Expert Analysis

• SEC's History Undercuts Its 'Back To Basics' Rationale

  

  The current U.S. Securities and Exchange Commission's enforcement recalibration prioritizing fraud over technical violations has led to a drastic decline in enforcement activity, but the philosophy deviates from decades of enforcement that has always promoted compliance with its prophylactic requirements, says Gerald Hodgkins at Covington.

• Planning Personal Phone Collections Before Discovery Begins

  

  For counsel planning a personal phone collection as part of the litigation discovery process, it's important to take early steps to ensure that necessary information will be obtained without exposing unrelated information or running into access issues, says Jeremy Horowitz at MARA Forensics.

• 2 Del. Rulings Show Postclosing Earnout Arrangement Risks

  

  Two recent Delaware Court of Chancery decisions illustrate the contractual and fiduciary duty risks associated with earnout provisions in M&A transactions, offering lessons on allocating postclosing control, drafting enforceable earnout covenants and managing executives whose pay depends on the outcome, says Chris Brown at Taft.

• Opinion

  Judges Must Turn To Merits Earlier To Fix Civil Justice System

  

  The U.S. justice system is long overdue for a cultural shift that encourages judges to engage with the merits of a case from the outset, which would help to cut through procedural complexities and deliver high-quality justice efficiently and at lower cost, says Steven Kayman at Rottenberg Lipman.

• Justices' Intel Ruling Could Aid 401(k) Alternative Asset Push

  

  Following the U.S. Supreme Court's recent oral arguments in Anderson v. Intel, a decision favoring Intel over a prudence claim against fiduciaries based on underperformance by comparing two funds that aren't meaningfully similar would undercut the most common litigation theory against including alternative investments in 401(k) plans, say attorneys at Simpson Thacher.

• 6 Ways RE Projects Can Balance Campus, Commercial Needs

  

  Recent mixed-use campus developments show that housing, research, hospitality, retail and recreation can share infrastructure and institutional identity while operating under diverse requirements, as long as the underlying agreement structures are carefully thought out and drafted, says Bob Burton at Winstead.

• Series

  Open-Water Swimming Makes Me A Better Lawyer

  

  Swimming long distances in open waters is not necessarily an escape from my intellectual property practice, but a complementary discipline that similarly rewards sustained attention, intellectual curiosity, resilience and the ability to pursue a distant objective without losing command of the immediate task, says Christina MacDougall at Morgan Lewis.

• How Groq-Nvidia Suit Tests Venture Capital Exit Math

  

  A recent Delaware Court of Chancery suit concerning Nvidia's acquihire of certain Groq employees highlights that when such deals are challenged, the economic dispute turns on reconciling technology, people, cash and continuing ownership rather than on the headline number, says Ben Dubin at VC Expert Services.

• Opinion

  The Invisible AI Danger That May Undermine Legal Profession

  

  A public database tracking cases involving hallucinations generated by artificial intelligence recently surpassed 2,200 entries, but the bigger risk underlying attorneys’ use of such tools is that they will slowly surrender their judgment to AI and lose analytical skills, says Massachusetts District Court Associate Justice Brian Palmucci.

• Calif. High Court Ruling Eases Path To Excess Coverage Suits

  

  Following a recent California Supreme Court ruling in Fox Paine v. Twin City Fire Insurance, policyholders will have an easier time sustaining suits against excess insurers, leading the latter to settle more frequently, buy back more policies, increase premiums and change policy language, says Charles Grosenick at Brown & Winters.

• Opinion

  A Capital Markets Agenda For The New Congress

  

  When the 120th Congress convenes in January, it should place capital markets issues near the top of its to-do list, with a focus on legislation that can make the public company model more competitive, says David Kaufman at Thompson Coburn.

• How AI Could Help Judges Spot Their Own Biases

  

  In close cases where there’s room for discretion, artificial intelligence could challenge judges’ implicit biases by running counterfactual tests at scale — but any judicial use of such tools would need guardrails, say Arnold Peter at Peter Law and Nancy Rapoport at University of Nevada.

• Assessing Hidden Risk Of Administrative Agency Settlements

  

  Though administrative resolutions of U.S. Securities and Exchange Commission investigations may seem preferable to settled federal court actions, the possibility that private plaintiffs may use commission orders in follow-on litigation poses an extra risk, increasing the importance of negotiating the settlement's form and language, say attorneys at Debevoise.

• Parsing The Lowest SEC Enforcement Stats In Over A Decade

  

  Statistics show that the U.S. Securities and Exchange Commission brought a historically low number of enforcement actions during Paul Atkins' first full fiscal year as chairman, delivering on his promise to reduce enforcement in program areas focused on recordkeeping and other technical violations, say attorneys at Covington.

• 3 Strategies To Reduce AI Sycophancy In Legal Work

  

  The tendency of generative artificial intelligence models to tell users what they want to hear can reinforce attorneys’ confirmation bias when testing the strength of arguments, and it can’t simply be prompted away — but a few practices can help mitigate it, says Michael Ott at Ice Miller.