Expert Analysis


8(a) Firms Face New Risks From Pass-Through Arrangements

​Prime contractors and subcontractors with pass-through arrangements involving the Small Business Administration's 8(a) business development program should ensure they are prepared for heightened litigation risks created by the administration’s use of False Claims Act whistleblowers to target fraud in diversity, equity and inclusion programs, say attorneys at RJO.


Justices' Hikma Reasoning May Extend Well Beyond Pharma

The active steps framework announced by the U.S. Supreme Court in its Hikma v. Amarin decision, finding that Amarin failed to plausibly allege inducement of infringement, has the potential to reshape how courts evaluate inducement claims across patent, copyright and other doctrines, say attorneys at BCLP.


10th Circ. Ruling Propels Emerging 'Occurrence' Consensus

The Tenth Circuit recently revived the Church of Jesus Christ of Latter-day Saints' bid for insurance coverage in a sexual abuse case, continuing a trend as the second circuit court to find that, where ambiguous, the definition of "occurrence" must be interpreted in favor of coverage, say attorneys at Anderson Kill.


SVB Parent's Claim Loss To FDIC Bears Bond Wording Lesson

A North Carolina federal court’s recent ruling that the Federal Deposit Insurance Corp., as receiver for the collapsed Silicon Valley Bank, solely owns a $73 million fraud claim illustrates why parent financial institutions should scrutinize joint assured provisions in fidelity bonds to prevent a failed subsidiary's covered losses going to a receiver, say attorneys at McGuireWoods.


The State Of Prediction Market Litigation After 9th Circ. Ruling

The Ninth Circuit's recent decision in Kalshi v. Assad gives state regulators significant appellate backing to enforce state gaming laws over prediction markets, creating a direct split with the Third Circuit that will likely lead to Supreme Court review of the question, say attorneys at Arnold & Porter.


Teva MDL Loss Shows DPAs Can Return To Haunt Civil Suits

Teva’s recent partial summary judgment loss in antitrust multidistrict litigation reinforces the importance of carefully scrutinizing any statement of facts a company admits to in a deferred prosecution agreement, and illustrates the potential costs of resolving a criminal investigation this way, say attorneys at Sheppard.


CISA Town Halls Signal Key Cyber Rule Changes Ahead

The Cybersecurity and Infrastructure Security Agency recently held a series of town halls to gather additional stakeholder input on the Cyber Incident Reporting for Critical Infrastructure Act, offering potential insights into how the agency may address key issues in a forthcoming final rule, say attorneys at Covington.


Meta Layoff Suit Serves As Early Test Of AI Bias Claims

A lawsuit in California federal court alleging that Meta's use of artificial intelligence in recent layoffs negatively affected employees on protected leave provides insight for plaintiffs about what evidence to preserve and how to build these discrimination claims, says Manny Starr at Frontier Law Center.


2 ECJ Rulings Give Guidance On Sport Agent Regs

The European Court of Justice recently settled two long-running disputes, Rogon and RRC Sports, by finding that the antitrust rules governing these leagues offer exceptions for regulating players' agents, and offering a path for sports associations to implement rules controlling services ancillary to their sport, say lawyers at Skadden.


An Inside Look At Squires' Discretionary Denials

A deep dive into the discretionary denials issued by U.S. Patent and Trademark Office Director John Squires since he took over last year identifies trends in commonly asserted arguments and how they correlate with institution outcomes, say attorneys at Kirkland & Ellis.


11th Circ. FCA Qui Tam Revival Queues Up Next Challenges

Though the Eleventh Circuit on Sept. 1 upheld the constitutionality of the False Claims Act's qui tam provision, it will probably face continued litigation since the appellate court declined to rule on other constitutional challenges and the decision will likely be petitioned to the U.S. Supreme Court, say attorneys at Sheppard.


