Expert Analysis

• SDNY OpenAI Order Clarifies Preservation Standards For AI

  

  The Southern District of New York’s recent order in the OpenAI copyright infringement litigation, denying discovery of The New York Times' artificial intelligence technology use, clarifies that traditional preservation benchmarks apply to AI content, relieving organizations from using a “keep everything” approach, says Philip Favro at Favro Law.

• What 9th Circ.'s Rosenwald Ruling Means For Class Actions

  

  The Ninth Circuit's recent decision in Rosenwald v. Kimberly-Clark has important implications around the Class Action Fairness Act and traditional diversity jurisdiction — both for plaintiff-side and defense-side class action litigators — and deepens the circuit split concerning the use of judicial notice to establish diversity, says Grace Schmidt at DTO Law.

• Dropped Case Shows SEC Focus On Independent Directors

  

  The U.S. Securities and Exchange Commission's recent liquidity rule case against Pinnacle Advisors, despite its dismissal by the commission, serves as a reminder that the SEC expects directors to embrace their role as active, probing fiduciaries, says Dianne Descoteaux at MFDF.

• Cybersecurity Rule For DOD Contractors Creates New Risks

  

  A rule locking in the Cybersecurity Maturity Model Certification system for defense contractors increases False Claims Act and criminal enforcement risks by narrowing a key exemption and mandating affirmations of past compliance, which may discourage new companies from entering the defense contracting market, say attorneys at Haynes Boone.

• Compliance Steps To Take As FCRA Enforcement Widens

  

  As the Fair Credit Reporting Act receives renewed focus from both federal and state enforcers, regulatory and litigation risk is most acute in several core areas, which companies can address by implementing purpose processes and quick remediation of consumer complaints, among other steps, say attorneys at Wiley.

• Navigating The SEC's Evolving Foreign Private Issuer Regime

  

  As the U.S. Securities and Exchange Commission reevaluates foreign private issuer eligibility, FPIs face not only incremental compliance costs but also a potential reshaping of listing strategies, capital access, enforcement exposure and global regulatory coordination, potential unintended effects that deserve further exploration, say attorneys at Simpson Thacher.

• Opinion

  Expert Reports Can't Replace Facts In Securities Fraud Cases

  

  The Ninth Circuit's 2023 decision in Nvidia v. Ohman Fonder — and the U.S. Supreme Court's punt on the case in 2024 — could invite the meritless securities litigation the Private Securities Litigation Reform Act was designed to prevent by substituting expert opinions for facts to substantiate complaint assertions, say attorneys at A&O Shearman.

• Hermes Bags Antitrust Win That Clarifies Luxury Tying Claims

  

  A California federal court recently found that absent actual harm to competition in the market for ancillary products, Hermes may make access to the Birkin bag contingent on other purchases, establishing that selective sales tactics and scarcity do not automatically violate U.S. antitrust law, say attorneys at Holland & Knight.

• Opinion

  High Court, Not A Single Justice, Should Decide On Recusal

  

  As public trust in the U.S. Supreme Court continues to decline, the court should adopt a collegial framework in which all justices decide questions of recusal together — a reform that respects both judicial independence and due process for litigants, say Michael Broyde at Emory University and Hayden Hall at the U.S. Bankruptcy Court for the District of Delaware.

• FTC's Consumer Finance Pivot Brings Industry Pros And Cons

  

  An active Federal Trade Commission against the backdrop of a leashed Consumer Financial Protection Bureau will be welcomed by most in the consumer finance industry, but the incremental expansion of the FTC's authority via enforcement actions remains a risk, say attorneys at Hudson Cook.

• How A New BIS Rule Greatly Expands Export Restrictions

  

  The newly effective affiliates rule from the U.S. Department of Commerce's Bureau of Industry and Security restricts exports to foreign companies that are 50% or more owned by entities listed on the BIS entity list and the military end-user list — a major shift in U.S. export control enforcement, say attorneys at Simpson Thacher.

• Amazon Ruling Marks New Era Of Personal Liability For Execs

  

  A Washington federal court's recent decision in FTC v. Amazon extended personal liability to senior executives for design-driven violations of broad consumer protection statutes, signaling a fundamental shift in how consumer protection laws may be enforced against large public companies, say attorneys at Orrick.

• What Cross-Border Task Force Says About SEC's Priorities

  

  The formation of the U.S. Securities and Exchange Commission's cross-border task force, focused on investigating U.S. federal securities law violations overseas, underscores Chairman Paul Atkins' prioritization of classic fraud schemes, particularly involving foreign entities, say attorneys at Cleary.

• Series

  Traveling Solo Makes Me A Better Lawyer

  

  Traveling by myself has taught me to assess risk, understand tone and stay calm in high-pressure situations, which are not only useful life skills, but the foundation of how I support my clients, says Lacey Gutierrez at Group Five Legal.

• Opinion

  DOJ's Tracing Rule For Pandemic Loan Fraud Is Untenable

  

  In conducting investigations related to COVID-19 relief fraud, the government's assertion that loan proceeds are nonfungible and had to have been segregated from other funds is unsupported by underlying legislation, precedent or the language establishing similar federal relief programs, say Sharon McCarthy, Jay Nanavati and Lasya Ravulapati at Kostelanetz.