Expert Analysis


6 Priorities For Employment-Based Immigration Reform

Maria Fernanda Gandarez and Avram Morell at Pryor Cashman propose six practical changes the incoming Biden administration should make to improve employment-based immigration for U.S. employers and remove barriers preventing foreign talent from contributing to economic recovery in the U.S.


FTC Authority To Obtain Monetary Relief May Be Under Threat

Although justices asked difficult questions of both sides at the recent U.S. Supreme Court oral arguments in AMG v. Federal Trade Commission, they expressed significant skepticism of the FTC's implicit authority to seek restitution and disgorgement of the proceeds of fraud and other misconduct, say attorneys at Sullivan & Cromwell.


EU Rule Presents New Medical Device Compliance Hurdles

The European Union's new Medical Device Regulation coming into effect this May will create a revolutionary new legal framework for manufacturers, distributors and notified bodies, but introduces an urgent need to adapt infrastructure and data collection, say Sylvie Gallage-Alwis at Signature Litigation and Sylvie Gallage-Alwis at Exponent.


Lessons From Economic Testimony In 2020 Merger Litigation

A look back at 2020 antitrust cases shows why economic evidence is likely to remain a key element in merger-enforcement litigation, despite the occasional anomaly, says Julie Elmer at Freshfields.


How Fund Managers Can Avoid Political Contribution Missteps

In this brief video, Peter Chan and Karl Egbert at Baker McKenzie, and Suzan Rose at the Alternative Investment Management Association discuss fund manager compliance and monitoring issues related to state and federal rules on campaign contributions, particularly in light of the recent election cycle.


Ill. Case Sheds Light On Cross-State Anti-SLAPP Conflicts

An Illinois state appeals court's recent decision in Basile v. Prometheus Global Media calls attention to the unique jurisdictional challenges that arise when opposing parties invoke anti-SLAPP statutes from different states in the course of litigation, says Phillip Zisook at Schoenberg Finkel.


Fed. Circ. Ruling Shows Novelty's Role In Patent Eligibility

The recent Federal Circuit decision Simio v. FlexSim is the latest in a trend concerning a class of inventions that are patent ineligible because they’re not novel despite purporting to improve computer technology, and is informative for winning or surviving early motions to dismiss, say Braden Katterheinrich and JD Schneider at Faegre Drinker.


CFPB's Busy 2020 May Foretell Regulatory Uptick Ahead

The last year stood out for its marked resurgence in Consumer Financial Protection Bureau activity, suggesting 2021 will usher in even more vigorous enforcement, enhanced fair lending regulation, and renewed assaults on consumer arbitration and payday lending, says Richard Gottlieb at Manatt.


DC Circ. Lobbyist Ruling May Lead To 1st Amendment Clarity

The D.C. Circuit’s recent opinion in Akhmetshin v. Browder, leaving the government contacts exception's application to foreign lobbyists unsettled, may compel courts to clarify the availability of First Amendment defamation defenses to foreign companies involved in lobbying, says Joe Meadows at Bean Kinney.


What's On The Horizon For Unclaimed Property In 2021

Unclaimed property professionals who run holder compliance programs should buckle themselves in for what portends to be a perfect storm of legislative, enforcement and litigation contests this year between state administrators and holders, say attorneys at Alston & Bird.


4 Legal Industry Trends Litigation Financiers Are Watching

Some recent litigation developments demonstrate efforts by law firms and their clients to search for opportunities in the COVID-19 economic fallout, while others — such as the rise of contingency fee arrangements — reflect acceleration of tendencies that were already underway, says William Weisman at Therium Capital.


New Fla. Summary Judgment Rule Will Deter Forum Shopping

The Florida Supreme Court's recent amendment of the state's summary judgment standard to align it with that of the federal courts and most other states will improve judicial efficiency, reduce the cost and uncertainty of litigation, and help prevent forum shopping by plaintiffs with dubious claims, say Walter Latimer and Guy Noa at Fowler White.