Deal Termination Lessons From Verisk Merger Review Ruling

The Delaware Chancery Court’s recent ruling that Verisk Analytics forfeited its right to terminate a deal that was facing a second information request from the Federal Trade Commission illustrates the danger of information gaps between client and counsel and the risks of "willful conduct" language in merger agreements, say attorneys at HSF Kramer.


Home Equity Products Face Expanding Regulatory Patchwork

Home equity investment providers, which have recently come under scrutiny from regulators and industry groups, face meaningful burdens as the U.S. Senate and a growing number of states take divergent regulatory approaches, with no uniform standard likely anytime soon, say attorneys at Bradley.


Prepping Health Businesses For Sale In A Data-Driven Market

In a thinner market for healthcare transactions, with both regulators and buyers using artificial intelligence to inspect data in great detail, the margin for error in sellers' financials and legal diligence has narrowed, requiring more proactive compliance efforts, says Cody Dumas at FBFK Law.


How Orbital Data Centers May Test NEPA's Reach

With environmental and scientific groups recently pushing back against the Federal Communications Commission's proposal to exempt massive data center satellite constellations from review under the National Environmental Policy Act, the question of whether NEPA even applies to projects in space turns on three closely related issues, say attorneys at Morgan Lewis.


How Subchapter V Bill May Change Restructuring Analysis

While a recently passed Senate bill would expand the pool of businesses eligible to use the streamlined Subchapter V process, its more significant influence may be on how distressed businesses and their lenders evaluate restructuring alternatives long before a bankruptcy petition is filed, says Robert Charbonneau at Agentis.


Series

Ballet Makes Me A Better Lawyer

A lifetime of learning and performing ballet taught me that success — whether in dance or practicing law — comes only through hours of thorough preparation, boundless energy and relentless effort, says Sharon Katz-Pearlman at Greenberg Traurig.


Illinois BNPL Law Casts Wide Net Over Loan Providers

A new Illinois law's broad definition of buy now, pay later providers under its new dedicated licensing and supervisory regime notably imposes conduct standards similar to other consumer credit regimes and aggressively looks through a wide range of business activities and arrangements, say attorneys at Ashurst Perkins.


AI Prompt-Injection Hacking Creates Emerging Legal Risks

Last month, the first decision sanctioning a prompt-injection attack aimed at a U.S. court highlights the risks that this tactic — attempting to manipulate artificial intelligence systems by hiding invisible instructions in a document — poses for trade secrets, patent prosecution and other areas, say attorneys at Kilpatrick.


BIA Ruling Calls For Analyzing Advance Parole Travel's Risks

The Board of Immigration Appeals’ recent policy reversal, holding that a temporary trip abroad pursuant to advance parole counts as a departure under the Immigration and Nationality Act, means counsel should assess their clients' immigration history and potential risks of travel before they depart, says attorney Richard Herman.



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Opinion


Justices Gave Energy Industry A Needed Constitutional Reset

Energy companies must understand the regulatory and compliance implications of two recent U.S. Supreme Court rulings reaffirming that agencies must derive their legitimacy from faithfully executing the law, says Brunini Grantham's Curt Hébert, former member of the Federal Energy Regulatory Commission.

A Guiding Principle For The SEC On Exempt Capital Markets

The U.S. Securities and Exchange Commission's recently proposed Regulation Crypto Assets borrows selectively from other capital-raising exemptions while giving crypto issuers materially different terms, and those unexplained differences reveal the need for a regulatory approach of presumptive parity, says Brian Christie at the Crowdfunding Professional Association.



Access to Justice Perspectives


NJ Fingerprint Ruling Shows Forensic Reliability Isn't Static

The New Jersey Supreme Court’s recent State v. Lee decision, holding that developments in forensic science warranted a renewed assessment of fingerprint evidence, reaffirmed the trial judge's role as gatekeeper and underscored that the admissibility of expert testimony is an ongoing inquiry, not a one-time determination, say attorneys at Morgan Lewis.