Expert Analysis


A Look At CMS' Proposed Medicaid Drug Rebate Changes

A recently proposed rule from the Centers for Medicare & Medicaid Services would modify significantly the Medicaid Drug Rebate Program regulations and may achieve its goal of encouraging value-based purchasing arrangements, but some of the rule's regulatory language is vague, say attorneys at Ropes & Gray.


Tech Tools Can Boost Auto Accident Claim Recovery

It can be difficult to determine what happened and who is at fault after a vehicle accident — but attorneys and investigators can multiply the value of legal claims by moving quickly to preserve evidence and capture information with the latest technology, says Harry Kazakian at USA Express Legal and Investigative Services.


What FERC Grid Cybersecurity Review Means For Power Cos.

The Federal Energy Regulatory Commission's recently launched inquiry on cybersecurity enhancements to infrastructure reliability standards could lead to greater costs and compliance obligations for distributed generation assets, but also increased protection for the overall bulk power grid, say attorneys at Michael Best.


Mask-Wearing Prosecution Witnesses May Face Roadblocks

When in-person criminal jury trials resume, witnesses wearing masks as protection against the coronavirus will almost certainly lead to a new line of cases weighing public health against a defendant's Sixth Amendment right to confront prosecution witnesses, says Scott Grubman at Chilivis Grubman.


6 Considerations When Shopping For Legal Tech Software

When evaluating the vast range of legal technology options available today, law firms will want to make sure that firm intellectual property and client data stored in the software are encrypted, isolated, protected through backups, and in compliance with the ever-growing list of data regulations, say Eric Tucker and Dorna Moini at Documate.


Berman Ouster May Not Be The End Of SDNY Drama This Year

While the dust appears to have settled after the surreal departure of U.S. Attorney Geoffrey Berman from the Southern District of New York last month, the interim tenure of Acting U.S. Attorney Audrey Strauss bears close watch in this fraught moment leading up to the presidential election, say Danya Perry and Samidh Guha at Perry Guha.


CARES Act Bankruptcy Litigation Raises Chevron Questions

While most bankruptcy courts have deferred, under the Chevron doctrine, to the Small Business Administration's decision to exclude bankrupt borrowers from the Paycheck Protection Program, the agency's rules appear to be shortsighted and misguided, says attorney Richard Corbi.


What DC's Advertising Sales Tax Proposal Means For Biz

The District of Columbia's recently approved preliminary budget would make it the first jurisdiction to adopt targeted, transaction-based sales tax on digital advertising and personal information, and business taxpayers should evaluate the complexities that arise from taxing such services, say attorneys at Eversheds Sutherland.


Ohio Ruling Adds To Insurance Uncertainty For Opioid Suits

An Ohio appeals court's recent decision in Acuity v. Masters Pharmaceutical fails to address an insurer's duty to indemnify policyholders embattled in opioid litigation, only amplifying the uncertainty surrounding insurance coverage for opioid judgments and settlements, say attorneys at Nicolaides.


Tips For Securitizing Loans With Future Advance Obligations

With the COVID-19 crisis heightening borrowers' desire to minimize costs and lenders' desire for liquidity in secondary markets, real estate loan terms for future advances may be an attractive option but they also create some complexities that should be addressed in loan agreements, say Steven Herman and Matthew McManus at Cadwalader.


3 Lessons From Updated FCPA Resource Guide

The U.S. Department of Justice and U.S. Securities and Exchange Commission's recently released Foreign Corrupt Practices Act guide offers important lessons on recent enforcement policies and interpretations, solicitude toward acquiring companies, and noteworthy trends in enforcement activity, say Andrew Weissmann and Christine Braamskamp at Jenner & Block.


Navigating USPTO And Court Standards On Patent Eligibility

Patentees should prioritize clear drafting in order to comply with two competing sets of eligibility standards — U.S. Patent and Trademark Office’s, as clarified in a recent report, and the courts', say Drew Schulte and Eric Rusnak at Pillsbury.


