Expert Analysis


Ohio Vaccination Bill Comes With Ambiguity For Employers

Ohio's recently introduced House Bill 268 would effectively bar employers from mandating employee vaccinations as a condition of employment, but the bill's language leaves employers in the dark on aspects like the definition of "adverse employment actions" and exceptions for undue hardship, says Anthony Dick at Fisher Phillips.


Changes Bring Structure To SEC Settlement Waiver Process

The U.S. Securities and Exchange Commission's decision to allow firms to make settlements with the regulator contingent on requests to waive disqualifications under the federal securities laws gives firms more clarity around the collateral consequences of offers of settlement, say attorneys at Sidley Austin.


What EPA Plan To Count Emission Decreases Means For Cos.

The U.S. Environmental Protection Agency recently proposed a rule explicitly allowing consideration of emissions decreases from a project in determining whether the project causes a significant emissions increase from an existing source. This makes it more likely that state regulators will follow the same approach, says Andrew Sawula of Schiff Hardin.


Can Text Messages Or An Airbag Cause A Suicide?

An infamous 2017 criminal case in Massachusetts and a recent civil case in South Carolina both hinged on whether other parties can be responsible for someone's suicide. Both cases suggest a trend toward applying traditional tort principles, and consideration of special factors suggesting the foreseeability of suicide, say Christopher Collier and Michael Arndt of Hawkins Parnell.


Considering Disclosure Risks In Sensitive Product Recalls

The New York Supreme Court's recent decision in Otsuka America v. Crum & Forster highlights the balancing act between comprehensive disclosures during product recall efforts and the use of those communications in subsequent insurance or personal injury lawsuits, say Syed Ahmad and Geoffrey Fehling of Hunton.


Calif. Prop C Taxpayers Should File Protective Refund Claims

As the two San Francisco Proposition C cases wend their way through the California appellate court system, taxpayers should utilize the city’s refund procedures to delay having to bring a protective refund action in Superior Court, say Richard Nielsen and Robert Merten at Pillsbury.


5th Circ. Liquor Sales Ruling Skirts Commerce Clause Issues

The Fifth Circuit's decision in Walmart v. Texas Alcoholic Beverage Commission, upholding a Texas law that bans public ownership of retail liquor stores, suggests that there will continue to be tension between states’ 21st Amendment rights to regulate liquor within their borders and the U.S. Constitution's commerce clause, says Louis Terminello at Greenspoon Marder.


Uncertainty On Hospital Disproportionate Share Pay Eligibility

In two recent disputes over whether hospitals serving a disproportionate number of low-income patients qualify for additional payments under Medicare and Medicaid, hospitals can claim one tentative win at the U.S. Supreme Court and one loss at the D.C. Circuit, say Stuart Gerson and Rob Wanerman of Epstein Becker.


Reinforcing Insurance Coverage For Gov't Investigations

The Superior Court of Delaware's recent decision in Conduent v. AIG Specialty Insurance adds to the authority that government investigations satisfy the "claim" and "wrongful act" definitions in claims-made professional liability insurance policies, and is instructive as to how policyholders can strengthen their coverage, say Donovan Hicks and Brian Scarbrough of Jenner & Block.


CFTC's Silence Stings In Wheat Futures Manipulation Case

The U.S. Commodity Futures Trading Commission v. Kraft and Mondelez case was expected to clarify new standards for prosecuting market manipulation, but instead ended in a settlement that failed to provide any guidance or context, and even barred the CFTC from publicly commenting on the case, says Braden Perry at Kennyhertz Perry.


Fed. Circ.'s Arduous Legal Landscape For Diagnostic Patents

The Federal Circuit's recent opinion in Genetic Veterinary Sciences v. Laboklin continues the trend of invalidating claims to diagnostic inventions as being directed to patent-ineligible natural phenomena, and it highlights the challenges facing innovators attempting to protect such inventions, say attorneys at King & Spalding.


