Expert Analysis

• SEC Report Puts Climate Investor Coalitions On Notice

  

  The U.S. Securities and Exchange Commission's recent report on its investigation of Climate Action 100+ members' conduct in connection with the 2021 ExxonMobil proxy contest sends a clear warning that coordinated engagement by investors, even through an intermediary, could create a reportable group that jeopardizes passive investor status, say attorneys at Cleary.

• EEOC Hospitality Suits Offer Workplace Investigation Lessons

  

  Several recent sexual harassment and retaliation settlements with the U.S. Equal Employment Opportunity Commission demonstrate that hospitality employers will face significant exposure if they conduct deficient investigations or retaliate against complainants, so they should properly intake concerns, maintain documentation, close out the investigation and follow up appropriately, say attorneys at Ogletree.

• Contract Disputes Recap: Defaults And Incorporation

  

  Three recent decisions from the Armed Services Board of Contract Appeals and the U.S. Court of Federal Claims offer reminders about establishing default terminations and incorporating contractor proposed terms by reference, says Ken Kanzawa at Seyfarth.

• AmEx Consent Orders Highlight AML Enforcement Priorities

  

  The Office of the Comptroller of the Currency's and Federal Reserve's recent consent orders against American Express signal both a broader focus on accountability and remediation, and that material anti-money laundering failures, particularly around deficient transaction monitoring and suspicious activity reporting, remain capable of producing substantial monetary penalties, say attorneys at Haynes Boone.

• Opinion

  NY Must Limit Interlocutory Appeals

  

  The New York Legislature should act to reduce the Appellate Division's outsize caseload of interlocutory civil appeals in order to develop a faster, less expensive, fairer and more coherent civil justice system, says New York Supreme Court Justice Gerald Lebovits.

• New Mexico PFAS Labeling Injunction Leaves Reporting Intact

  

  After a New Mexico federal court's ruling enjoining enforcement of the state's requirement for labels on products containing perfluoroalkyl and polyfluoroalkyl substances, businesses need to distinguish the suspended labeling mandate from the compliance obligations that remain in place, say attorneys at Gordon Rees.

• 8 Ways To Prep For Calif. Fair Mortgage Lending Exams

  

  California financial institutions face a new fair lending examination framework in January that adds formal reviews for certain banks and makes violating applicable mortgage nondiscrimination laws independently enforceable under California banking statutes, say attorneys at Alston & Bird.

• Opinion

  Large Meta Penalties Shouldn't Shape State AG Playbook

  

  Meta Platforms' $17.1 billion settlement in California federal court and two New Mexico verdicts against the company resulting in large penalties are drawing renewed attention to the question of how state attorneys general should calculate civil penalties, but regulators and companies should treat the decisions as outliers, not a template, say attorneys at Troutman.

• SEC's History Undercuts Its 'Back To Basics' Rationale

  

  The current U.S. Securities and Exchange Commission's enforcement recalibration prioritizing fraud over technical violations has led to a drastic decline in enforcement activity, but the philosophy deviates from decades of enforcement that has always promoted compliance with its prophylactic requirements, says Gerald Hodgkins at Covington.

• DOJ's Deloitte, Lockheed DEI Deals Stress Whistleblower Role

  

  The U.S. Department of Justice's recent settlements with Deloitte and Lockheed Martin over their diversity, equity and inclusion practices, launched by private whistleblowers, demonstrate to government contractors that federal enforcement can start from within, say attorneys at Hinckley Allen.

• What The 11th Circ.'s Qui Tam Ruling Left Unanswered

  

  Although the Eleventh Circuit’s recent ruling in Zafirov v. Florida Medical Associates upheld the False Claims Act’s qui tam provisions under the appointments clause, its narrow reasoning leaves unresolved questions about presidential control over relator litigation that could sustain further constitutional challenges, says Taylor Chenery at Bass Berry.

• Planning Personal Phone Collections Before Discovery Begins

  

  For counsel planning a personal phone collection as part of the litigation discovery process, it's important to take early steps to ensure that necessary information will be obtained without exposing unrelated information or running into access issues, says Jeremy Horowitz at MARA Forensics.

• 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.

• 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.

• How NYC Consumer Bill Could Expand Private Claims

  

  New York City's proposed Power Act could expose companies to sweeping private claims under its prohibition on unfair, deceptive, and abusive acts and practices, making regulatory compliance reviews and litigation-risk planning essential for businesses serving city residents, says Brian Turetsky at Hinshaw.