Aviation Watch: The Pilot's Liability In The Kobe Bryant Crash

A close analysis of the known facts about the Kobe Bryant helicopter crash suggests that liability rests not with the aircraft manufacturer, but with the pilot, who violated fundamental flight rules and made a fatal misjudgment, says Alan Hoffman, a retired attorney and aviation expert.


11th Circ. FCA Ruling Takes Practical Approach To Materiality

The Eleventh Circuit’s recent Ruckh v. Salus decision addresses False Claims Act materiality in a holistic, commonsense way, echoing U.S. Supreme Court guidance and benefiting whistleblowers, the government and taxpayers in the fight against fraud, say Linda Severin and Alex Maulden at the Whistleblower Law Collaborative.


Law Firm Strategies For Publicizing Laterals Amid Lockdowns

With business development dinners and social events no longer viable for new lateral hires, law firms need a refreshed game plan — one that fully exploits the digital landscape, say Andrew Longstreth and Jesse Dungan at Infinite Global and Michael Coston at Coston Consulting.


In Defense Of The One-Stop Shop: CNIL Stands Corrected

While France's highest administrative court last month did confirm the 2019 decision by the country's data protection regulator CNIL fining Google 50 million euros for alleged violations of the General Data Protection Regulation, the court also corrected CNIL on a key element of GDPR enforcement — how to apply the "one-stop-shop mechanism," say attorneys at MoFo.


How COVID-19 May Change Environmental M&A Due Diligence

As M&A transactions face increased scrutiny in the pandemic-stressed economic landscape, environmental due diligence must address changing business imperatives and reflect evolving health and safety concerns, says Michael Bittner at Ramboll.


Key Elements Of NY Agencies' Renewable Energy Plan: Part 2

A proposal from two New York energy agencies that would significantly restructure the state's clean energy market could result in major impacts for load-serving entities and new economic opportunities for disadvantaged communities, says Kevin Blake of Phillips Lytle.


Security Fears Over HK Cable Reveal 'Team Telecom' Priorities

Because the federal agencies known as "Team Telecom" have raised national security concerns regarding a proposed submarine cable system connecting the U.S. to Hong Kong, companies involved in similar projects should expect increased federal scrutiny and consider mitigation strategies, says Caroline Brown at Crowell & Moring.


High Court SEC Disgorgement Ruling Doesn't Empower FTC

While the Federal Trade Commission has expressed that the U.S. Supreme Court's recent decision in Liu v. U.S. Securities and Exchange Commission supports its asserted disgorgement power, the court's reasoning only underscores why the FTC does not have the power to obtain disgorgement in antitrust and consumer protection cases, say Stephen McIntyre and Sophie Tarazi at O'Melveny.




Q&A


Coping With A Pandemic: McCarter & English's Abdul Rehman

As society continues to adapt to COVID-19, Law360 is sharing reactions from around the business and legal community. Today's perspective comes from Newark-based Abdul Rehman Khan, pro bono fellow for the city of Newark at McCarter & English.



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.




State Of Class Certification

In light of recent data revealing record levels of class certification grants from federal courts, attorneys examine the latest offense and defense strategies in Employee Retirement Income Security Act, workplace bias, and wage and hour class suits.




Op-Eds


Fed. Circ. Patent Eligibility Test Erroneously Distorts Alice

A recent certiorari petition to the U.S. Supreme Court in Chamberlain v. Techtronic reveals that the Federal Circuit's twisting of the Mayo-Alice patent eligibility framework demands fixing, whether by the Supreme Court or other courts, litigators and lawmakers, say former Federal Circuit Chief Judge Paul Michel and attorney John Battaglia.

End Forced Employee Arbitration To Advance Social Equality

If recent corporate claims against systemic racism and discrimination are genuine, companies should return bias and harassment claims to the courts by discontinuing the use of mandatory employment arbitration agreements, says attorney Victor Caldwell.



Access to Justice Perspectives


How Attys Can Help As Addiction Cases Rise Post-Pandemic

The increase in alcohol and drug consumption during the pandemic is predicted to result in an influx of legal cases, but attorneys can establish a solid defense by ensuring their clients begin the journey to recovery, says Sue Bright at New Directions for Women.




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