Expert Analysis


Compliance Tips For Marketing Health Benefits In Alcohol

When it comes to marketing alcohol products around health benefits, such as vitamin-fortified hard seltzer, accurately understanding product classification, along with regulators' stance on individual beverage claims, will make it easier to avoid regulatory risk, say attorneys at DLA Piper.


What Attorneys Should Know About Blockchain Disputes

As blockchain companies on the product supply chain rapidly adopt new technologies, commercial counsel can prepare to assist blockchain clients and consumers in mitigating transactional disputes by becoming familiar with smart contract code, jurisdictional issues and new dispute resolution schemes, says Michael Hewitt at Sideman & Bancroft. 


Proposed Mass. Enviro Regs Prompt Compliance Questions

The proposed amendments to the Massachusetts Environmental Policy Act would introduce new assessments for determining unfair or inequitable environmental burden on marginalized populations, but the lack of guidance and a looming implementation deadline leave developers in the dark on how to apply new regulatory concepts, say attorneys at Holland & Knight.


Extension Of The HSR Waiting Period Increases Acquirer Risk

Attorneys at K&L Gates look at the Federal Trade Commission's recent extension of the merger-review waiting period under the Hart-Scott-Rodino Act, and its effect on pending transactions, broader public policy and the Biden-era M&A market.


2nd Circ. ERISA Ruling Offers Lessons On Proof Of Loss

The Second Circuit’s recent decision in Sacerdote v. New York University, reviving several retirement plan fiduciary breach claims, illustrates why defendants must avoid terminology that conflates loss and damages, and why they should develop affirmative evidence to show plans were not harmed by alleged breaches, say Deanna Rice and Randall Edwards at O'Melveny & Myers.


How Canceling The Border Wall Affects Gov't Contractors

President Joe Biden's cancellation of the border wall project has left some federal contractors in the lurch, but including protective flow-down termination clauses in their contracts can guard against subcontractor liability and ensure recovery, says Adrien Pickard at Shapiro Lifschitz.


New Contractor Insights On 'Other Transaction' Bid Protests

Based on recent case law, including the U.S. Court of Federal Claims’ recent ruling in Kinemetrics v. U.S., contractors interested in protesting so-called other transaction agreements should focus not on whether to file but on which federal court is appropriate for doing so, say Locke Bell and Krista Nunez at MoFo.


4 Antitrust Risk Areas To Watch For Government Contractors

To plan for the increased likelihood of detection and stiff penalties for antitrust violations following the anticipated passage of the Infrastructure Investment and Jobs Act, compliance efforts should focus on joint bidding, dual distribution, legal certifications, and hiring and compensation, say Andre Geverola and Lori Taubman at Arnold & Porter.


Tax-Exempt Orgs, Beware This 403(b) Plan Compliance Pitfall

A recent Internal Revenue Service publication puts 403(b) retirement plan sponsors on notice about a contribution aggregation compliance failure often identified in audits of government and tax-exempt entities, but risk can be minimized by ensuring plan documents and communications address the issue directly, say Greg Needles and Michael Gorman at Morgan Lewis.


Pandora Papers Reveal Need For Greater Tax Enforcement

The recent Pandora Papers leak is a reminder of the importance of transparency laws and proper funding for enforcement efforts against tax evasion as bad actors increasingly operate in the shadows, says Daren Firestone and Kevin Crenny at Levy Firestone.


9th Circ. Chromium Ruling May Expand Water System Liability

The Ninth Circuit's recent opinion in California River Watch v. City of Vacaville, affirming a city's liability for trace amounts of chromium in drinking water, could increase risk for water providers that transport water found to contain molecules of solid waste — even if that water meets applicable regulatory limits, says David Fotouhi at Gibson Dunn.


What SEP Holders Can Take Away From UK's Apple Ruling

A U.K. court's recent decision in the standard essential patent dispute between Apple and Optis Cellular Technology provides encouragement for SEP owners litigating their portfolios in the U.K. and reaffirms the country's place as a patentee-friendly jurisdiction, says Tess Waldron at Powell Gilbert.