Coast Guard Cybersecurity Guidance Puts Shippers On Notice

Recent cyberattacks have spurred the U.S. Coast Guard to publish a marine safety information bulletin and a marine safety alert addressing vulnerabilities of shipboard computer systems, potentially triggering significant legal obligations for owners and operators, say attorneys at Husch Blackwell.


3 Tech Competition Concerns In The EU And Australia

Recent cases involving major technology companies and their acquisition of smaller firms have called international attention to the adequacy of competition policy frameworks, and recent proposals in Europe and Australia reveal the onset of an interventionist approach from regulators, say analysts at Cornerstone Research.


Workshop Marks Start Of FTC Interest In Gaming 'Loot Boxes'

Earlier this month, the Federal Trade Commission held a full-day workshop to address consumer protection issues regarding video game "loot boxes" — randomized or surprise in-game virtual rewards that players buy or earn — and joined a growing list of policymakers to consider consumer protection issues in this area, say Janis Kestenbaum and Ariel Glickman at Perkins Coie.


Anti-Discrimination Essentials From New OFCCP Guidance

Recent guidance from the Office of Federal Contract Compliance Programs contains key contractor compliance points regarding practical significance in equal employment opportunity analysis, validation of employee selection procedures, and pay analysis groupings, say Lisa Harpe and Sarah Layman at DCI Consulting.


House And Senate Pipeline Bills: Ships Passing In The Night

The Pipeline Safety Act is up for reauthorization this year, and both the Democratic House and Republican Senate have produced draft legislation. But it is unlikely that Congress will meet the reauthorization deadline of Sept. 30, because the bills have almost no common ground, say attorneys at Troutman Sanders.


A Robust Federal Consumer Protection Law May Be Ahead

The U.S. Department of Justice, the Federal Trade Commission and the Consumer Financial Protection Bureau all recently announced pushes into data privacy and security through consumer protection enforcement, suggesting that they could be developing the foundation for a new U.S. federal privacy statute, say Brad Elbein and Linda Priebe of Culhane Meadows.


Excerpt from Lexis Practice Advisor

Breaking Down The SEC's Regulation Best Interest

The U.S. Securities and Exchange Commission's recently adopted Regulation Best Interest represents a significant rulemaking for the retail financial services industry that will require significant time and resources to make the necessary operational and compliance changes, say Jay Baris and Russell Sacks at Shearman & Sterling.


Issues To Avoid In Fintech, Consumer Financial Services M&A

Fintech-specific considerations and persistent regulatory scrutiny highlight the need to understand the risks involved — and necessary due diligence — before acquiring a consumer financial products and services business, says Jonathan Pompan at Venable.


ADP Cases Show Pitfalls Of One-Size-Fits-All Noncompetes

A New Jersey appellate court's recent opinion in six noncompete cases filed by ADP illustrates the challenges in adopting a successful multijurisdictional restrictive covenant program, but employers can avoid many of these problems with careful planning, say Henry Perlowski and Edward Cadagin at Arnall Golden.




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.





Op-Eds


New Ohio Energy Law Impairs Competition, Reverses History

Ohio’s governor recently signed legislation that will subsidize four uncompetitive electricity-producing nuclear and coal plants, remove financial incentives to build more renewable energy projects and curtail energy efficiency programs. The law turns back the clock at the expense of ratepayers, says Richard Drom of Eckert Seamans.

Recent IRS Net Operating Loss Advice Is Flawed

Last month’s Internal Revenue Service chief counsel advice addressing the interplay between net operating loss and charitable contribution carryover rules relies on irrelevant authority and scant reasoning, contravening 2018's tax law reforms, say attorneys at Eversheds Sutherland.



Access to Justice Perspectives


Electronic Monitoring Technology Must Be Regulated

Based on my research into the electronic monitoring technologies that are increasingly becoming part of the criminal justice system, it is clear that they must be regulated, just as medical devices are, says Shubha Balasubramanyam of the Center for Court Innovation.



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.