Expert Analysis


More Than Drugs At Stake In High Court's 'Blind Mule' Case

The U.S. Supreme Court's eventual decision in Diaz v. U.S., evaluating whether expert witnesses may testify that most defendants caught with drugs at the border know they are transporting drugs, could have implications for prosecuting everything from complex financial crimes to gun and drug cases, says Kenneth Notter at MoloLamken.


9 Considerations For Divestitures, Carveouts And Spinouts

Amid new economic optimism, data protection, transitional services and seven other considerations can help legal practitioners untangle complex divestitures, carveouts and spinouts to unlock value for corporate sellers, say Kimberly Petillo-Décossard and Kristen Rohr at White & Case.


Why Fla. High Court Adopting Apex Doctrine Is Monumental

The Florida Supreme Court recently solidified the apex doctrine in the Sunshine State, an important development that extends the scope of the doctrine in the state to include both corporate and government officials, and formalizes the requirements for a high-level corporate official to challenge a request for a deposition, says Laura Renstrom at Holland & Knight.


5 Lessons For SaaS Companies After Blackbaud Data Breach

Looking at the enforcement actions that software-as-a-service provider Blackbaud resolved with state attorneys general, the U.S. Securities and Exchange Commission and the Federal Trade Commission in the past year can help SaaS companies manage these increasingly common forms of data breaches, say attorneys at Orrick.


Why Biz Groups Disagree On Ending Chevron Deference

Two amicus briefs filed in advance of last month's U.S. Supreme Court oral arguments in Loper Bright Enterprises v. Raimondo highlight contrasting views on whether the doctrine of Chevron deference promotes or undermines the stable regulatory environment that businesses require, say Wyatt Kendall and Sydney Brogden at Morris Manning.


Key Lessons After A Rare R&W Insurance Ruling

The recent New York state court decision in Novolex Holdings v. Illinois Union Insurance is noteworthy as one of the rare judicial opinions arising in the context of representations and warranties insurance, serving to remind parties entering into R&W Insurance policies that they may not be immune from some doctrines unfavorable to insurers, say attorneys at Kramer Levin.


Del. Ruling Stands Out In Thorny Noncompete Landscape

In Cantor Fitzgerald v. Ainslie, the Delaware Supreme Court last month upheld the enforceability of forfeiture-for-competition provisions in limited partnership agreements, providing a noteworthy opinion amid a time of increasing disfavor toward noncompetes and following a string of Chancery Court rulings deeming them unreasonable, say Margaret Butler and Steven Goldberg at BakerHostetler.


Class Actions At The Circuit Courts: February Lessons

In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses five notable circuit court decisions on topics from property taxes to veteran's rights — and provides key takeaways for counsel on issues including class representative intervention, wage-and-hour dispute evidence and ascertainability requirements.


Google Patent Case Is A Claim Construction Litigation Lesson

The Federal Circuit's recent precedential decision in Google v. EcoFactor, which held that the Patent Trial and Appeal Board erred in the claim construction it had unknowingly adopted, shows that litigators should be alert to claim construction issues that masquerade as something else, says Roy Wepner at Kaplan Breyer.


US-Chile Tax Treaty May Encourage Cross-Border Investors

Provisions in the recently effective U.S.-Chile bilateral income tax treaty should encourage business between the two countries, as they reduce U.S. withholding tax on investment income for Chilean taxpayers, exempt certain U.S. taxpayers from Chilean capital gains tax, and clarify U.S. foreign tax credit rules, say attorneys at Kramer Levin.


SEC Regs Give Banks Chance To Step Up Cyber Safety Game

Just as the Sarbanes-Oxley Act forced financial institutions to undertake best practices in recordkeeping, the U.S. Securities and Exchange Commission’s recently effective cybersecurity regulations stand to similarly drive those same enterprises to seek out and implement best practices in cybersecurity, to everyone's benefit, says James Gerber at SimSpace.


A Look Ahead For The Electric Vehicle Charging Industry

This will likely be an eventful year for the electric vehicle market as government efforts to accelerate their adoption inevitably clash with backlash from supporters of the petroleum industry, say Rue Phillips at SkillFusion and Enid Joffe at Green Paradigm Consulting.


