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Expert Analysis


Considering A More Cost-Effective Future For The SFO

In light of multiple recent examples of U.K. Serious Fraud Office investigations yielding far less than the agency may have hoped for, a new approach to prosecuting individuals and corporations may be a smart investment, says Azizur Rahman of Rahman Ravelli.


The M&A Aftermath Of High Court's Emulex Punt

The U.S. Supreme Court's decision Tuesday to dismiss Emulex v. Varjabedian leaves behind a great deal of confusion in the federal securities laws governing corporate mergers and acquisitions, and there are at least three important consequences, says Lyle Roberts of Shearman & Sterling.


Gov't Contractors, Be Prepared For FCA Parallel Proceedings

The continued sprawl of False Claims Act cases warrants scrutiny of one of the statute's less understood characteristics — one set of facts can lead to concurrent or successive proceedings initiated by a combination of criminal, civil or administrative authorities, as well as private plaintiffs, say attorneys at DLA Piper.


In SEC's Remediation Model, Hard Choices For ICO Issuers

Recent guidance from the U.S. Securities and Exchange Commission may help issuers avoid having their future initial coin offerings categorized as unregistered securities offerings. But for past ICOs, issuers must rely on the SEC's remediation process, and should consider two key questions before proceeding, says Kayvan Sadeghi of Schiff Hardin.


A Step Toward Consistent State Laws For Crypto Cos.

The Conference of State Bank Supervisors' recently announced suggestions to harmonize state law frameworks for nonbank fintech companies could be particularly beneficial to cryptocurrency companies, for whom the applicable regulatory landscape is especially uncertain, say attorneys at Cleary Gottlieb.


Illinois Courts Will Continue To Interpret BIPA Broadly

Against the backdrop of the Illinois Supreme Court's Biometric Information Privacy Act opinion in Rosenbach v. Six Flags, an Illinois appellate court's recent decision in Liu v. Four Seasons reinforces that companies must carefully design and implement stringent BIPA policies to protect against class actions and related liability, say attorneys with Eversheds Sutherland.


What We Heard At The FTC Hearings: Day 22

The 13th hearing in the Federal Trade Commission’s series on competition in the 21st century focused on evaluating the FTC’s merger retrospective program. Jon B. Jacobs and Jeremy Keeney of Perkins Coie discuss some of the recurring themes, innovative concepts and key takeaways.


Negotiating M&A 'Best Efforts' Now To Avoid Future Litigation

Parties negotiating merger and acquisition agreements should note a series of recent decisions that highlight how Delaware courts interpret "best efforts” and similar industry terms of art, says Shayne Clinton of Bass Berry.


Justice Department's ACA Reversal Raises FCA Questions

The U.S. Department of Justice's about-face on Affordable Care Act constitutionality may discourage potential whistleblowers from coming forward unless the DOJ clarifies its plans to enforce the False Claims Act, says Cleveland Lawrence III of Mehri & Skalet.


How District Of Del. Limits Discovery For Unaccused Products

U.S. District Judge Colm Connolly's new form scheduling order does not explain what a patentee must show to obtain discovery on unaccused products such that they might add accused instrumentalities to the case. But fortunately, that question has been considered in a number of cases in the District of Delaware, says Jeff Castellano of Shaw Keller.


Measles Vaccine Mandates Have Strong Legal Footing

In response to the recent measles outbreak, more cities and states are expected to follow New York City's lead with orders for mandatory measles vaccinations, and challenges to those orders are unlikely to be successful, say Michael Hoernlein and Rebecca Gauthier of Alston & Bird.


A Broader View Of The US Supreme Court Bar

During the past 15 years, three widely read articles bolstered by starstruck media have promulgated the incorrect perception — sorely in need of revision — that the U.S. Supreme Court bar is limited to a handful of elite lawyers, says Lawrence Ebner of Capital Appellate Advocacy.


