Expert Analysis


Justices Mull Sex-Based Classification In Trans Law Case

After the U.S. Supreme Court heard oral argument in U.S. v. Skrmetti this week, it appears that the fate of the Tennessee law at the center of the case — a law banning gender-affirming healthcare for transgender adolescents — will hinge on whether the majority read the statute as imposing a sex-based classification, says Alexandra Crandall at Dickinson Wright.


Permitting, Offtake Among Offshore Wind Challenges In 2024

Although federal offshore wind development started to pick up this year, many challenges to the industry became apparent as well — including slow federal permitting, the pitfalls of restarting permits after changes in project status, and the difficulties of negotiating economically viable offtake agreements, say attorneys at Liskow & Lewis.


Tracking The Uncertainty Of The FTC's Negative Option Rule

The fate of the Federal Trade Commission's final rule requiring businesses that utilize negative options to provide consumers with a simple cancellation method remains in limbo as it faces multiple legal challenges and the threat of possible congressional action looms, say attorneys at Manatt.


Corporate Liability Issues To Watch In High Court TM Case

The U.S. Supreme Court will hear arguments in a trademark dispute between Dewberry Group and Dewberry Engineers next week, presenting an opportunity for the court to drastically alter the fundamental approach to piercing the corporate veil, or adopt a more limited approach and preserve existing norms, say attorneys at Bracewell.


What Insurers Need To Know About OFAC's Expanded FAQs

The Office of Foreign Assets Control's recently expanded insurance FAQs clarify how OFAC views insurance policies in a number of specific circumstances involving sanctioned parties, and make plain that sanctions compliance is the responsibility of all participants in the insurance ecosystem, including underwriters, brokers and agents, say attorneys at Morgan Lewis.


Trending At The PTAB: Collateral Estoppel Continues Evolving

We are starting to see brighter lines on collateral estoppel involving Patent Trial and Appeal Board proceedings, illustrated by two recent cases that considered whether collateral estoppel should apply to factual findings on prior art from the PTAB in a later district court litigation, say attorneys at Finnegan.


Every Dog Has Its Sick Day: Inside NYC's Pet Leave Bill

In what would be a first-of-its-kind law for a major metropolitan area, a recent proposal would amend New York City's Earned Safe and Sick Time Act to include animal care as an accepted use of sick leave — and employers may not think it's the cat's meow, say attorneys at Morrison Cohen.


Plugging Gov't Leaks Is Challenging, But Not A Pipe Dream

As shown by ongoing legal battles involving New York City Mayor Eric Adams and Sean “Diddy” Combs, it’s challenging for defendants to obtain relief when they believe the government leaked sensitive information to the media, but defense counsel can take certain steps to mitigate the harm, says Kenneth Notter at MoloLamken.


Rethinking Clawback Policies For 2025 Compensation Season

The start of a new year presents an opportunity for companies to reassess their executive compensation clawback policies, and while mandatory Dodd-Frank clawbacks are necessary, discretionary policies can offer companies greater flexibility to address misconduct, protect their reputations and align with shareholder priorities, say attorneys at Debevoise.


Antitrust in Retail: Handbag Ruling Won't Go Out Of Fashion

Although a New York federal court’s recent decision to enjoin a proposed $8.5 billion merger between the owners of Michael Kors and Coach applied noncontroversial antitrust interpretations, several notable aspects of the opinion stand out as likely candidates for further discussion in future merger litigation, say attorneys at Holland & Knight.


Series

Gardening Makes Me A Better Lawyer

Beyond its practical and therapeutic benefits, gardening has bolstered important attributes that also apply to my litigation practice, including persistence, patience, grit and authenticity, says Christopher Viceconte at Gibbons.


Nevada Justices Could Expand Scope Of Subrogation Claims

The Nevada Supreme Court's recent decision to hear North River Insurance v. James River Insurance could expand the scope of equitable subrogation claims in the state by aligning with the California standard, which doesn't require excess insurers to demonstrate damages, says Daniel Heidtke at Duane Morris.


