Expert Analysis

• 8th Circ. Decision Shipwrecks IRS On Shoals Of Loper Bright

  

  The Eighth Circuit’s recent decision invalidating transfer pricing regulations in 3M Co. v. Commissioner may be the most significant tax case implementing Loper Bright's rejection of agency deference as a judicial tool in statutory construction, says Edward Froelich at McDermott.

• Rule Amendments Pave Path For A Privilege Claim 'Offensive'

  

  Litigators should consider leveraging forthcoming amendments to the Federal Rules of Civil Procedure, which will require early negotiations of privilege-related discovery claims, by taking an offensive posture toward privilege logs at the outset of discovery, says David Ben-Meir at Ben-Meir Law.

• Series

  My Miniature Livestock Farm Makes Me A Better Lawyer

  

  Raising miniature livestock on my farm, where I am fully present with the animals, is an almost meditative time that allows me to return to work invigorated, ready to juggle numerous responsibilities and motivated to tackle hard issues in new ways, says Ted Kobus at BakerHostetler.

• Justices' Ruling Will Ease Foreign Arbitral Award Enforcement

  

  The U.S. Supreme Court's recent decision in Fuld v. Palestine Liberation Organization suggests that U.S. courts can constitutionally decide whether to recognize and enforce foreign arbitral awards in accordance with U.S. treaty obligations, regardless of the award debtor's connections to the U.S., says David Cinotti at Pashman Stein.

• Litigation Funding Could Create Ethics Issues For Attorneys

  

  A litigation investor’s recent complaint claiming a New York mass torts lawyer effectively ran a Ponzi scheme illustrates how litigation funding arrangements can subject attorneys to legal ethics dilemmas and potential liability, so engagement letters must have very clear terms, says Matthew Feinberg at Goldberg Segalla.

• How To Prepare If Justices Curb Gov't Contractor Immunity

  

  Given the very real possibility that the U.S. Supreme Court will determine in GEO v. Menocal that government contractors do not have collateral immunity, contractors should prepare by building the costs of potential litigation, from discovery through trial, into their contracts and considering other pathways to interlocutory appeals, says Lisa Himes at Rogers Joseph.

• What To Mull After 9th Circ. Ruling On NLRB Constitutionality

  

  The Ninth Circuit recently rejected three constitutional attacks on the National Labor Relations Board in NLRB v. North Mountain Foothills Apartments, leaving open a debate about what remedies the NLRB can award employees and creating a circuit split that could foretell a U.S. Supreme Court resolution, say attorneys at Proskauer.

• Class Actions At The Circuit Courts: November Lessons

  

  In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses five recent rulings and identifies practice tips from cases involving claims related to oil and gas royalty payments, consumer fraud, life insurance, automobile insurance, and securities violations.

• E-Discovery Quarterly: Recent Rulings On Dynamic Databases

  

  Several recent federal court decisions illustrate how parties continue to grapple with the discovery of data in dynamic databases, so counsel involved in these disputes must consider how structured data should be produced consistent with the requirements of the Federal Rules of Civil Procedure, say attorneys at Sidley.

• Comey Case Highlights Complex Speedy Trial Rights Calculus

  

  Former FBI Director James Comey’s decision to waive his Speedy Trial Act rights in the false statement prosecution against him serves as a reminder that the benefits of invoking these rights are usually outweighed by the risks of inadequate preparation, but it can be an effective strategy in the right case, says Sara Kropf at Kropf Moseley.

• Wash. Email Subject Line Ruling Puts Retailers On The Hook

  

  The Washington state Supreme Court's ruling in Brown v. Old Navy, finding that a state law prohibits misleading email subject lines, has opened the door to nationwide copycat litigation, introducing potential exposure measured not in thousands, but in millions or even billions of dollars for retailers, say attorneys at Benesch.

• Courts Stay Consistent In 'Period Of Restoration' Rulings

  

  Three recent rulings centering on the period of restoration in lost business income claims followed the same themes in interpreting this infrequently litigated, but highly consequential, provision of first-party property and time element insurance coverage, say attorneys at Zelle.

• Revisiting Jury Trial Right May Upend State Regulatory Power

  

  Justice Neil Gorsuch’s recent use of a denial of certiorari to call for the U.S. Supreme Court to revisit whether the Seventh Amendment jury trial right extends to states, building off last year's Jarkesy ruling, could foretell a profound change in state regulators' ability to enforce penalties against regulated companies, say attorneys at Sidley.

• Recent Rulings Show When PIPs Lead To Employer Liability

  

  Performance improvement plans may have earned their reputation as the last stop before termination, and while a PIP may be worth considering if its goals can be achieved within a reasonable time frame, several recent decisions underscore circumstances in which they may aggravate employer liability, says Noah Bunzl at Tarter Krinsky.

• Reel Justice: 'Roofman,' Modus Operandi Evidence And AI

  

  The recent film “Roofman,” which dramatizes the real-life string of burglaries committed by Jeffrey Manchester, illuminates the legal standards required to support modus operandi evidence — which may soon become complicated by the use of artificial intelligence in crime series detection, says Veronica Finkelstein at Wilmington University School of Law.