Expert Analysis


Midyear Trends, Takeaways As Securities Class Actions Surge

High numbers of securities class actions through June suggest filings will stay elevated, with factors like changing enforcement attitudes, media scrutiny and the proliferation of potential defendants serving as both cause and effect in increased litigation involving AI-related disclosures, health and tech companies, and foreign issuers, say attorneys at Alston & Bird.


How To Approach Rising Foreign Direct Investment Hurdles

Attorneys advising on cross-border transactions need to take a practical but risk-aware approach as U.S.-led deals are encountering longer and more intrusive foreign direct investment reviews, say attorneys at Wilson Sonsini.


Other Transaction Authority May Change Military Construction

Early use of the Pentagon’s expanded authority to use other transaction agreements for defense construction projects suggests it may become a consequential change that draws new entrants into the marketplace, so participants should be cognizant of how it differs from the familiar Federal Acquisition Regulation model, say attorneys at Holland & Knight.


Fed. Circ.'s Thermostat Ruling Holds Patent Jury Trial Lessons

The Federal Circuit's recent decision in Ollnova v. Ecobee, throwing out a $11.5 million patent infringement award, clarifies key rules for jury verdict forms and sends an important message on patent subject matter eligibility, says Bijal Vakil at Skadden.


How Copa América Reshaped Crowd Security Risk Planning

Two years after crowds overwhelmed security at the Copa América Final in Florida, the host stadium's updated practices demonstrate a reassessment of the standard of reasonable care for large events, illustrating broader principles that attorneys, venue operators, municipalities, insurers and security professionals should consider, says Joshua Padron at Padron & Lopez-Trigo.


Mapping A Compliance Framework For AI Chatbot Operators

The Federal Trade Commission's recent artificial intelligence guidance, together with emerging state AI chatbot laws, wiretapping statutes and telecommunications requirements, carry significant implications for consumer-facing chatbot and customer service tool operators that require a layered disclosure framework addressing multiple regulatory touchpoints, say attorneys at Winston Taylor.


Fashion Greenwashing Risk Goes From Reputational To Legal

Fashion brands now face greenwashing risks that extend beyond reputational damage, with California's extended producer responsibility law taking effect soon, and regulatory enforcement and class actions increasing around terms like "sustainable" and "carbon-neutral" — so companies must ensure their marketing is backed up by evidence, says Benjamin Thompson at Thompson LLP.


Bank Charter Denial Offers Road Map For Stablecoin Issuers

The Office of the Comptroller of the Currency's recent denial of Wise's bank charter application signals that stablecoin issuers should expect rigorous scrutiny of anti-money laundering controls, governance, management expertise and affiliate compliance history when applying for federal approval, say attorneys at Katten.


3 Ways Policyholders Can Challenge AI Claims Handling

As artificial intelligence tools become increasingly embedded in insurance claims handling, policyholders in coverage litigation should seek discovery of AI training data as payout-optimizing software may bolster bad faith claims and insurers' AI-use parameters may run afoul of good faith precedent, say attorneys at Cohen Ziffer.


Trending Legal Implications Of Employee Influencer Programs

Employee-generated content is rapidly becoming a popular marketing strategy, as illustrated by Starbucks' new TikTok program, but it raises several legal risks for employers, including wage and hour exposure, federal disclosure obligations, and intellectual property concerns, say attorneys at Reed Smith.


Complying With Calif. Crypto License Law's 11th-Hour Rewrite

Financial businesses that applied early for the digital asset license now required in California should check their filings and compliance decisions against last-minute updates to the law and its rules, as overlooked changes could leave companies budgeting for nonexistent bonds, relying on an outdated exemption or racking up steep fines, say attorneys at Astraea Counsel.


5 IP Licensing Lessons From Fed. Circ. Asphalt Ruling

The Federal Circuit's recent decision in A.L.M. v. Zydex, concerning infringement of asphalt-related patents, clarifies what licensing terms are considered sufficiently exclusionary for constitutional standing, and provides helpful guidance for ensuring the enforceability of patent rights, say attorneys at Sterne Kessler.


