, say attorneys at Debevoise.

• EPA Guidance May Simplify On-Site Power For Data Centers

  

  At a moment when wait times to connect large loads to the electric grid can stretch into years, two recent U.S. Environmental Protection Agency guidance documents seek to make it easier for data center developers to set up on-site power generation — but much will depend on how quickly states and localities update their own rules, say attorneys at Alston & Bird.

• Fed's Capital Rule Proposal Could Help Banks Stay Mutual

  

  The Federal Reserve Board's recent proposal to comprehensively rewrite its capital rule and reduce procedural requirements for mutual holding companies would support community banking by allowing mutual institutions new ways to fund growth without converting to stock form, say attorneys at Nutter.

• 8(a) Firms Face New Risks From Pass-Through Arrangements

  

  ​Prime contractors and subcontractors with pass-through arrangements involving the Small Business Administration's 8(a) business development program should ensure they are prepared for heightened litigation risks created by the administration’s use of False Claims Act whistleblowers to target fraud in diversity, equity and inclusion programs, say attorneys at RJO.

• Justices' Hikma Reasoning May Extend Well Beyond Pharma

  

  The active steps framework announced by the U.S. Supreme Court in its Hikma v. Amarin decision, finding that Amarin failed to plausibly allege inducement of infringement, has the potential to reshape how courts evaluate inducement claims across patent, copyright and other doctrines, say attorneys at BCLP.

• The State Of Prediction Market Litigation After 9th Circ. Ruling

  

  The Ninth Circuit's recent decision in Kalshi v. Assad gives state regulators significant appellate backing to enforce state gaming laws over prediction markets, creating a direct split with the Third Circuit that will likely lead to Supreme Court review of the question, say attorneys at Arnold & Porter.

• CISA Town Halls Signal Key Cyber Rule Changes Ahead

  

  The Cybersecurity and Infrastructure Security Agency recently held a series of town halls to gather additional stakeholder input on the Cyber Incident Reporting for Critical Infrastructure Act, offering potential insights into how the agency may address key issues in a forthcoming final rule, say attorneys at Covington.

• 11th Circ. FCA Qui Tam Revival Queues Up Next Challenges

  

  Though the Eleventh Circuit on Sept. 1 upheld the constitutionality of the False Claims Act's qui tam provision, it will probably face continued litigation since the appellate court declined to rule on other constitutional challenges and the decision will likely be petitioned to the U.S. Supreme Court, say attorneys at Sheppard.

• Home Equity Products Face Expanding Regulatory Patchwork

  

  Home equity investment providers, which have recently come under scrutiny from regulators and industry groups, face meaningful burdens as the U.S. Senate and a growing number of states take divergent regulatory approaches, with no uniform standard likely anytime soon, say attorneys at Bradley.

• How Orbital Data Centers May Test NEPA's Reach

  

  With environmental and scientific groups recently pushing back against the Federal Communications Commission's proposal to exempt massive data center satellite constellations from review under the National Environmental Policy Act, the question of whether NEPA even applies to projects in space turns on three closely related issues, say attorneys at Morgan Lewis.