Expert Analysis


A Quick Take On Trump's Contractor Diversity Training Order

On Tuesday, President Donald Trump issued an executive order that will prohibit government contractors from including nine concepts in their workplace diversity training materials, which contractors should review now to gauge their risk when the order becomes effective in November, says Lucas Hanback at Rogers Joseph.


Foreign Securities Class Actions 10 Years After Morrison

The U.S. Supreme Court’s landmark 2010 decision in Morrison v. National Australia Bank has had a sweeping impact on the application of the federal securities laws to transnational securities fraud, but it has not brought the predictability and consistency it promised and has exposed foreign issuers to greater U.S. class action liability, say attorneys at Cleary.


New 'Buy American' Rules Bear Risks For Prime Contractors

A recently proposed Federal Acquisition Regulatory Council rule maximizing the use of American-made goods only applies to a narrow set of procurements, but for prime contractors subject to the Buy American Act, the changes may significantly disrupt supply chains, say Amy Conant Hoang and Erica Bakies at K&L Gates.


Aviation Watch: Controllers' Liability In Kobe Bryant Crash

Two air traffic controllers who communicated with the pilot of Kobe Bryant's helicopter before its crash were recently joined to the litigation over the accident for allegedly failing to provide the pilot with radar service — but the cause of action against them rests on legal quicksand, says Alan Hoffman, a retired attorney and aviation expert.


DOJ Support Of SEP Injunctions Should Stabilize Licensing

The U.S. Department of Justice's recent letter to the Institute of Electrical and Electronics Engineers, which explicitly supports standard-essential patent owners in their pursuit of injunctive relief and favors a diminished role for antitrust enforcement in intellectual property disputes, bodes well for rebalancing the licensing market, say attorneys at Mintz.


Federal Courts Are Trending Against Cannabis Contracts

Federal courts, previously reluctant to invalidate contracts simply because they happened to involve cannabis, now seem to be reversing their approach — including in cannabis-friendly jurisdictions, says Vincent Sliwoski at Harris Bricken.


Elections May Decide Fate Of Gig Worker Classification Regs

The future of the gig economy's nonemployee model could hinge on the upcoming federal and California state elections, with the Democratic presidential candidate's regulatory approach at odds with a recent U.S. Department of Labor proposal that would make it easier to label workers as contractors, say Paul DeCamp and Michael Kun at Epstein Becker.


Excerpt from Practical Guidance

Breaking Down The Top 3 COVID-19 Workplace Claims

Attorneys at Fisher Phillips identify litigation trends in the three most common types of COVID-19 claims filed against employers to date, and discuss risk-reduction and defense strategies.


2 NY Contract Cases Highlight Limits Of Impossibility Defense

As parties consider invoking the common law doctrine of impossibility to defend contract nonperformance during the pandemic, two recent New York federal and state court decisions — Lantino v. Clay and Backal Hospitality v. 627 West — illustrate the challenges of establishing such a defense, say Muhammad Faridi and Timothy Smith at Patterson Belknap.


A Road Map For Drafting Persuasive Discovery Motions

Best practices that can help litigators write convincing discovery motions include thinking about the audience, addressing a few key questions, and leaving out boilerplate from supporting briefs, says Tom Connally at Hogan Lovells.


Framing The Legacy Of The SEC Under Clayton

Attorneys at Sidley analyze recent speeches from U.S. Securities and Exchange Commission Chairman Jay Clayton and Division of Enforcement Director Stephanie Avakian in light of the commission’s last four years of enforcement achievements, and with an eye toward the agency’s forward priorities.


How Congress Can Depoliticize The Supreme Court

Congress has multiple means to take the politics out of federal judicial nominations and restore the independence of the U.S. Supreme Court — three of which can be implemented without a constitutional amendment, says Franklin Amanat at DiCello Levitt.


COVID-19 Crisis May Make M&A Earnouts More Attractive

Earnouts are poised for a resurgence in the pandemic-churned M&A market, making it important to weigh the structure’s advantages as a way to close valuation gaps between buyers and sellers, as well as consider potential federal income tax disadvantages, say Efren Acosta and Ron Scharnberg at Baker Botts.


