Expert Analysis


The Int'l, Federal And State Taxation Forecast For 2020

Attorneys at Steptoe & Johnson look at U.S. international, federal and state taxation, including legislative, regulatory and controversy developments expected in 2020.


DOJ's Trade Security Reporting Policy Boosts Transparency

Recent guidance from the U.S. Department of Justice's National Security Division on the voluntary self-disclosure part of its sanctions and export controls enforcement program continues the DOJ’s movement toward increased transparency, but leaves unanswered questions about how the policy will be applied in practice, say attorneys at Paul Hastings.


Estimating Antitrust Impact, Damages Via Natural Experiments

Several federal courts have recently accepted the difference-in-differences methodology to estimate antitrust impact and damages via natural experiments, demonstrating the method's validity, says James Nieberding of North Coast Economics.


Ritzen Creates Uniformity On Bankruptcy Stay Appeals Timing

The U.S. Supreme Court ruled last week in Ritzen v. Jackson Masonry that orders determining motions for relief from the automatic stay in bankruptcy cases must be appealed within 14 days of their entry, which will ensure greater certainty in the overall outcomes of cases, says Elyssa Kates at BakerHostetler.


Stark Law Uncertainty Follows 3rd Circ.'s UPMC Opinion

The Third Circuit recently amended its September decision in U.S. v. University of Pittsburgh Medical Center, removing a controversial interpretation of the volume-or-value standard under the Stark Law. However, the court's approach is not in line with the Centers for Medicare & Medicaid Services' analysis regarding indirect compensation arrangements, says Karl Thallner of Reed Smith.


#MeToo Is Much More Than Last Year's News

Employers wondering whether #MeToo is still relevant should recognize that it is a continuous equity movement that includes pay, diversity and inclusion efforts at both the worker and executive levels, say attorneys at Epstein Becker.


3 Federal Court Rulings Highlight Key Privilege Lessons

Recent decisions from federal courts in Illinois, Delaware and New York illustrate the importance of proactively thinking about attorney-client privilege issues such as proper procedures for conducting a review, how common interest privilege can be invoked and when public relations firm communications are protected, say attorneys at Paul Weiss.


ITC Decision Shows Importance Of Public Interest For Biotech

In its recent Certain Microfluidic Devices decision, the U.S. International Trade Commission allowed patent-infringing products necessary for ongoing research to be imported, highlighting the importance the so-called public interest factors can play in ITC investigations in the biotech context, say Matt Rizzolo and Rachael Bacha of Ropes & Gray.


Board Composition Leads 2020 Corporate Governance Issues

This year corporate board nominating and governance committees may face increased pressure as investor demands focus on issues such as the number of corporate boards on which directors serve, board refreshment and diversity, say attorneys at Cleary.


Courts’ Deference To DOL Joint Employer Rule Is Up In The Air

Employers should use the U.S. Department of Labor’s narrowed standard for determining joint employer status under the Fair Labor Standards Act as a guidepost until federal courts weigh in on whether and to what extent they will defer to the new rule, say Alexander Passantino and Kevin Young at Seyfarth.


Iran Airspace Bans May Lead To EU Passenger Claims

After the recent killing of Qasem Soleimani and the downing of Ukraine International Airlines Flight 752, the commercial aviation sector must consider how resulting restrictions on air travel may affect passenger compensation claims under European Union rules, says James Jordan of Holman Fenwick.


What UK Panel's Cryptoasset Update Does And Doesn't Clarify

A recent legal statement from the U.K. Jurisdiction Taskforce clearing up the status of cryptoassets and smart contracts reaffirms the flexibility of English law, but leaves matters of data protection and treatment of related assets in question, say Mark Dawkins and Jenny Arlington of Akin Gump.


4 Cases That Will Shape Clickwrap Litigation In 2020

Four recent cases involving companies' online user agreements will have major impacts on the ways courts assess evidence in such cases, the types of evidence that companies must bring in order to enforce their terms, and the types of arguments that both defendants and plaintiffs will make, says Brian Powers of PactSafe.


Key Trends In Energy Antitrust Enforcement And Litigation

Antitrust agencies and private litigants continued to focus on the energy industry in 2019, and new antitrust policy initiatives announced by the U.S. Department of Justice last year will offer energy companies opportunities to avoid prosecution in certain cases, say attorneys at Vinson & Elkins.


Don't Let Moonlighting Undermine Employment Visa Status

Employees with nonimmigrant visas should be educated about the parameters of lawful U.S. employment because they may not know that earning extra income through a side gig could render them ineligible for permanent residence down the road, say Douglas Halpert and Jessica Cadavid at Hammond Law Group.


Bid Protest Spotlight: 2019's Most Noteworthy Decisions

In this month's bid protest roundup, Victoria Angle at MoFo highlights two December decisions from the U.S. Government Accountability Office, looks back at five of the most interesting bid protests of 2019 and provides a few takeaways from the GAO's fiscal year 2019 report.


Climate Law Brings Challenges For NYC Co-Ops And Condos

New York City's Climate Mobilization Act leaves several unanswered questions for co-ops and condos, such as what will happen to buildings with rent-regulated units, how buildings will pay for compliance costs, and how building owners will divide CMA responsibilities with tenants, says William McCracken of Ganfer Shore.


Anti-Ransomware Strategies Must Evolve With Threat

With a recent FBI report warning of ransomware that encrypts and exfiltrates data, it is now more important than ever for businesses and governments to assess and implement prevention and preparation strategies, including an offensive litigation approach, says John Gray of Lewis Roca.


PCAOB's 2019 Enforcement Actions Hint At 2020 Focus

The Public Company Accounting Oversight Board's modest increase in enforcement actions in 2019 suggests the board's 2020 priorities will include non-U.S. firms, quality control standards, workpaper accuracy and independence violations, says Robert Cox of Briglia Hundley.


Ohio Tax Talk: Taking Advantage Of Sustainability Incentives

The state of Ohio is using its tax code and other financial incentives to promote sustainable business investment — which should be of interest to businesses facing pressure from regulators, investors and customers to focus on environmental impacts, say attorneys at Frost Brown.




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.




Pursuing Wellness

In this Expert Analysis series, leaders at some of the law firms that committed to the American Bar Association's 2018 pledge to improve mental health and well-being in the legal industry explain how they put certain elements of the initiative into action.




Op-Eds


MLB Must Punish Houston Astros Players To Restore Integrity

In his report on the Houston Astros sign-stealing scandal, Major League Baseball Commissioner Rob Manfred acknowledged that the cheating was driven by players, yet he did not punish any of them — for reasons that seem fatuous at best, says Ronald Katz of GCA Law Partners.

Time To Factor Families Into New York's Wrongful Death Law

New York state lawmakers should pass legislation that would allow consideration of a family’s mental anguish and emotional loss in wrongful death litigation so that courts are not limited to calculations of a decedent's economic worth or predeath pain and suffering, says David Perecman of The Perecman Firm.



Access to Justice Perspectives


To Honor The Promise Of Liberty, Reform Pretrial Detention

As criminal justice reform advocates focus on the critical need to reduce unjust pretrial detention, jurisdictions must commit to a range of policy changes that include, but also go beyond, risk assessments, says former Wisconsin Judge Jeffrey Kremers.