Expert Analysis


Justices Seem Skeptical Of USPTO's Attorney Fee Arguments

At Oct. 7 oral arguments before the U.S. Supreme Court in Peter v. NantKwest, the justices seemed unsympathetic to the U.S. Patent and Trademark Office's position that "expenses" in Section 145 of the Patent Act includes the agency's attorney fees, which applicants must pay even if they prevail, says Lina Xing of LexShares Inc.


How Emotionally Intelligent AI Could Assist With E-Discovery

While artificial intelligence has already revolutionized the e-discovery field, the development of emotionally intelligent AI promises to explore data in an even more nuanced and human way, thereby further reducing the burden on legal teams, say Lisa Prowse and Brian Schrader at e-discovery services provider BIA.


FinCEN 'Travel Rule' Update Sets Challenges For Crypto Cos.

It is unclear how the virtual currency sector will find a practical way to comply with the recent expansion of the Financial Crimes Enforcement Network regulation known as the travel rule, but any solution is likely to have both unintended consequences and unintended benefits, say attorneys with King & Spalding.


How The Opportunity Zone Rules Can Work For Entrepreneurs

Recent guidance from the U.S. Department of the Treasury establishes three safe harbors businesses can satisfy to be considered as operating in an opportunity zone. Doug Jones at McGinnis Lochridge provides illustrative examples of what may turn out to be common fact patterns of entrepreneurs taking advantage of the program.


Excerpt from Lexis Practice Advisor

Despite Legalization, Marijuana Usage Is Risky For Ill. Tenants

For many Illinois residents, the passage of the Cannabis Regulation and Tax Act was cause for celebration. However, the fact that marijuana remains illegal at the federal level, combined with the Illinois Eviction Act, means that marijuana use can still lead to eviction, says Richard Toboz of Heavner Beyers.


Justices' View Of Their Role May Influence LGBTQ Bias Cases

Arguments at the U.S. Supreme Court on Oct. 8 in a trio of Title VII discrimination cases involving gay and transgender workers show the decisions may hinge on whether the justices feel they should ensure case law evolves to remain relevant or interpret the legislature’s intent, say Donna McElroy and Katina Zampas at Dykema.


4 Potential Structuring Options For BVI Acquisitions

While onshore M&A procedures are often cumbersome and time-consuming, the British Virgin Islands offer a range of flexible yet familiar structuring options for facilitating takeover transactions, says Rebecca Jack of Appleby.


A Weak Link In Consumers' FDA Test Claims

As class action plaintiffs scrutinize more consumer product labels, they increasingly allege that their own U.S. Food and Drug Administration-compliant testing has obtained results contrary to what the product says, presenting defendants with an opportunity to scrutinize claims at the threshold, say Joshua Fougere and Jacquelyn Fradette at Sidley.


Sports Gambling Compliance: Big Money Worth The Wager

As America teeters on the edge of a sports betting revolution, both prudent betting operators and the banks they use should roll out tailored compliance programs that effectively manage reputational, regulatory and business risks to avoid civil or criminal penalties, say attorneys at Cadwalader.


PayPal Case Illustrates Difficulty Of Avoiding CMA Penalties

The U.K. Competition and Markets Authority's recent fine against PayPal for violating U.K. merger control rules — despite the company's attempts to put safeguards in place — demonstrates how rigid the CMA can be when it comes to initial enforcement orders, say attorneys at Fried Frank.


State Net

States May Slow Spread Of Vehicle Subscription Services

Motor vehicle subscription services — similar to auto leases, except with no long-term commitment, the ability to change vehicles periodically, and insurance and maintenance bundled in — have been embraced by some automakers, insurers and consumers, but face potential roadblocks from state lawmakers and regulators, says Korey Clark of State Net Capitol Journal.


Revising Cloud Contracts In Light Of Capital One Cyberattack

In 2019, there have been 3,494 cyberattacks against financial institutions, including, most notably, Capital One. Until regulatory action is taken, financial institutions, which are on their own when it comes to addressing potential cloud service risks, should incorporate liability and security provisions into cloud service contracts, say Nicholas Smith and Rita Ganguli of Milbank.