11th Circ. Ruling Doesn't Lower Qualified Immunity Bar

While a video recording in Cantu v. City of Dothan — a recent Eleventh Circuit case involving a fatal shooting by a police officer — allowed the plaintiffs to clear the difficult qualified immunity hurdle, the court's ruling does not make it easier for most victims to surmount the defense, says Adriana Collado-Hudak at Greenspoon Marder.


Lessons From An In-Court Jury Trial During The Pandemic

Following a recent in-person jury trial at the Indiana Supreme Court, Angela Hall and Jason Rauch at Faegre Drinker offer takeaways on remote trial preparation, socially distanced voir dire and evidence presentation during the COVID-19 era.


IRS Notice Helps Unpack Part-Time Worker 401(k) Eligibility

As sponsors struggle to evaluate whether and how to include employer contributions when 401(k) plan eligibility is extended to long-term, part-time workers on Jan. 1, newly released IRS guidance may clarify some of the administrative burdens, say Anne Hall and Katharine Finley at Hall Benefits.


When Do Insureds' Legal Fees Constitute Defense Expenses?

An Oklahoma federal court's surprising decision in Turner v. XL Specialty Insurance — now on appeal before the Tenth Circuit — found that a named defendant's legal costs did not qualify as defense expenses, highlighting ambiguities in how "defense" is defined for insurance purposes, say David Kroeger and Catherine Doyle at Jenner & Block.


Balancing Newly Divergent State, USPTO Ethics Rules

In light of the U.S. Patent and Trademark Office's stringent ethics rules and failure to adopt a choice-of-law rule, intellectual property attorneys practicing in states that recently adopted more progressive ethics rules may have to modify their practice to avoid discipline, say attorneys Emil Ali and Michael McCabe.


5 Ways Retailers Can Mitigate Product Liability Litigation Risk

While courts sometimes hold retailers liable for injuries caused by products they sold but did not manufacture — as a California appeals court did recently in Bolger v. Amazon — retailers can implement a number of strategies to reduce product liability litigation risk, say Alexandra Cunningham and Elizabeth Reese at Hunton.


And Now A Word From The Panel: Justifying An MDL

Recent oral arguments before the Judicial Panel on Multidistrict Litigation in the Ahern Rentals trade secret case demonstrate that justifying centralization of related actions into an MDL hinges on showing similarities between the actions — and especially on whether they will lead to common discovery, says Alan Rothman at Sidley.



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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.




AGs In A Pandemic

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




Op-Eds


How RBG Tamed Robinson-Patman Price Discrimination

The late Justice Ruth Bader Ginsburg authored only one significant antitrust decision in her decades on the court, but she made it count by bringing rationality to the confused, arcane area of price discrimination under the Robinson-Patman Act, honoring both the text and policy, says Scott Abeles at Carlton Fields.

9th Circ. Antitrust Ruling Threatens NFL, Free Enterprise

The U.S. Supreme Court should reverse a recent Ninth Circuit decision — holding that the NFL-DirecTV Sunday Ticket joint venture violates antitrust laws — because it jeopardizes a business model driving innovation in this country, says former Sen. Orrin Hatch.



Access to Justice Perspectives


Reforming Public Defense Is Crucial For Criminal Justice

By resisting investment in public defender offices, states and counties are overlooking the best opportunity to ensure justice for vulnerable criminal defendants and ferret out police, prosecutors and judges who cut corners — but there is some movement on the ground that warrants cautious optimism, says Jonathan Rapping at Atlanta's John Marshall Law School.



Q&A


Coping With A Pandemic: Eckert Seamans' Karen Elliott

As society continues to adapt to COVID-19, Law360 is sharing reactions from around the business and legal community. Today's perspective comes from Richmond-based Karen Elliott, a member at Eckert Seamans focused on labor and employment law and commercial litigation matters.




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