Expert Analysis

• Opinion

  It's Time For The Judiciary To Fix Its Cybersecurity Problem

  

  After recent reports that hackers have once again infiltrated federal courts’ electronic case management systems, the judiciary should strengthen its cybersecurity practices in line with executive branch standards, outlining clear roles and responsibilities for execution, says Ilona Cohen at HackerOne.

• Tips For Cos. Crafting Enforceable Online Arbitration Clauses

  

  Recent rulings from the Ninth Circuit and the U.S. District Court for the Southern District of California indicate that courts are carefully examining the enforceability of online arbitration clauses, so businesses should review the design of their websites and consider specific language next to the "purchase" button, say attorneys at DTO Law.

• Opinion

  Crypto Bills' Narrow Scope Guarantees Continued Uncertainty

  

  The Digital Asset Market Clarity Act and Responsible Financial Innovation Act aim to make the $4 trillion crypto market more transparent and less susceptible to fraud, but their focus on digital assets sold in investment contract transactions promises continued uncertainty for the industry, says Joe Hall at Davis Polk.

• Rules Of Origin Revamp May Be Next Big Trade Development

  

  The rules of origin for determining what tariff applies to any given import appear to be on the cusp of an important rethink, and it seems likely that the administration will try to align the rule with its overall tariff strategy in one of three ways, says Ted Posner at Baker Botts.

• 7 Lessons From The Tractor Supply CCPA Enforcement Action

  

  The California Privacy Protection Agency's recent enforcement action targeting Tractor Supply for alleged violations of the California Consumer Privacy Act provides critical insights into the compliance areas that remain a priority for the California regulator, including businesses with significant consumer interactions, say attorneys at Troutman.

• Parody Defendants Are Finding Success Post-Jack Daniel's

  

  Recent decisions demonstrate that, although the U.S. Supreme Court's decision in Jack Daniel's v. VIP Products did benefit trademark plaintiffs by significantly limiting the First Amendment expressive use defense, courts also now appear to be less likely to find a parodic work likely to cause confusion, says Andrew Michaels at University of Houston Law Center.

• Considering Judicial Treatment Of The 2023 Merger Guidelines

  

  Courts have so far primarily cited the 2023 merger guidelines for propositions that do not differ significantly from prior versions of the guidelines, leaving it unclear whether the antitrust agencies will test the guidelines’ more aggressive theories, and how those theories will be treated by federal judges, say attorneys at Covington.

• Key Lessons From Youths' Suit Against Trump Energy Orders

  

  A Montana federal court's recent decision in Lighthiser v. Trump, dismissing a challenge by a group of young plaintiffs to President Donald Trump's executive orders promoting fossil fuels, indicates that future climate litigants must anchor their suits in discrete, final agency actions and statutory text, say attorneys at ArentFox Schiff.

• Federal Debanking Scrutiny Prompts Compliance Questions

  

  Recent U.S. Small Business Administration guidance sets forth requirements for preventing so-called politicized debanking and specific additional instructions for small lenders, but falls short on clarity for larger institutions, leaving lenders of all sizes with questions as they navigate this unique compliance challenge, say attorneys at Cooley.

• Series

  Writing Novels Makes Me A Better Lawyer

  

  Writing my debut novel taught me to appreciate the value of critique and to never give up, no matter how long or tedious the journey, providing me with valuable skills that I now emphasize in my practice, says Daniel Buzzetta at BakerHostetler.

• SEC's No-Action Relief Could Dramatically Alter Retail Voting

  

  The U.S. Securities and Exchange Commission recently cleared the way for ExxonMobil to institute a novel change in retail shareholder voting that could greatly increase voter turnout, granting no-action relief that represents an effective and meaningful step toward modernizing the shareholder voting process and the much-needed democratization of retail investors, say attorneys at Cozen.

• 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.