Expert Analysis

• Series

  Writing Novels Makes Me A Better Lawyer

  

  Writing my debut novel taught me to appreciate the value of critique and to never give up, no matter how long or tedious the journey, providing me with valuable skills that I now emphasize in my practice, says Daniel Buzzetta at BakerHostetler.

• Trader Joe's Ruling Highlights Trademark Infringement Trends

  

  The Ninth Circuit's recent decision in Trader Joe's Co. v. Trader Joe's United explores the legal boundaries between a union's right to advocate for workers and the protection of a brand's intellectual property, and illustrates a growing trend of courts disfavoring early dismissal of trademark infringement claims in the context of expressive speech, say attorneys at Mitchell Silberberg.

• SDNY OpenAI Order Clarifies Preservation Standards For AI

  

  The Southern District of New York’s recent order in the OpenAI copyright infringement litigation, denying discovery of The New York Times' artificial intelligence technology use, clarifies that traditional preservation benchmarks apply to AI content, relieving organizations from using a “keep everything” approach, says Philip Favro at Favro Law.

• What 9th Circ.'s Rosenwald Ruling Means For Class Actions

  

  The Ninth Circuit's recent decision in Rosenwald v. Kimberly-Clark has important implications around the Class Action Fairness Act and traditional diversity jurisdiction — both for plaintiff-side and defense-side class action litigators — and deepens the circuit split concerning the use of judicial notice to establish diversity, says Grace Schmidt at DTO Law.

• What's At Stake In Justices' Merits Hearing Of FTC Firing

  

  In December, the U.S. Supreme Court will review President Donald Trump's firing of Democratic Federal Trade Commissioner Rebecca Slaughter, a decision that will implicate a 90-year-old precedent and, depending on its breadth, could have profound implications for presidential authority over independent agencies, say attorneys at Holland & Knight.

• Compliance Steps To Take As FCRA Enforcement Widens

  

  As the Fair Credit Reporting Act receives renewed focus from both federal and state enforcers, regulatory and litigation risk is most acute in several core areas, which companies can address by implementing purpose processes and quick remediation of consumer complaints, among other steps, say attorneys at Wiley.

• 4 Strategies To Ensure Courts Calculate Restitution Correctly

  

  Recent reversals of restitution orders across the federal appeals courts indicate that some lower courts are misapplying fundamental restitution principles, so defense attorneys should consider a few ways to vigilantly press these issues with the sentencing judge, says Wesley Gorman at Comber Miller.

• 11th Circ. Geico Ruling Underscores Bad Faith Test

  

  A recent ruling by the Eleventh Circuit highlighted that negligence is not the standard for a finding of bad faith and that the insurer can overcome a bad faith suit by being diligent in its investigation and settlement efforts, emphasizing the totality of the circumstances test, says Juan Garrido at Cozen O'Connor.

• Transource Ruling Affirms FERC's Grid Planning Authority

  

  The Third Circuit's recent decision in Transource Pennsylvania v. DeFrank, reversing a state agency's denial of an electric transmission facility permit, provides a check on states' ability to veto needed power projects, and is a resounding endorsement of the Federal Energy Regulatory Commission's regional transmission planning authority, say attorneys at Wilson Sonsini.

• In NY, Long COVID (Tolling) Still Applies

  

  A series of pandemic-era executive orders in New York tolling state statutes of limitations for 228 days mean that many causes of action that appear time-barred on their face may continue to apply, including in federal practice, for the foreseeable future, say attorneys at Sher Tremonte.

• Opinion

  Expert Reports Can't Replace Facts In Securities Fraud Cases

  

  The Ninth Circuit's 2023 decision in Nvidia v. Ohman Fonder — and the U.S. Supreme Court's punt on the case in 2024 — could invite the meritless securities litigation the Private Securities Litigation Reform Act was designed to prevent by substituting expert opinions for facts to substantiate complaint assertions, say attorneys at A&O Shearman.

• 3rd Circ. Ruling Forces A Shift In Employer CFAA Probes

  

  The Third Circuit's recent ruling in NRA Group v. Durenleau, finding that "unauthorized access" requires bypassing technical barriers rather than simply violating company policies, is forcing employers to recalibrate insider misconduct investigations and turn to contractual, trade secret and state-level claims, say attorneys at Sidley.

• Opinion

  High Court, Not A Single Justice, Should Decide On Recusal

  

  As public trust in the U.S. Supreme Court continues to decline, the court should adopt a collegial framework in which all justices decide questions of recusal together — a reform that respects both judicial independence and due process for litigants, say Michael Broyde at Emory University and Hayden Hall at the U.S. Bankruptcy Court for the District of Delaware.

• FTC's Consumer Finance Pivot Brings Industry Pros And Cons

  

  An active Federal Trade Commission against the backdrop of a leashed Consumer Financial Protection Bureau will be welcomed by most in the consumer finance industry, but the incremental expansion of the FTC's authority via enforcement actions remains a risk, say attorneys at Hudson Cook.

• Reel Justice: 'One Battle After Another' And The Limits Of Zeal

  

  The political thriller “One Battle After Another,” following a former revolutionary who became a recluse, offers a potent metaphor for attorneys on diligence and the ethical boundaries of zealous advocacy, says Veronica Finkelstein at Wilmington University School of Law.