Expert Analysis

• 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.

• 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.

• SEC's 'Innovation Exemption' Isn't A Substitute For Legislation

  

  The U.S. Securities and Exchange Commission's recently announced innovation exemption, allowing trading in certain tokenized securities on permissioned on-chain trading platforms, is a temporary and conditional solution for a specific market model, not a general exemption for on-chain securities trading, says Niels Lemmers at Flow Traders.

• What Axing ERISA Exhaustion Rule Means For Plan Sponsors

  

  The Eleventh Circuit’s recent reversal of a 40-year precedent requiring plaintiffs to exhaust administrative remedies before filing statutory Employee Retirement Income Security Act claims eliminates a common threshold defense in fiduciary breach suits, making it important for plan sponsors to reassess their internal review and litigation strategies, say attorneys at Nelson Mullins.

• 10 Ways AI Labs Can Limit Antitrust Risks Of Safety Pacts

  

  The OpenAI CEO’s recent call for artificial intelligence laboratories to collectively slow development to allow safety research to catch up invites antitrust scrutiny, but the risks to coordinating competitors can be managed by carefully structuring pacing agreements and layering their approach to compliance, say attorneys at Holland & Knight.

• FINRA Disputes Highlight Timeliness In Arbitrator Bias Claims

  

  Recent Financial Industry Regulatory Authority litigation over arbitrator neutrality shows that the strength of challenges depends not only on what counsel discovers, but also on how early it is uncovered and how concretely it can be demonstrated, says Dax White at White Law.

• Opinion

  A Capital Markets Agenda For The New Congress

  

  When the 120th Congress convenes in January, it should place capital markets issues near the top of its to-do list, with a focus on legislation that can make the public company model more competitive, says David Kaufman at Thompson Coburn.

• FinCEN Scam Alerts Push Banks To Rethink AML Monitoring

  

  Recent Financial Crimes Enforcement Network guidance on digital asset scams suggests that future anti-money laundering examinations may focus less on whether institutions detect the movement of criminal proceeds and more on whether they can identify fraud schemes before victims suffer catastrophic losses, say attorneys at Ballard Spahr.

• How AI Could Help Judges Spot Their Own Biases

  

  In close cases where there’s room for discretion, artificial intelligence could challenge judges’ implicit biases by running counterfactual tests at scale — but any judicial use of such tools would need guardrails, say Arnold Peter at Peter Law and Nancy Rapoport at University of Nevada.

• Assessing Hidden Risk Of Administrative Agency Settlements

  

  Though administrative resolutions of U.S. Securities and Exchange Commission investigations may seem preferable to settled federal court actions, the possibility that private plaintiffs may use commission orders in follow-on litigation poses an extra risk, increasing the importance of negotiating the settlement's form and language, say attorneys at Debevoise.

• Parsing The Lowest SEC Enforcement Stats In Over A Decade

  

  Statistics show that the U.S. Securities and Exchange Commission brought a historically low number of enforcement actions during Paul Atkins' first full fiscal year as chairman, delivering on his promise to reduce enforcement in program areas focused on recordkeeping and other technical violations, say attorneys at Covington.

• Bid Protest Spotlight: Bait-And-Switch, Scope, Performance

  

  In this month's bid protest roundup, Michael Ols at MoFo offers takeaways from recent decisions examining bait-and-switch protest claims, the scope of a contractor teaming agreement and the use of an affiliate’s past performance.

• How '21 IPO Class Can Prep For 'Emerging Growth Co.' Sunset

  

  Five years after the initial public offering boom of 2020 and 2021 brought an unusually large number of companies into the U.S. public markets, many are set to lose their status as "emerging growth companies," so they should use the next two months to build a coordinated transition plan, say attorneys at Clark Hill.

• Midterm Elections Outlook For Financial Services

  

  A change in congressional control after the upcoming midterm elections could bring about slower regulatory approvals, intensified oversight and shifting enforcement priorities for the financial services industry, say attorneys at Covington.

• 3 Strategies To Reduce AI Sycophancy In Legal Work

  

  The tendency of generative artificial intelligence models to tell users what they want to hear can reinforce attorneys’ confirmation bias when testing the strength of arguments, and it can’t simply be prompted away — but a few practices can help mitigate it, says Michael Ott at Ice Miller.