Expert Analysis

• 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.

• 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.

• FINRA Disputes Highlight Timeliness In Arbitrator Bias Claims

  

  Recent Financial Industry Regulatory Authority litigation over arbitrator neutrality shows that the strength of challenges depends not only on what counsel discovers, but also on how early it is uncovered and how concretely it can be demonstrated, says Dax White at White Law.

• A Defense Attorney Playbook For Challenging Flock Evidence

  

  As law enforcement continues to bring charges based on evidence from Flock cameras and other automated license plate readers, defense counsel should consider four key categories for discovery requests and motions to compel such evidence, says Tamar Lerer at the New Jersey Office of the Public Defender.

• FinCEN Scam Alerts Push Banks To Rethink AML Monitoring

  

  Recent Financial Crimes Enforcement Network guidance on digital asset scams suggests that future anti-money laundering examinations may focus less on whether institutions detect the movement of criminal proceeds and more on whether they can identify fraud schemes before victims suffer catastrophic losses, say attorneys at Ballard Spahr.

• Defending Hospital Antisteering Clauses From DOJ Scrutiny

  

  The Trump administration has recently made clear that pursuing antitrust challenges to antisteering provisions in hospital-insurer contracts is a priority — but a review of similar cases against hospital systems and important precedent from the U.S. Supreme Court illuminates some potential defenses in such cases, says Derek Moore at Rule Garza.

• 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.

• Bid Protest Spotlight: Bait-And-Switch, Scope, Performance

  

  In this month's bid protest roundup, Michael Ols at MoFo offers takeaways from recent decisions examining bait-and-switch protest claims, the scope of a contractor teaming agreement and the use of an affiliate’s past performance.