Expert Analysis

• SEC Report Puts Climate Investor Coalitions On Notice

  

  The U.S. Securities and Exchange Commission's recent report on its investigation of Climate Action 100+ members' conduct in connection with the 2021 ExxonMobil proxy contest sends a clear warning that coordinated engagement by investors, even through an intermediary, could create a reportable group that jeopardizes passive investor status, say attorneys at Cleary.

• Opinion

  NY Must Limit Interlocutory Appeals

  

  The New York Legislature should act to reduce the Appellate Division's outsize caseload of interlocutory civil appeals in order to develop a faster, less expensive, fairer and more coherent civil justice system, says Judge Gerald Lebovits.

• 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.

• Del. Dispatch: No Safe Harbor For Another Conflicted Deal

  

  The Delaware Court of Chancery's recent decision preliminarily enjoining a planned recapitalization of Cloudflare that would preserve the control of the company by its founder-controlling stockholders highlights that Delaware's new safe harbor statute for conflicted transactions doesn't protect founders or independent directors from liability, say attorneys at Fried Frank.

• How Feds' Shifting Guidance Hits Bank-Fintech Partnerships

  

  A slew of recent Federal Deposit Insurance Corp. and Office of the Comptroller of the Currency reforms will ultimately give banks and fintechs more flexibility in third-party oversight and supervisory information sharing, but institutions still must document risk-based decisions and engage proactively with regulators, say attorneys at Husch Blackwell.

• What To Watch As Florida Stablecoin Framework Takes Shape

  

  As Florida's new payment stablecoin licensing framework enters its second month, requiring issuers to map applicable state and federal obligations and account for certification and rulemaking uncertainty, businesses should build core controls while keeping launch plans and contracts flexible, says Rob Brighton at Becker.

• 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.

• What 3 Cases Reveal About Solar Co. Financial Disclosures

  

  Three recent securities suits involving Nextracker, SolarEdge and Enphase illustrate the challenges of evaluating financial representations in the solar industry, raising a common issue: Financial projections cannot be fully understood without examining the operating information and assumptions supporting them, says Rand Manasse at Green Lane Partners.

• Opinion

  Justices Must Protect Enforcement In DOL Fine Power Case

  

  In deciding whether the U.S. Department of Labor’s in-house court has the power to decide monetary penalties arising from H-2A violations, the U.S. Supreme Court must preserve a practical route to relief for workers and a constitutional forum for employers to contest liability, say Michelle Dromgold-Sermen, Jessica Vasquez-Luna and Julissa Barrera at George Mason University.

• 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.

• SEC's 'Innovation Exemption' Isn't A Substitute For Legislation

  

  The U.S. Securities and Exchange Commission's recently announced innovation exemption, allowing trading in certain tokenized securities on permissioned on-chain trading platforms, is a temporary and conditional solution for a specific market model, not a general exemption for on-chain securities trading, says Niels Lemmers at Flow Traders.