Expert Analysis


After Chevron: Bid Protest Litigation Will Hold Steady For Now

Though the substantive holding of Loper Bright is unlikely to affect bid protests because questions of statutory interpretation are rare, the spirit of the U.S. Supreme Court's decision may signal a general trend away from agency deference even on the complex technical issues that often arise, say Kayleigh Scalzo and Andrew Guy at Covington.

Expect CFPB To Enforce Warning Against 'Coercive' Fine Print

The recent Consumer Financial Protection Bureau warning against unenforceable terms "deceptively" slipped into the fine print of contracts will likely be challenged in court, but until then, companies should expect the agency to treat its guidance as law and must carefully scrutinize their consumer contracts, say attorneys at Ballard Spahr.

Dueling Calif. Rulings Offer Insight On 401(k) Forfeiture Suits

Two recent decisions from California federal courts regarding novel Employee Retirement Income Security Act claims around 401(k) forfeitures provide early tea leaves for companies that may face similar litigation, offering reasons for both optimism and concern over the future direction of the law, say Ashley Johnson and Jennafer Tryck at Gibson Dunn.

Challenging Prosecutors' Use Of Defendants' Jail Phone Calls

Although it’s an uphill battle under current case law, counsel for pretrial detainees may be able to challenge prosecutors’ use of jail-recorded phone calls between the defendant and their attorney by taking certain advance measures, say Jim McLoughlin and Fielding Huseth at Moore & Van Allen.

How NJ Worker Status Ruling Benefits Real Estate Industry

In Kennedy v. Weichert, the New Jersey Supreme Court recently said a real estate agent’s employment contract would supersede the usual ABC test analysis to determine his classification as an independent contractor, preserving operational flexibility for the industry — and potentially others, say Jason Finkelstein and Dalila Haden at Cole Schotz.

3 Policyholder Tips After Calif. Ruling Denying D&O Coverage

A California decision from June, Practice Fusion v. Freedom Specialty Insurance, denying a company's claim seeking reimbursement under a directors and officers insurance policy for its settlement with the Justice Department, highlights the importance of coordinating coverage for all operational risks and the danger of broad exclusionary policy language, says Geoffrey Fehling at Hunton.

1 Year At The UPC: Implications For Transatlantic Disputes

In its first year, the Unified Patent Court has issued important decisions on procedures like provisional measures, but complexities remain when it comes to coordinating proceedings across jurisdictions like the U.S. due to differences in timelines and discovery practices, say attorneys at McDermott.

Patent Ruling Shows A Minor Typo Can Lead To A Major Loss

A federal court’s recent ruling in SIPCO v. Jasco, where patent infringement claims were dismissed because of a typo made during prosecution, highlights key moments in the terminal disclaimer application process where double-checking the patent number is especially crucial, say attorneys at Mintz.

Loss Causation Ruling Departs From Usual Securities Cases

A California federal court recently dismissed Ramos v. Comerica, finding that the allegations failed to establish loss causation, but the reasoning is in tension with the pleading-stage approaches generally followed by both courts and economists in securities fraud litigation, say Jesse Jensen and Aasiya Glover at Bernstein Litowitz.

PAGA Reforms Encourage Proactive Employer Compliance

Recently enacted reforms to California's Private Attorneys General Act should make litigation under the law less burdensome for employers, presenting a valuable opportunity to streamline compliance and reduce litigation risks by proactively addressing many of the issues that have historically attracted PAGA claims, say attorneys at Mintz.

A Simple Proposal For Improving E-Discovery In MDLs

Given the importance of e-discovery in multidistrict litigation, courts, parties and counsel shouldn't have to reinvent the wheel in each newly consolidated case — and a simple process for sharing e-discovery lessons and knowledge across MDLs could benefit everyone involved, particularly clients, say Benjamin Barnett and Shauna Itri at Seeger Weiss.

Playing The Odds: Probing Sports-Betting Allegations

With gambling-related controversies becoming a mainstay of the athletics landscape, it's essential for in-house and outside counsel to stay abreast of best practices for conducting sports betting investigations, say attorneys at Steptoe.


