Expert Analysis

• Is ESG Conduct Exempt From Antitrust Scrutiny?

  

  The applicability of the Noerr-Pennington doctrine's noncommercial boycott exemption to environmental, social and governance conduct remains an open question, but U.S. Supreme Court precedent dating back four decades shows that courts could recognize an affirmative defense for boycotts motivated by ESG objectives, say Joel Mitnick and Daniel Lumer at Cadwalader.

• Sentencing Guidelines Proposal May Encourage More Trials

  

  Proposed amendments to the U.S. sentencing guidelines prohibiting dismissed and acquitted conduct from being considered at a defendant's sentencing may ultimately help resuscitate the federal criminal trial and rectify an arguably unconstitutional aspect of sentencing, say Elena Quattrone and Melissa Jampol at Epstein Becker.

• 10th Circ. Ruling Shows Hemp Issues Need Congressional Fix

  

  The Tenth Circuit’s recent Serna v. Denver Police Department decision adds to a line of rulings demonstrating that hemp producers and sellers cannot rely on the 2018 Farm Bill to preempt application of state regulations, which Congress should remedy with the 2023 Farm Bill, says Christian Foote at Clark Hill.

• Navigating The DOJ's Latest Corporate Self-Disclosure Policy

  

  The U.S. Department of Justice’s new policy aims to incentivize companies to voluntarily self-disclose misconduct to any U.S. attorney’s office, but its narrow definitions, disqualifying exceptions and broad charging discretion may complicate companies' efforts to comply, say John Pease and Steven Strauss at Morgan Lewis.

• New AML Law May Be Key Tool To Enforce Russia Sanctions

  

  A new anti-money laundering law for the first time authorizes monetary rewards for tips leading to government enforcement against certain sanctions violations, and though many questions remain, it gives the U.S. an additional tool in the ongoing global battle against Russian aggression, say Daren Firestone and Kimberly Wehle at Levy Firestone.

• How Appetizing Will Cos. Find The DOJ's New Carrots?

  

  The U.S. Department of Justice’s latest corporate enforcement policy updates provide greater incentives for companies that voluntarily self-disclose wrongdoing, but given the potential perils of extraordinary cooperation, companies may find some of these carrots less appetizing, say attorneys at Morgan Lewis.

• FCPA Enforcement Outlook: Sweeter Carrots, Sharper Sticks

  

  Corporate enforcement of the Foreign Corrupt Practices Act in 2023 will likely remain apace with last year’s rebound from historic lows, continuing to demonstrate broad industry and geographic reach, as well as the U.S. Department of Justice’s evolving approach to incentives and consequences, say attorneys at Debevoise.

• The Issues Shaping Labor Market Antitrust Litigation In 2023

  

  Questions about whether traditional antitrust analysis should apply to labor market abuses will continue to define litigation over agreements restricting employment this year, as courts grapple with the sufficiency of pleadings, parties' evidentiary burdens, affirmative defenses and jury instructions, say Manly Parks and Randy Kim at Duane Morris.

• Criminal Vs. Civil Liability Amid Growing Crypto Enforcement

  

  Amid growing crypto enforcement and new resources at the U.S. Department of Justice, cryptocurrency market participants should understand the ways in which regulators and prosecutors collaborate in parallel criminal and civil investigations — and how the DOJ’s criminal tools are broader and more intrusive than agencies’ civil actions, say attorneys at WilmerHale.

• Expect More CPSC Litigation, Regulation, Penalties In 2023

  

  According to its recently issued operating plan, the U.S. Consumer Product Safety Commission will take a hard and fast approach to product safety in 2023 — with enforcement as a top priority, and all cases evaluated for potential referral for criminal prosecution — so ensuring compliance will be paramount for companies, say attorneys at Morgan Lewis.

• Opinion

  Law Schools Must Prep Students To Tackle Gun Violence

  

  Given that Gen Z — the so-called mass shooting generation — is now of law school age, it's time for schools to invest more in courses, clinics and other resources to prepare their students to enter the growing field of gun violence prevention litigation, says Kaivan Shroff at Everytown for Gun Safety.

• Florida's Medical Marijuana Industry: 2022 In Review

  

  2022 saw the medical marijuana market in Florida continue with several measured steps forward, bringing with it a host of new business opportunities and litigation challenges — and leaving open questions about adult-use legalization, says Richard Blau at GrayRobinson.

• What New Federal Child Sex Abuse Law Changes For Plaintiffs

  

  Though the recently passed Eliminating Limits to Justice for Child Sex Abuse Victims Act now gives adult abuse survivors an alternate venue for seeking justice by filing federal civil suits decades after childhood incidents, the law is not without faults, says Douglas Rochen at Abir Cohen.

• Preventing Loss Miscalculation In Gov't Contract Fraud Cases

  

  As the U.S. Department of Justice intensifies its focus on pandemic-related fraud in government contracting, defense attorneys should understand how to counter prosecutorial attempts to miscalculate losses by invoking provisions of the U.S. sentencing guidelines where they do not apply, says Jade Chong-Smith at Zuckerman Spaeder.

• Series

  My Favorite Law Prof: How I Learned To Argue Open-Mindedly

  

  Queens College President Frank Wu reflects on how Yale Kamisar’s teaching and guidance at the University of Michigan Law School emphasized a capacity to engage with alternative worldviews and the importance of the ability to argue for both sides of a debate.