A Refresher On Witness Testimony In 3 Key Settings

The recent controversy over congressional testimony from university presidents about antisemitism on campus serves as a reminder to attorneys about what to emphasize and avoid when preparing witnesses to testify before Congress, and how this venue differs from grand jury and trial proceedings, say Jack Sharman and Tyler Yarbrough at Lightfoot Franklin.


A Post-Mortem Analysis Of Stroock's Demise

After the dissolution of 147-year-old firm Stroock late last year shook up the legal world, a post-mortem analysis of the data reveals a long list of warning signs preceding the firm’s collapse — and provides some insight into how other firms might avoid the same disastrous fate, says Craig Savitzky at Leopard Solutions.


How DOD Can Improve Flexibility Under Proposed Cyber Rule

The U.S. Department of Defense should carefully address some of the more nuanced aspects of the Cybersecurity Maturity Model Certification program to avoid unintended consequences, specifically the proposal to severely limit contractor use of plans of actions and milestones, say Joshua Duvall at Maynard Nexsen and Sandeep Kathuria at L3Harris Technologies.


Reassessing Trade Secrets Amid Proposed Noncompete Ban

The Federal Trade Commission's proposed ban on noncompete agreements as well as state bans make it prudent for businesses to reevaluate and reinvigorate approaches to trade secret protection, including knowing what information employees are providing to vendors, and making sure confidentiality agreements are put in place before information is shared, says Rob Jensen at Wolf Greenfield.


Predicting DeFi Regulations At Home And Abroad In 2024

Though decentralized finance has advocates on both sides of the Atlantic in figures like U.S. SEC Commissioner Hester Peirce and U.K. Prime Minister Rishi Sunak, DeFi in 2024 seems likely to be folded into existing regulatory frameworks in the U.K. and EU, while anti-crypto scrutiny may discourage DeFi’s growth in the U.S., say Daniel Csefalvay and Eric Martin at BCLP.


Mitigating The Risk Of Post-Closing M&A Earnout Disputes

Today's uncertain deal environment makes a well-crafted earnout an excellent way for parties to accomplish a desired transaction that would not otherwise occur, but transacting parties also need to take key steps to avoid the risk of post-closing disputes that earnouts can present, say Chad Barton and Claire Lydiard at Holland & Knight.


NYC Cos. Must Prepare For Increased Sick Leave Liability

A recent amendment to New York City's sick leave law authorizes employees for the first time to sue their employers for violations — so employers should ensure their policies and practices are compliant now to avoid the crosshairs of litigation once the law takes effect in March, says Melissa Camire at Fisher Phillips.


Retailers Must Be Mindful Of Sale Ads As Class Actions Rise

A recent uptick in class actions filed against retailers over a breadth of allegedly deceptive pricing practices — including misleading reference prices for sales and discounts offered on a perpetual basis — show no sign of slowing down, indicating that class counsel are laser-focused on challenging advertising strategies, say Louis DiLorenzo and Paavana Kumar at Davis+Gilbert.



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Special Series


Prosecutor Pointers

As new trends enter the courtroom, this Expert Analysis series features prosecutors' practice tips — some time-tested, some newly updated — for every stage of the jury trial, from voir dire to closing statements.




ESG Around The World

While ESG investing has recently become one of the most controversial policymaking issues in the U.S., in this Expert Analysis series, attorneys across the globe tell us about the state of ESG in each of their countries or regions.




Opinion


Biden Admin's March-In Plan Would Hurt Medical Innovation

The Biden administration's proposal to reinterpret the Bayh-Dole Act and allow the government to claw back patents when it determines that a commercialized product's price is too high would discourage private investment in important research and development, says Ken Thorpe at the Rollins School of Public Health.

Oregon Law Would Compromise Management Service Orgs

If passed, a proposed Oregon law would materially limit physician corporate practice of medicine structures, causing significant disruption to the provision of medicine and hindering professional corporations' ability to focus on the clinical components of their practice, say Christina Bergeron and William Shefelman at Ropes & Gray.



Access to Justice Perspectives


911 Call Scrutiny Should Not Be Used To Identify Suspects

Though the use of 911 call analysis to identify suspects continues to spread across the country, this scientifically unproven method opens the door to wrongful convictions, so prosecutors should review investigations that relied on the technique, and lawmakers should ban it nationwide, say Miriam Krinsky at Fair and Just Prosecution and Isabelle Cohn at the Innocence Project.





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