Public Policy

Expert Analysis

• Altera Could Bolster State Transfer Pricing Scrutiny

  

  The reasoning of the Ninth Circuit's Altera v. Commissioner decision — which the U.S. Supreme Court recently declined to review — could provide state tax authorities with an argument for additional discretion when challenging transfer pricing arrangements between affiliated entities, say attorneys at Eversheds Sutherland.

• High Court Clarifies CFPB's Future, Complicates CFPB's Past

  

  While the U.S. Supreme Court's decision in Seila Law this week leaves the Consumer Financial Protection Bureau standing, the CFPB's director now lacks protection from presidential termination, which brings uncertainty regarding the status of past actions taken by bureau directors who were "unconstitutionally insulated" from termination, says Eric Mogilnicki at Covington.

• Key Points For Airports Considering Rent Relief For Tenants

  

  Airport sponsors are highly motivated to offer rent abatements and other support to hard-hit commercial aeronautical tenants during the COVID-19 downturn — but airports must also keep in mind their obligations to stay economically self-sustaining and to treat similarly situated tenants equally, says Paul Fraidenburgh at Buchalter.

• Are False Accusations Of Racism A Form Of Defamation?

  

  Racism is so repugnant that it is tempting to suggest that falsely labeling someone as racist should be legally considered defamation — but courts and litigants have struggled with such cases given the strict requirements of defamation law, says Phillip Zisook at Schoenberg Finkel.

• Okla. High Court Marijuana Ruling Provides Preemption Guide

  

  The reasoning in the Oklahoma Supreme Court's recent decision finding no conflict between federal law prohibiting the sale and use of marijuana and a potential state law allowing these actions may serve as a road map for other state courts faced with similar issues, say Justin Stern and Joseph Pangaro at Duane Morris.

• 'Settle And Sue' Malpractice Cases Have New Clarity In Calif.

  

  A California state appellate court's recent decision in Masellis v. Law Office of Leslie F. Jensen provides a road map for proving causation and damages in settle-and-sue legal malpractice cases — an important issue of long-standing confusion, says Steven Berenson at Klinedinst.

• SEC Staff Statement Clears Way For Closed-End Funds

  

  While not binding on the U.S. Securities and Exchange Commission or any court, the SEC staff's recent reversal on control share statutes returns essential tools to closed-end fund boards in certain states and may be instrumental in revitalizing the closed-end fund industry for long-term investors and fund sponsors alike, say attorneys at Skadden.

• The Litigation Risks In Main Street Lending Program

  

  Lenders and borrowers in the COVID-19 Main Street Lending Program can steer clear of litigation roadblocks with proactive compliance measures, but the U.S. Department of Justice should also facilitate the program's objectives by issuing a policy statement limiting False Claims Act actions, say Robert Huffman and Caroline Wolverton at Akin Gump.

• A Midyear Look At Key US Sanctions Developments

  

  During an active first half of 2020, the Office of Foreign Assets Control strengthened its sanctions programs, issued new guidance documents and announced several enforcement actions, underscoring that even during a pandemic, sanctions compliance is indispensable, say attorneys at Ropes & Gray.

• Reinsurance Implications Of COVID-19 Biz Interruption Laws

  

  In light of legislative and public pressure in the U.S. and U.K. on insurers to cover business interruption losses related to COVID-19, reinsurers will face new questions regarding their obligation to cover claim payments, say Robin Dusek at Saul Ewing and Susie Wakefield at Shoosmiths.

• Opinion

  'Friends And Family' Insider Trading Theory Is Debatable

  

  While it is widely accepted that securities trading by friends and loved ones of corporate insiders amounts to securities fraud, the theory is based on a generous deference to the U.S. Securities and Exchange Commission under two controversial U.S. Supreme Court precedents, and now may be a uniquely opportune time to challenge them, says Russell Ryan at King & Spalding.

• How Calif. Privacy Rights Act Could Shape Privacy Landscape

  

  If California voters support the California Privacy Rights Act in November, it will become a permanent baseline for California privacy law, increase the already demanding requirements of the California Consumer Privacy Act, and potentially redefine informational privacy for the entire U.S., say Lauren Kitces and Lydia de la Torre at Squire Patton.

• What You Say In Online Mediation May Be Discoverable

  

  Mediation conducted online with participants in different states makes it harder to determine where communications were made, increasing the risk that courts will apply laws of a state that does not protect mediation confidentiality, say mediators Jeff Kichaven and Teresa Frisbie and law student Tyler Codina.

• Why FDA's Proposed Food Standard Principles Are Important

  

  Food manufacturers should carefully consider the U.S. Food and Drug Administration's proposed general principles for creating, modifying and eliminating food standards, because they may complicate branding and advertising efforts for facsimiles of well-known foods, say attorneys at Wilson Sonsini.

• Opinion

  Nonimmigrant Worker Ban Exceeds Presidential Authority

  

  President Donald Trump's recent proclamation banning nonimmigrant workers from entering the U.S. overreaches by failing to include an exception for nonworking family members who pose no threat to U.S. jobs, says Jeffrey Gorsky at Berry Appleman.