Is 'The Government Said I Could' A Civil Liability Defense?

A Virginia federal court's recent decision in Southern Appalachian Mountain Stewards v. Red River Coal Co., clearing the defendant of liability for certain nonpermitted discharges, raises an issue relevant to any business operating in a highly regulated space: reliance on government regulators as a defense to civil liability, says Mitchell Morris of Butler Snow.


2nd Circ. Ruling May Cause Int'l Discovery Flurry In NY

The Second Circuit's recent Section 1782 decision in Application of Antonio Del Valle Ruiz could be particularly burdensome for New York–based offices of multinational companies, which may now be compelled to produce documents located abroad despite not being involved in any domestic litigation, say attorneys at Ropes & Gray.


Stats Show Expert Declarations Can Help Avoid AIA Institution

An examination of more than 1,300 Patent Trial and Appeal Board cases, analyzing the effect of expert declarations on America Invents Act institution rates, reveals that including expert declarations reduces the aggregate institution rate for inter partes and post-grant reviews, says Brian Koide of Dunlap Bennett.


9th Circ. Ruling Returns Stability To Joint Employer Test

By applying a traditional control-type test to hold that McDonald’s was not a joint employer of its franchisee’s employees, the Ninth Circuit last week in Salazar v. McDonald’s injected a welcome dose of clarity and common sense into a volatile area of law, say Andrew Murphy and Lauren Linderman at FaegreBD.


Chinese Acquisitions Even More Uncertain In New CFIUS Era

While hostility toward Chinese-led investment in U.S. companies is not new, the proposal expanding the Committee on Foreign Investment in the United States' authority to scrutinize such deals casts further doubt over how many inbound Chinese investments in the U.S. will actually close, says Jing Zhao at Saul Ewing.


The Number Of Cannabis-Centric Patents Is Getting High 

With public support for cannabis legalization at an all-time high, data indicate that U.S. cannabis-centric patents and patent applications are being issued and published in record numbers, and, if the 2019 issuance pace holds, we can expect an increase of over 41% from 2018, says Matthew Kamps of FaegreBD.


Unpacking The Harvard Admissions Ruling And What's Next

While a Massachusetts federal judge's decision last week in Students for Fair Admissions v. Harvard is a welcome development for institutions that rely on race-conscious admission practices, it also illustrates the exhaustive steps needed to justify what are often modest uses of race, say Scott Schneider and Paige Duggins-Clay at Husch Blackwell.


3 Key Issues In Private Equity Add-On Deals

Private equity add-on acquisitions have increased every year since 2013. In this brief video, Eric Schwartzman at Cooley explains the unique issues that such deals introduce for buyers, sellers and their advisers.




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


High Court Should Allow Resentencing For Juvenile Offenders

While prosecuting the D.C. sniper in 2006, I spent hours with his 17-year-old accomplice, Lee Boyd Malvo. Since working with Malvo and other juvenile offenders, I have come to believe the U.S. Supreme Court should follow its own precedent and allow resentencing hearings for minor offenders serving life without parole, says Vivek Chopra of Perkins Coie.

Precedent Is A Starting Point, Not An Ending Point

A strict adherence to precedent is inconsistent with both of the major theories of constitutional interpretation prevalent today.



Access to Justice Perspectives


Core Rights Of Accused At Issue In High Court's New Term

The U.S. Supreme Court's upcoming decisions in several criminal cases this term will determine whether certain rights of the accused — some that many people would be surprised to learn are unsettled — are assured by the Constitution, say Harry Sandick and Jacob Newman at Patterson Belknap.



Webinars


Operationalizing The California Consumer Privacy Act

In this hour-long webinar co-hosted by LexisNexis and Hogan Lovells, attorneys Mark Brennan and Bret Cohen discuss the impact of the California Consumer Privacy Act, explain key definitions, and offer practical guidance for navigating the groundbreaking statewide privacy law that becomes effective Jan. 1, 2020.