High Court's H-2A Case Could Reshape Agency Adjudication

The U.S. Supreme Court will hear arguments in a case that concerns whether the U.S. Department of Labor may fine an employer for violating employment conditions in the H-2A visa program, but its eventual decision could chart the course for in-house adjudication across a broad swath of the federal government, say attorneys at Holland & Knight.

Calif. Sex Harassment Cases Clarify Limits On EFAA Waivers

Two recent rulings in California confirm that the plaintiff's knowledge drives waiver analysis under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, underscoring that employers should build a strong evidentiary record and pick their battles, says Ellen Connelly Cohen at Call & Jensen.

2nd Circ. Ruling Limits Collection Beyond Restitution Terms

In a case involving a financial fraud conviction, the Second Circuit recently established a clear limit on the government's enforcement power under the Mandatory Victims Restitution Act while highlighting the importance of presenting an economic picture that accurately reflects the defendant's ability to pay at the time of sentencing, say attorneys at Lowenstein Sandler.

Criminal Discovery Practice Must Address Usability Problem

One of the more consequential practical problems in federal criminal defense is that the ability to deliver digital evidence has outpaced the ability of many defense teams to review it, but there are several potential solutions, says Patrick Garrity at Brad Bailey.

How Cos. Can Reassess Ad Tech After Wash. Pixel Use Ruling

The Washington Supreme Court's decision in Baker v. Seattle Children's Hospital, holding that the hospital website's use of Meta Pixel didn't violate the state’s privacy act, may provide a powerful defense against privacy claims, but shouldn’t be read as a blanket approval of advertising technologies, say attorneys at Duane Morris.

State Of Insurance: Q3 Notes From Illinois

In the past quarter, two Seventh Circuit rulings and an Illinois appellate decision applied state insurance law to issues ranging from the illusory coverage doctrine and an insured's right to independent counsel, to the time to commence uninsured motorist arbitration, says Matthew Fortin at BatesCarey.

Opinion

Judges Must Turn To Merits Earlier To Fix Civil Justice System

The U.S. justice system is long overdue for a cultural shift that encourages judges to engage with the merits of a case from the outset, which would help to cut through procedural complexities and deliver high-quality justice efficiently and at lower cost, says Steven Kayman at Rottenberg Lipman.

Enviro Marketing Lessons From NY Greenwashing Ruling

A New York state appeals court recently affirmed the dismissal of a New York City suit accusing BP, Exxon and Shell of corporate and product greenwashing, providing practical lessons for framing comparative environmental claims carefully by ensuring that environmental claims are accurate, properly qualified and presented in context, say attorneys at V&E.

Justices' Intel Ruling Could Aid 401(k) Alternative Asset Push

Following the U.S. Supreme Court's recent oral arguments in Anderson v. Intel, a decision favoring Intel over a prudence claim against fiduciaries based on underperformance by comparing two funds that aren't meaningfully similar would undercut the most common litigation theory against including alternative investments in 401(k) plans, say attorneys at Simpson Thacher.

FCRA Ruling Previews Future Business Transaction Litigation

The Ninth Circuit's overturning of a class verdict against CenturyLink is a win for businesses facing Fair Credit Reporting Act willfulness claims, but the question of when a consumer initiates a transaction remains unanswered, say attorneys at Thompson Hine.

How Cos. Should Prepare For Democratic Oversight

Companies should begin preparing now for a new, Democratic-majority Congress — understanding how the oversight landscape has changed in recent years and monitoring leadership elections, new rules and potential select committees, say attorneys at Wiley.

Opinion

Justices Must Protect Enforcement In DOL Fine Power Case

In deciding whether the U.S. Department of Labor’s in-house court has the power to decide monetary penalties arising from H-2A violations, the U.S. Supreme Court must preserve a practical route to relief for workers and a constitutional forum for employers to contest liability, say Michelle Dromgold-Sermen, Jessica Vasquez-Luna and Julissa Barrera at George Mason University.

Series

Open-Water Swimming Makes Me A Better Lawyer

Swimming long distances in open waters is not necessarily an escape from my intellectual property practice, but a complementary discipline that similarly rewards sustained attention, intellectual curiosity, resilience and the ability to pursue a distant objective without losing command of the immediate task, says Christina MacDougall at Morgan Lewis.

Conflicting Rulings Cloud NCAA Eligibility Rule

The NCAA's adoption of the five-to-five eligibility rule has resulted in a genuinely fractured landscape, with the qualification for members of the class of 2022 essentially dependent upon the location of the athlete and the institution rather than on the underlying facts of the case, says Andrew Hope at Buchanan Ingersoll.

A Lesson On How Courts Approach Impossible Patent Claims

The Federal Circuit's recent decision in Satius v. Samsung, concluding that a scientifically impossible patent claim lacks enablement, underscores important considerations when drafting patent claims with potentially incompatible alternatives, and highlights an uncommon strategy for attacking patent validity via claim construction, say attorneys at Buchanan Ingersoll.