Federal Embrace Of Crypto Regs Won't Lower State Hurdles

Even if the incoming presidential administration and next Congress focus on creating clearer federal regulatory frameworks for the cryptocurrency sector, companies bringing digital asset products and services to the market will still face significant state-level barriers, say attorneys at Mayer Brown.


And Now A Word From The Panel: Ballpark Lessons For MDLs

The baseball offseason has provided some time to ponder how multidistrict litigation life resembles the national pastime, including with respect to home-field advantage, major television markets and setting records, says Alan Rothman at Sidley.


SEC Prioritized Enforcement Sweeps As Cases Slowed In '24

Following three consecutive years of increasing activity, fiscal year 2024 marked the lowest number of cases the U.S. Securities and Exchange Commission has brought since Gary Gensler assumed office in April 2021, buttressed by some familiar enforcement sweeps, say attorneys at Covington.


Takeaways From DOJ's Intervention On Pricing Algorithm Use

A recent U.S. Justice Department amicus brief arguing that a Nevada federal judge wrongly focused on the nonbinding aspect of software company Cendyn Group's pricing algorithm underscores the growing challenge of determining when, if ever, pricing algorithms are legal, say attorneys at Rule Garza.


How Trump's 2nd Term May Alter The Immigration Landscape

Rhetoric from Donald Trump's campaign and his choice of hardline appointees indicate that a more restrictive and punitive approach to immigration is in our immediate future, especially in areas like humanitarian relief, nonimmigrant visa processing, and travel and green card eligibility, says John Quill at Mintz.


What New Calif. Law Means For Cannabis Lounges

With a recently enacted California law authorizing licensed cannabis retailers and microbusinesses to prepare and sell noncannabis food and beverages, the door opens for a more sustainable business model — but challenges related to costs and liability remain, says Tracy Gallegos at Duane Morris.


Equitable Mootness Insights From Greenlit Ch. 11 Plan Appeal

A Texas federal court recently allowed a challenge to ConvergeOne's Chapter 11 bankruptcy plan to proceed because it wouldn't disrupt the IT company's confirmed plan or harm creditors, reinforcing the importance of judicial restraint in applying equitable mootness where limited relief is possible, say attorneys at Parkins & Rubio.


ERISA Ruling Is A Win For DOL Regulatory Authority

In Rappaport v. Guardian Life Insurance, a New York federal court recently issued a notable disability benefits ruling in finding that the U.S. Supreme Court’s Loper Bright opinion does not affect how existing U.S. Department of Labor regulations apply in Employee Retirement Income Security Act litigation, says Mark DeBofsky at DeBofsky Law.



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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

Since the U.S. Supreme Court overturned the Chevron deference standard in June, this Expert Analysis series has featured attorneys discussing the potential impact across 36 different rulemaking and litigation areas.




Opinion


FTC Actions In Oil Cases Go Against Its Own Rulemaking

Two recent Federal Trade Commission actions concerning the oil and gas industry appear to defy its own merger guidelines, with allegations that fall far short of the commission's own standard — raising serious questions about the agency's current approach, say attorneys at Clifford Chance.

Justices Should Squash Bid To Criminalize Contract Breaches

In Kousisis v. U.S., the U.S. Supreme Court should reject the sweeping legal theory that breaches of contract can satisfy the property element of the mail and wire fraud statutes, which, if validated, would criminalize an array of ordinary conduct and violate basic constitutional principles, say attorneys at The Norton Law Firm.



Access to Justice Perspectives


2 Ways To Boost Court Flexibility, Improve Appearance Rates

Millions of people miss their court dates every year, leading to arrest warrants and snowballing consequences, but allowing for flexible scheduling and offering grace periods can promote appearance rates, improve court efficiency, and increase access to justice, say Shannon McAuliffe and Cameron French at ideas42.





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