Expert Analysis

• Contradictory Rulings Show Complexity Of Swaps Regulation

  

  Recent divergent rulings, including two by the same Nevada judge, on whether the Commodity Exchange Act preempts state gambling laws when applied to event contracts traded on U.S. Commodity Futures Trading Commission-regulated markets illustrate the uncertainty regarding the legality of prediction markets, say attorneys at Akin.

• How New Law Transforms Large-Load Power Projects In Texas

  

  S.B. 6 — the new Texas law that revises state regulations for large electrical loads and related behind-the-meter projects — introduces higher up-front costs for developers and more flexible operating models for large-load customers, but should provide the certainty needed for greater investment in generation, say attorneys at Sidley.

• How Cos. Should Prepare For Prop 65 Listing Of Bisphenols

  

  California regulators are moving toward classifying all p,p'-bisphenol chemicals as causing reproductive toxicity under Proposition 65, which could require warning notices for a vast range of consumer and industrial products, and open the floodgates to private litigation — so companies should proactively review their suppy chains, says Gregory Berlin at Alston & Bird.

• 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.

• When Mortgage Data Can't Prove Discriminatory Lending

  

  As plaintiffs continue to use Home Mortgage Disclosure Act data as grounds for class actions, attorneys must consider the limits of a statistics-only approach and the need for manual loan file review to confirm indications of potential discriminatory lending, say Abe Chernin, Shane Oka and Kevin Oswald at Cornerstone Research.

• NLRB Memo Shifts Tone On Defenses Against Union 'Salting'

  

  The current Starbucks strike demonstrates the potential effects of salting, in which applicants seek employment in order to organize a union, and recent guidance from the National Labor Relations Board suggests that previously rejected employer defenses may now gain traction, says Daniel Johns at Cozen O'Connor.

• Evaluating Nasdaq Tokenization Rule's Potential Impact

  

  Nasdaq's recently proposed rule would enable settlement of tokenized equity securities and exchange-traded products using blockchain technology, which could lead to dramatic improvements in market efficiency, settlement speed and market access, but prudent skepticism about timelines and implementation capabilities is warranted, says James Brady at Katten.

• FDA Biosimilar Guidance Should Ease Biologics Development

  

  New draft guidance from the U.S. Food and Drug Administration, indicating that the agency may no longer routinely require comparative efficacy studies when other evidence provides sufficient assurance of biosimilarity, underscores the FDA's trust in analytical technology as a driver of biologics access, say attorneys at Hogan Lovells.

• Preparing For Treasury's Small Biz Certification Audits

  

  To prepare for the U.S. Department of the Treasury’s recently announced audit of small and disadvantaged government contractors, companies should assess the records that supported their prior certifications and confirm their current eligibility, particularly if they share ownership with another entity or were recently acquired, say attorneys at Morgan Lewis.

• Navigating Sanctions Against Colombia's Head Of State

  

  To limit their exposure from recent sanctions that prohibit dealings with Colombia’s president and specific officials, it is critical that U.S. companies gain a fulsome understanding of potential touchpoints, establish controls to avoid engagement and, if necessary, seek U.S. government approval, say attorneys at Perkins Coie.

• 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.

• Ill. State Farm Suit Tests State Insurance Data Demand Limits

  

  The Illinois Department of Insurance's recently filed suit against State Farm, seeking nationwide data on its homeowners insurance, raises important issues as to the breadth, and possible overreach, of a state's regulatory authority, says Stephanie Pierce at Kutak Rock.

• How New FinCEN FAQs Simplify Suspicious Activity Reporting

  

  New guidance from the Financial Crimes Enforcement Network and federal banking agencies that gives financial institutions more flexibility in meeting suspicious activity reporting obligations indicates the administration is following through on its promise to streamline the U.S. anti-money laundering regime, say attorneys at Davis Polk.

• What Shutdown's End Means For Worker Safety Enforcement

  

  The Occupational Safety and Health Administration and Mine Safety and Health Administration may emerge from the government shutdown struggling to juggle complaint backlogs, litigation delays and newly enacted policies with a reduced and demoralized workforce, so employers should stay alert, say attorneys at Conn Maciel.