Expert Analysis


Perspectives

ODonnell Consent Decree Will Harm Criminal Justice In Texas

In Odonnell v. Harris County, a Texas federal court ordered that misdemeanor offenders could be released without bail, marking a fundamental deterioration of the Texas criminal justice system, says attorney Randy Adler.


Perspectives

Judges Cannot Rehabilitate Offenders With Extra Prison Time

Although they may mean well, federal judges should stop attempting to help criminal defendants get into drug rehabilitation programs by unlawfully sending them to prison for longer than their recommended sentences, says GianCarlo Canaparo at The Heritage Foundation.


New NLRB Election Rules Re-Level The Field For Employers

Christmas came early for employers on Friday with new regulations governing the National Labor Relations Board's election process. Effective in April 2020, these procedural changes go a long way toward re-leveling the playing field for employers when they litigate election issues and conduct election campaigns, say attorneys at Sheppard Mullin.


Managing Financial Product Data In Antitrust Cases

The data considerations required in antitrust cases involving financial products are different than those for tangible products when it comes to economic analyses for class certification, liability and damages, say George Korenko and Matthew Milner at Edgeworth Economics.


NJ Benefits Bill May Deter Business With Contractors

As the Portable Benefits Act for Independent Contractors makes its way through the New Jersey Legislature, businesses will need to determine whether the new costs of working with contractors will be worth continuing to do business in the state, say attorneys at Jackson Lewis.


Whistleblowers' Unique Role In DOJ's Anti-Collusion Efforts

The U.S. Department of Justice's recently formed Procurement Collusion Strike Force provides those uniquely positioned in government contracting to be aware of anti-competitive conspiracies an excellent opportunity to step forward under the False Claims Act, say David Caputo and Zachary Arbitman at Youman & Caputo.


4 Reasons Software Copyright Lawsuits Are On The Rise

Technology companies are increasingly enforcing the copyrights in their software of late, which could lead to a serious shift in the IP litigation landscape and may create increased opportunities — and pitfalls — for technology companies seeking to protect one of their most important assets, say Hugh Marbury and Armeen Mistry of Cozen O’Connor.


How English Law Liability Frameworks May Apply To AI

Although English civil and criminal liability frameworks that apply to artificial intelligence systems seem likely to be reformed in the near future, those operating in the AI space should manage existing legal risks in the meantime, say Ben Hughes and Russell Williamson of Bird & Bird.


High Court Seems Skeptical Of 5th Circ. Sentencing Practice

The recent U.S. Supreme Court oral arguments in Holguin-Hernandez v. U.S. indicate that the justices are likely to reject the Fifth Circuit’s practice of requiring a post-sentence objection, though it remains uncertain whether their decision would provide clear guidance on necessary specificity in objections, say Elizabeth Bailey and Jill Winter of Buckley.


This Year's NLRB Rulings Were Great News For Employers

While the National Labor Relations Board is still regarded as a Byzantine legal minefield, this year the tide turned on issues like employer property rights and protected activity, and the landscape has never been so hospitable for employers, says Patrick Scully at Sherman & Howard.


State Net

2020 Will Be A Year Of Decision For States

The coming year will be politically crucial for the states, with most choosing legislatures that in 2021 will redistrict congressional and legislative seats on the basis of the 2020 census, says Lou Cannon of State Net Capitol Journal.


NY, NJ Offshore Wind Bids Buoy State-Level Renewables Push

Recent actions in New Jersey and New York to advance offshore wind power projects are part of a growing surge of clean energy development by state and local governments, says Scott Press of Goldberg Segalla.


Reps And Warranties Insurance Earns Spot In M&A Toolkit

In this brief video, Eric Schwartzman at Cooley discusses what representation and warranty insurance is, when it’s used in M&A and private equity transactions, what it covers, what it doesn’t cover, and what it costs to put in place.


When DOJ Seeks Dismissals Of Life Sciences FCA Cases

Recent False Claims Act cases highlight key considerations for defendants regulated by the U.S. Food and Drug Administration when requesting that the U.S. Department of Justice dismiss their cases on grounds that they would distract from the FDA’s public health responsibilities, say attorneys at Ropes & Gray.


Challenges For Investors, Developers Reviving Aging Malls

Before transforming a dying shopping mall into a dynamic mixed-use destination, developers and investors need to consider how existing covenants, zoning rules, leases, parking restrictions and tax reassessment may affect their project, say David Alvarado and Cheryl Brechlin of Crosbie Gliner.


Mediation Standards Lack Uniformity In Federal Bankruptcy

Although court-annexed mediation of federal bankruptcy cases has become more common, no single definition of good faith nor standard for imposition of mediation sanctions governs such proceedings, says Melanie Cyganowski at Otterbourg.


High Court USPTO Atty Fee Ruling Affords Applicants Clarity

The U.S. Supreme Court's decision in Peter v. NantKwest, that Section 145 of the Patent Act does not entitle the USPTO to attorney fees as part of the expenses paid by patent applicants, provides much-needed clarity, eliminates disincentives for patent and trademark applicants and makes district court review of application rejections more viable, say attorneys at Skadden.


Excerpt from Lexis Practice Advisor

Avoiding Employee Caregiver Discrimination Pitfalls

Because employer discrimination based on employees' family responsibilities can take on many different forms and is not covered by a single federal law, legal claims concerning these issues can be complex, says Elizabeth Chang of Goldberg Segalla.


Ex Parte Appeal Can Be A Strategic Patent Prosecution Tool

U.S. Patent and Trademark Office statistics indicating that patent applicants lose 60% of appeals fail to account for pre-Patent Trial and Appeal Board resolutions, and an ex parte appeal can be an effective and efficient tool for navigating an impasse with an examiner if a broader view of prosecution is adopted, says Jeffrey Chelstrom of Honigman.


FTC Disclosure Guide Signals More Influencer Scrutiny

The Federal Trade Commission's recently issued disclosure guidelines for social media influencers are educational, but, along with recent FTC enforcement actions, they also indicate that regulatory agencies are scrutinizing influencers and the advertisers that work with them, says Theodore Max at Sheppard Mullin.




Special Series


Judging A Book

Are the latest books on the judicial system worth reading? Federal judges share their thoughts in this series of book reviews.




Pursuing Wellness

In this Expert Analysis series, leaders at some of the law firms that committed to the American Bar Association's 2018 pledge to improve mental health and well-being in the legal industry explain how they put certain elements of the initiative into action.




Op-Eds


Drug-Pricing Bill Threatens Robust Generics Industry

The Bringing Low-Cost Options and Competition while Keeping Incentives for New Generics Act, currently pending in the Senate, goes too far in undercutting first-to-file generic drug applicants’ 180-day marketing exclusivity period, which has been crucial for the phenomenal growth of the industry, say Chad Landmon and David Ludwig of Axinn.

Beware Eroding Tax Protections For Website Operators

The proverbial canary in the coal mine, warning of imminent disaster, seems fitting for recent efforts of the Multistate Tax Commission’s Uniformity Committee regarding the scope of federal protection from state income tax for any operator of an internet website, say Martin Eisenstein and David Bertoni of Brann & Isaacson.



Access to Justice Perspectives


ODonnell Consent Decree Will Harm Criminal Justice In Texas

In Odonnell v. Harris County, a Texas federal court ordered that misdemeanor offenders could be released without bail, marking a fundamental deterioration of the Texas criminal justice system, says attorney Randy Adler.