After Chevron: Piercing FEMA Authority Is Not Insurmountable

While the Federal Emergency Management Agency's discretionary authority continues to provide significant protection from claims under the Administrative Procedure Act, Loper Bright is a blow to the argument that Congress gave FEMA unfettered discretion to administer its own programs, says Wendy Huff Ellard at Baker Donelson.

What Happens After Hawaii Kids' Historic Climate Deal

Implications of the Hawaii Department of Transportation's first-of-its-kind settlement with youth plaintiffs over constitutional climate claims may be limited, but it could incite similar claims, says J. Michael Showalter and Robert Middleton at ArentFox Schiff.

How Tech Trackers May Implicate HIPAA After Hospital Ruling

A recent Texas federal court order in American Hospital Association v. Becerra adds a legal protection on key data, clarifying when tracking technologies implicate the Health Insurance Portability and Accountability Act, so organizations should ensure all technology used is known and accounted for, say John Howard and Myriah Jaworski at Clark Hill.

Leveling Up IP Protections For Video Game Icons' Film Debuts

Video game creators venturing into new realms of entertainment that include their iconic characters, such as television and film adaptations, should take specific steps to strengthen their intellectual property rights, say Joshua Weigensberg and Parmida Enkeshafi at Pryor Cashman.

A Look At State AGs Supermarket Antitrust Enforcement Push

The ongoing antitrust intervention by state attorneys general in the proposed Kroger and Albertsons merger suggests that states are straying from a Federal Trade Commission follow-on strategy in the supermarket space, which involved joining federal investigations or lawsuits and settling for the same divestment remedies, say attorneys at Troutman Pepper.

The Show Must Go On: Noncompete Uncertainty In Film, TV

The Federal Trade Commission has taken action to ban noncompetes while the entertainment industry is in the midst of a massive shift away from traditional media, so it is important for studio heads and content owners alike to understand the fate of the rule and their options going forward, say Christopher Chatham and Douglas Smith at Manatt.

A Refresher On Calculating Political Advertising Costs

With election season well underway, it is important for broadcasters, political candidates, time buyers and others concerned with how the cost of broadcast political advertising is determined to know what the Federal Communications Commission factors into lowest unit calculations, and how the commission has defined "commercial advertisers," says Gregg Skall at Telecommunications Law Professionals.

What FTX Case Taught Us About Digital Asset Recoverability

FTX's Chapter 11 plan has drawn lots of attention, but the focus should be on the anticipated outcome for investors, which counters several myths about digital currencies, innovation and recoverability, says Kyla Curley at StoneTurn.

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Special Series

My Hobby Makes Me A Better Lawyer

Attorneys discuss how their unusual extracurricular activities enhance professional development, providing insights and pointers that translate to the office, courtroom and beyond.

After Chevron

Following the U.S. Supreme Court's overturning of the Chevron precedent that favored federal agencies' rulemaking interpretations, attorneys in this Expert Analysis series discuss the decision's likely impact across practice areas.


A Way Forward For The US Steel-Nippon Deal And Union Jobs

Parties involved in Nippon Steel's acquisition of U.S. Steel should trust the Pennsylvania federal court overseeing a key environmental settlement to supervise a way of including future union jobs and cleaner air for the city of Pittsburgh as part of a transparent business marriage, says retired judge Susan Braden.

H-2 Visas Offer Humane, Economic Solution To Border Crisis

Congress should leverage the H-2 agricultural and temporary worker visa programs to match qualified migrants with employers facing shortages of workers — a nonpolitical solution to a highly divisive humanitarian issue, say Ashley Dees and Jeffrey Joseph at BAL.

Access to Justice Perspectives

High Court Ruling Leaves Chance For Civil Forfeiture Reform

Though advocates for civil forfeiture reform did not prevail in Culley v. Marshall last month, concerns voiced by a majority of the U.S. Supreme Court justices potentially leave the door open to consider stricter limits in future cases, say attorneys at Dykema.

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