3 Ways The SEC's Retail Fraud Reboot Raises The Bar

The U.S. Securities and Exchange Commission's recent revival of the retail fraud working group with an expanded mandate, scope and experienced senior leadership points to a stronger incarnation of the task force with concrete implications for firms managing retail-accessible alternative investments, say attorneys at Fried Frank.


What To Know As DOJ Antitrust Biz Review Letters Return

The revival of the U.S. Department of Justice Antitrust Division's business letter review program reflects a trend of engagement with the business community, but the program's value will depend on the government's response speed, depth of analysis and ability to provide meaningful practical guidance, say attorneys at MoFo.


Decoding Arbitral Disputes: Award Enforcement Is Just Step 1

In Qatar National Bank v. South Sudan and Bank of South Sudan, a D.C. federal court recently confirmed a $1 billion arbitral award, but the judgment itself remains only the entrance to the asset-recovery exercise, says Josep Galvez at 4-5 Gray's Inn Square.


Series

Going To Hardcore Shows Makes Me A Better Lawyer

While government contracts law and the hardcore scene may seem entirely unrelated, in my experience, both are about community, focus, being prepared for the unexpected and managing chaos, says Isaac Natter at Fluet.


Brace For Expanding Scrutiny Of Dark Patterns In Healthcare

Recent reporting and regulatory developments highlight growing concern surrounding so-called dark patterns in healthcare — user interface designs that improperly influence consumer decision-making — and represent an important evolution of how healthcare professionals should evaluate consent processes, say attorneys at Clark Hill.


9th Circ. Ruling Exposes A Flaw In Federal Trade Secrets Law

The Ninth Circuit's recent decision in Comet Technologies v. XP Power, addressing a difference between the federal Defend Trade Secrets Act and California's Uniform Trade Secrets Act, shows why the DTSA's requirement that claimed trade secrets not be readily ascertainable is inherently problematic, say attorneys at Buchalter.


How Data Broker Laws Are Reaching Consumer-Facing Cos.

As states, most recently New Jersey, expand the scope of data broker laws to cover some customer data sharing, consumer-facing companies should reassess advertising, vendor and partner arrangements to determine whether they trigger registration, contracting and governance obligations, says Sam Castic at Hintze Law.


How Axing SEC Trade-Through Rule Could Reshape Markets

The proposed elimination of a Securities and Exchange Commission rule that mandates a price benchmark for equity securities trades could allow blockchain-based trades to compete with legacy frameworks in registered markets, potentially serving as a test case for updated regulatory models, say Alex Zozos at Superstate, and Lewis Rinaudo Cohen and Edward Leaf at Cahill Gordon.



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Special Series


My Hobby Makes Me A Better Lawyer

From quilting to clowning to raising miniature livestock, attorneys share how their unusual extracurricular activities enhance professional development.




Judges On AI

Do artificial intelligence tools have any practical judicial applications? In this Expert Analysis series, state and federal judges explore potential use cases for AI in adjudication and beyond.




Opinion


Birthright Citizenship Dissents Belie Originalist Interpretation

The three dissents in the U.S. Supreme Court's recent birthright citizenship decision clashed with originalist readings of the Constitution, applying the 14th Amendment more narrowly than its drafters, and by applying contemporary and living document approaches to constitutional interpretation, says Ediberto Roman at Florida International University.

2nd Circ. Tylenol Ruling Misapplies Daubert Gatekeeping

The Second Circuit's recent ruling in Rutledge v. Walgreen Co., holding that a lower court should not have excluded experts alleging links between prenatal acetaminophen use and autism, threatens to swallow the Daubert standard by limiting courts' consideration of scientific consensus in assessing reliability of expert testimony, say attorneys at Benesch.



Access to Justice Perspectives


Justices Stand On Statutory Specifics In Cisco And Landor

With its June 23 decisions in Cisco Systems Inc. v. Doe and Landor v. Louisiana Department of Corrections and Public Safety, the U.S. Supreme Court doubled down on the critical point that the statute invoked in a federal claim must authorize a private lawsuit and the remedy sought, says Patrick Judd at Phelps Dunbar.