Can Ariz. Nonlawyer Ownership Create A New Type Of Atty?

Arizona's new alternative business structure law requires nonlawyer-owned firms to hire compliance attorneys, leaving Arizona lawyers to wonder whether they may work for more than one firm as independent contractors for hire without running afoul of ethics rules, says Andrew Halaby at Greenberg Traurig.


Breyer's Defense Of Privacy Challenges Media Overreach

As courts continue to weigh freedom of the press against the importance of personal privacy, U.S. Supreme Court Justice Stephen Breyer's jurisprudence has repeatedly made it clear that the media have no constitutional right to engage in unlawful conduct, say David Elder at Northern Kentucky University and Neville Johnson at Johnson & Johnson LLP.


Anti-Retaliation Refresher Following Facebook Whistleblower

A former Facebook employee’s recent sharing of internal documents with government agencies and the press reminds that whistleblowers are shielded by strong anti-retaliation protections — with certain limitations, depending on the type and scope of material taken and the parties that receive it, says Alia Al-Khatib at Katz Marshall.


Nursing Homes May See Litigation Spike After 7th Circ. Ruling

The Seventh Circuit’s recent Federal Nursing Home Reform Act ruling in Talevski v. Health and Hospital Corp. opens skilled nursing facilities to federal litigation from private plaintiffs and could require exhaustion of administrative remedies before invoking state or federal court jurisdiction, say Randall Fearnow and Edward Holloran at Quarles & Brady.


Girardi Scandal Provides Important Ethics Lessons

The litigation and media maelstrom following allegations that famed plaintiffs attorney Thomas Girardi and his law firm misappropriated clients' funds provides myriad ethics and professional responsibility lessons for practitioners, especially with regard to misconduct reporting and liability insurance, says Elizabeth Tuttle Newman at Frankfurt Kurnit.


How Social Media, Mass Torts Affect Adverse Event Reports

Increases in mass tort litigation e-discovery and social media use are driving a surge in the amount of adverse event information received by manufacturers from the public about their drugs and medical devices, so companies must proactively consider how they will handle this data while remaining compliant with their reporting obligations, says Adam Pierson at DLA Piper.


Fed. Circ. Ruling Instructive On Defeating Patent Obviousness

The recent Federal Circuit decision Chemours v. Daikin, holding that the Patent Trial and Appeal Board disregarded prior art teachings in deciding that claims were obvious, reveals how the teaching-away and commercial-success doctrines provide strong arguments to overcome obviousness during patent prosecution or litigation, say attorneys at BCLP.


How Health Care Cos. Can Untangle Web Of Vaccine Mandates

While health care companies anxiously await further guidance from various federal agencies on overlapping COVID-19 vaccine mandates, there are several steps industry employers can take to tackle the compliance conundrum and prepare for accommodation requests, staffing shortages and other likely challenges, say attorneys at K&L Gates.



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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.




Embracing ESG

In this ongoing Expert Analysis series, in-house counsel share how they are adapting to the growing importance of environmental, social and corporate governance factors.




Opinion


Copyright Law's Employment Test Is Frighteningly Outdated

In Horror Inc. v. Miller, the Second Circuit's recent analysis of whether the defendant was an employee or an independent contractor, and thus able to terminate his copyright, illustrates why copyright employment principles need to be updated in view of the post-COVID-19 work context, says Matthew Fagan at Kacvinsky Daisak.

Sentencing Commission Data Tool Is Deeply Flawed

The U.S. Sentencing Commission's recently released Judiciary Sentencing INformation platform presents skewed data on the length of federal sentences, creating a misleading picture that encourages judges to impose higher sentences, says Michael Yaeger at Carlton Fields.



Access to Justice Perspectives


One-Subject Rule Strategy Can Defeat Dangerous State Laws

Attorneys at Ulmer & Berne explain how single-subject rule violation claims can thwart certain unconstitutional or controversial state statutes and protect civil rights in the face of state governments under one-party rule.





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