Expert Analysis

• 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.

• Character.AI Ch. 11 Tests New Model For Preserving AI Value

  

  Character.AI's bankruptcy is charting a path for preserving value in an artificial intelligence business that depends on retaining unfinished technology and the employees who know how to develop it, while accounting for the firm's failure and its consequences for creditors, says Diane Dick at University of Iowa College of Law.

• Meta, TikTok Cases Show How AGs May Redefine Governance

  The Meta Platforms settlement and TikTok lawsuit addressing social media harms to minors highlight that state attorneys general are not merely extracting payments, but are also using litigation and settlements to impose durable product, institutional and policy change, say attorneys at Snell & Wilmer.

• NLRB Ruling Redraws Arbitration Confidentiality Limits

  

  The National Labor Relations Board's recent decision in Ralphs Grocery adds to a growing body of board precedent that offers takeaways for how employers can maximize the enforceability of confidentiality restrictions and discovery procedures in arbitration agreements, say attorneys at Morgan Lewis.

• 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.

• DOE Energy Efficiency Rollbacks Portend Clashes With States

  

  With the U.S. Department of Energy proposing rollbacks of energy efficiency regulations for numerous appliance types, backstop provisions in many states could come into play to preserve existing standards — but disputes over antibacksliding provisions in federal law and the limits of preemption mean court battles are likely, say attorneys at HWG.

• Health Plan Sponsors Must Inspect 3rd-Party Admin Payments

  

  A newly filed class action against Cigna spotlights issues surrounding how self-funded group health plan fiduciaries pay their third-party administrators, and the outcome could shape what plan sponsors are expected to know about such compensation structures, say attorneys at Thompson Hine.

• 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.

• 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.

• What 3 Cases Reveal About Solar Co. Financial Disclosures

  

  Three recent securities suits involving Nextracker, SolarEdge and Enphase illustrate the challenges of evaluating financial representations in the solar industry, raising a common issue: Financial projections cannot be fully understood without examining the operating information and assumptions supporting them, says Rand Manasse at Green Lane Partners.

• 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.

• What To Expect From Calif.'s Incoming Health AI Laws

  

  California's new statewide ground rules for artificial intelligence in clinical care, set to take effect on Jan. 1, reveal the Legislature's choice to regulate healthcare AI primarily though institutions, rather than direct product regulation, and providers should shape their compliance plans accordingly, say attorneys at Reed Smith.

• Opinion

  The Invisible AI Danger That May Undermine Legal Profession

  

  A public database tracking cases involving hallucinations generated by artificial intelligence recently surpassed 2,200 entries, but the bigger risk underlying attorneys’ use of such tools is that they will slowly surrender their judgment to AI and lose analytical skills, says Massachusetts District Court Associate Justice Brian Palmucci.

• Full Policy Payment May Not Bar Insurer Bad Faith In 9th Circ.

  

  Establishing that an insurer acted within its contractual rights likely disposes of a breach-of-contract claim, however, following the Ninth Circuit's recent ruling in Quilbillies v. First American Title Insurance, the same showing may not dispose of bad faith, says Tracy Garcia at Cozen O'Connor.

• How Cos. Using AI Agents Can Avoid Protected Data Incidents

  

  For businesses whose deployed artificial intelligence agents could enter other companies' systems and steal protected data, deployers can take several steps before an incident to test the configured agent, such as limiting it to approved systems and destinations and requiring human escalation when tasks stall, says Steven Carlson at von Briesen & Roper.