Tips For Forming A Real Estate Fund

Multi-asset real estate funds may provide investors with opportunities to deploy capital during the pandemic-induced market downturn, but several structural questions should be considered before raising a fund, say Matt Ertman and Max Brunner at Allen Matkins.


2 Cases Highlight Superpriority Lien Risks For Lenders

Two recent decisions from a New York state court and a Nevada federal court reaffirm the importance of lenders paying off superpriority liens, which may extinguish their mortgages or deeds of trust if not swiftly addressed, say Michael O'Donnell and Michael Crowley at Riker Danzig.


Pandemic Is Changing Compassionate Release Calculus

Whereas compassionate release applications for white collar defendants were previously rare, courts are now approaching these applications with greater leniency to reduce sentences or to impose sentencing alternatives in the appropriate circumstances, which may continue beyond the pandemic, say Jamie Furia and Carly Coleman at Lowenstein Sandler.


4 Steps For Public Cos. Subject To New Executive Pay Rules

To comply with recently finalized Internal Revenue Service regulations implementing the Tax Cuts and Jobs Act's $1 million cap on compensation deductions, employee benefit and tax executives at public companies should understand who their covered employees are and identify compensation agreements subject to the rules, say Samuel Krause and Teresa Abney at Crowell & Moring.


How EU Climate Regs May Affect US Private Fund Managers

As compliance dates for the European Commission's environmental, social and governance rules draw closer, U.S. private fund managers should be aware that EU investors and subsidiaries could trigger climate risk data requests and compliance obligations, says Trysha Daskam at Silver Regulatory.


Lenders' Role Will Be Key In NYC Green Building Loans

New York City's Climate Mobilization Act, which will soon restrict large buildings' carbon emissions, provides for a loan program to help owners finance energy-efficient improvements — but the program's success will depend on mortgage lenders' participation, says Jason Rozes at Dechert.


A Lawyer's Guide To Setting Well-Being Goals In 2021

In the face of rising client demands due to the pandemic and the changing regulatory environment, and with remote work continuing for the foreseeable future, lawyers should invest in their well-being by establishing inspiring yet realistic goals for 2021 — one month at a time, says Krista Larson at Morgan Lewis.


Evaluating Ethical And Legal Risk In Ransomware Payments

Deciding whether to pay the demanded ransom during a cyberattack is complex and requires a careful balancing of the risks to the firm's business against the reputational and regulatory risks, but companies can also prepare for this eventuality by taking concrete steps now, say Rob Dedman and Kim Roberts at King & Spalding.



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Special Series


Judging A Book

Are the latest books on the judicial system worth reading? In 2020, seven federal judges shared their thoughts in this series of book reviews.




AGs In A Pandemic

In this Expert Analysis series, state attorneys general shared their enforcement priorities related to COVID-19.




Op-Eds


6 Ways Financial Regulators Should Prioritize Climate Risk

As the Biden administration prepares to take office, financial regulators must resolve to collaborate with each other and industries to manage the financial risks from climate change after years of obstruction by the Trump administration, says New York Department of Financial Services Superintendent Linda Lacewell.

Congress Must Fix The AML Whistleblower Law

Fundamental differences between whistleblower provisions in the recently passed Anti-Money Laundering Act and the Dodd-Frank Act will render the new law ineffective until Congress amends it to fully conform to Dodd-Frank's highly successful reward provisions, says Stephen Kohn at Kohn Kohn.



Access to Justice Perspectives


Judges On Race: The Power Of Discretion In Criminal Justice

Judges should take into consideration the several points of law enforcement and prosecutorial discretion — from traffic stops to charging decisions and sentencing recommendations — that often lead to race-based disparate treatment before a criminal defendant even reaches the courthouse, say Judge Juan Villaseñor and Laurel Quinto at Colorado's Eighth Judicial District Court.





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