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.

• How NYC Consumer Bill Could Expand Private Claims

  

  New York City's proposed Power Act could expose companies to sweeping private claims under its prohibition on unfair, deceptive, and abusive acts and practices, making regulatory compliance reviews and litigation-risk planning essential for businesses serving city residents, says Brian Turetsky at Hinshaw.

• 2nd Circ. Ruling Limits Collection Beyond Restitution Terms

  

  In a case involving a financial fraud conviction, the Second Circuit recently established a clear limit on the government's enforcement power under the Mandatory Victims Restitution Act while highlighting the importance of presenting an economic picture that accurately reflects the defendant's ability to pay at the time of sentencing, say attorneys at Lowenstein Sandler.

• 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.

• Criminal Discovery Practice Must Address Usability Problem

  

  One of the more consequential practical problems in federal criminal defense is that the ability to deliver digital evidence has outpaced the ability of many defense teams to review it, but there are several potential solutions, says Patrick Garrity at Brad Bailey.

• 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.

• How Cos. Should Prepare For Democratic Oversight

  

  Companies should begin preparing now for a new, Democratic-majority Congress — understanding how the oversight landscape has changed in recent years and monitoring leadership elections, new rules and potential select committees, say attorneys at Wiley.

• 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.

• 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.

• Consistency Is Key In Pipeline Incident Investigations

  

  A pipeline release that causes worker injury does not trigger one investigation, but five or more, running on different timetables, under different statutes, and new federal procedures may soon add more complexity — but companies must maintain one centralized record to ensure consistency throughout, say attorneys at Squire Patton.

• Courts Signal Higher FCRA Bar For Identity Theft Claims

  

  Recent rulings adopting a heightened, "objectively and readily verifiable" inaccuracy standard may give credit furnishers stronger defenses to identity theft-related Fair Credit Reporting Act claims in the Ninth Circuit, while requiring them to continue documenting thorough dispute investigations, says Brian Kiolbasa at Ballard Spahr.

• 10 Ways AI Labs Can Limit Antitrust Risks Of Safety Pacts

  

  The OpenAI CEO’s recent call for artificial intelligence laboratories to collectively slow development to allow safety research to catch up invites antitrust scrutiny, but the risks to coordinating competitors can be managed by carefully structuring pacing agreements and layering their approach to compliance, say attorneys at Holland & Knight.

• How Banks Can Better Prepare For Wire Fraud Risks

  

  Recent schemes serve as a reminder that banks can better limit liability for fraudulent wire transfers by documenting commercially reasonable security procedures, following them consistently, and addressing beneficiary name and account number discrepancies, says Shelli Clarkston at Spencer Fane.