Health Care Cos. Should Beware Usurpation Of Opportunity

A recent Delaware Court of Chancery decision, Personal Touch v. Glaubach, may prompt corporate leadership to be more attentive to the legal risks associated with the usurpation of corporate opportunity, especially in the health care sector, says Michael Peregrine of McDermott.


Ex-Jumio CEO Case Shows SEC Is Watching Private Cos.

The U.S. Securities and Exchange Commission recently settled with the founder of Jumio for his misstatement of financial results to inflate the value of his company shares. This case is an example of what may be in store if an economic downturn hits the current stable of unicorns, say Joshua Newville and Brian Hooven at Proskauer.


'Act Of War' Questions In Cyberattack Insurance Case

Mondelez's suit against Zurich over coverage for the NotPetya ransomware attack is the first time a war exclusion has been litigated in the cyber insurance context, and it could have a significant impact on property and cyber policies, say Daniel Garrie and Peter Rosen of JAMS.


The Potential Impact Of Reversing Chevron Deference

Some questions during U.S. Supreme oral arguments in Kisor v. Wilkie suggested a willingness to overturn Auer deference. If this leads to the scuttling of Chevron deference, rapidly evolving areas of law like labor and employment could benefit from a return to courts addressing ambiguities in federal statutes, says Michael Abcarian of Fisher Phillips.


Courts Are Filling In Justices' Design Patent Remedy Void

The U.S. Supreme Court's 2016 decision in Samsung v. Apple produced considerable consternation because it did not set a standard for calculating a design patent infringer’s profits to determine a patentee’s compensation. But the lower courts' response suggests any fear of unreasonable awards was premature, say Sterne Kessler attorney Tracy-Gene Durkin and consultant Gary Griswold.


Calif. Chemical Reg Changes Could Affect Many Products

Following the introduction of a bill that would significantly expand California's decade-old framework for regulating chemicals in consumer products, businesses should assess their product inventory for chemicals that may soon be regulated, and monitor the state's regulatory process, say attorneys at Arnold & Porter.


ADA May Not Require Compliance Management Policies

As demonstrated by a Pennsylvania federal court's recent decision in Mielo v. Steak 'n Shake, it soon may no longer be possible to bring Americans with Disabilities Act claims against a company for failure to enact a policy that requires finding and removing potential physical barriers, say attorneys at Squire Patton Boggs.


How Treaties Protect Investors When Clean Energy Regs Shift

When changes in clean energy regulations lead to investor disputes, domestic companies may be limited to challenging regulatory changes in local courts, but investors from abroad can often seek remedies under international law, say attorneys at WilmerHale.




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.




Winner's Playbook

Take a peek behind the scenes of four U.S. Supreme Court cases from 2018, as the attorneys who won them reflect on the challenges they faced and the decisions they made that led to victory.

High Crimes And Misdemeanors

Twenty years after the impeachment of the 42nd president of the United States, experts consider the motivations and implications.



Q&A


A Chat With Norton Rose Diversity Director Nina Godiwalla

In this monthly series, Amanda Brady of Major Lindsey & Africa interviews management from top law firms about the increasingly competitive business environment. Here we feature Nina Godiwalla, director of diversity and inclusion at Norton Rose Fulbright.



Op-Eds


Colo. High Court Should Affirm Existing Tax Reporting Regime

The Colorado Department of Revenue’s arguments regarding the state's corporate combined reporting provision — heard in the Agilent and Oracle cases earlier this month — are undermined by the department’s own regulation and should be rejected by the Colorado Supreme Court, say Jonathan Bender and Christina Gomez of Holland & Hart.

Jury Trials, Though In Decline, Are Well Worth Preserving

In a recent Law360 guest article, the author applauded the disappearance of jury trials as an inefficient, costly mechanism, but in doing so he overlooked the greater value of jury trials for our justice system, says Stephen Susman, executive director of the Civil Jury Project at NYU School of Law.