Expert Analysis

• A Case For Sharing Mediation Statements With Counterparties

  

  In light of a potential growing mediation trend of only submitting statements to the mediator, litigants should think critically about the pros and cons of exchanging statements with opposing parties as it could boost the chances of reaching a settlement, says Arthur Eidelhoch at Eidelhoch Mediation.

• Challenging Standing In Antitrust Class Actions: Injury-In-Fact

  

  As demonstrated in recent cases, the classic injury-in-fact requirement for Article III standing claimed in most antitrust suits is economic harm — and while concrete harm satisfies the requirement, litigants may still be able to challenge whether economic injury has occurred, say Michael Hamburger and Holly Tao at White & Case.

• Calif. Independent Contractor Lessons From Grubhub Suit

  

  California courts have been creating little in the way of clarity when it comes to the employment status of gig workers — and a recent federal court decision in Lawson v. Grubhub illustrates how status may change with the winds of litigation, offering four takeaways for businesses that rely on delivery drivers, say Esra Hudson and Marah Bragdon at Manatt.

• Preparing For Legal Scrutiny Of Data Retention Policies

  

  Two recent cases involving Google and Meta should serve as a call to action for companies to ensure their data retention policies are updated and properly implemented to the degree of being able to withstand judicial scrutiny, especially as more data is generated by emerging technologies, say Jack Kallus and Labeed Choudhry at Kaufman Dolowich.

• Defending Against Fail-Safe Classes With Rule 23

  

  The D.C. Circuit's recent decision in the case of White that there is no stand-alone rule against fail-safe classes deepens an existing circuit split — but defendants can still effectively attack fail-safe class definitions via different procedural arguments based in Rule 23, say Jeffrey Huberman and Andrew Soukup at Covington.

• Opinion

  Attorneys Should Have An Ethical Duty To Advance DEI

  

  National and state bar associations are encouraging attorneys to apply diversity, equity and inclusion practices in the legal profession and beyond, and these associations should take it one step further by formally recognizing ethical duties for attorneys to promote DEI, which could better the legal profession and society, says Elena Mitchell at Moore & Van Allen.

• Data-Driven Insights Are Key To Attracting Today's Clients

  

  As law firm growth slows and competition for clients increases, modern firms must rely on robust data analytics to develop the sector-based expertise and industry insights that clients increasingly prioritize in relationships with counsel, says Lavinia Calvert at Intapp.

• Ghosting In BigLaw: Why Better Feedback Habits Are Needed

  

  Not giving assignments or constructive criticism to junior associates can significantly affect their performance and hours, potentially leading them to leave the firm, but partners can prevent this by asking the right questions and creating a culture of feedback, says Rachel Patterson at Orrick.

• Rebuttal

  Law Needs A Balance Between Humanism And Formalism

  

  A recent Law360 guest article rightly questions the pretextual pseudo-originalism that permits ideology to masquerade as judicial philosophy, but the cure would kill the patient because directness, simplicity and humanness are achievable without renouncing form or sacrificing stare decisis, says Vanessa Kubota at the Arizona Court of Appeals.

• NFT Tax Guidance Shows IRS Interest In Crypto Enforcement

  

  The IRS' first ever guidance addressing the federal income tax treatment of NFTs indicates the agency could take a potentially aggressive stance in enforcing U.S. tax laws in the NFT and crypto spaces, which could have a significant impact on the self-directed IRA market, say attorneys at BakerHostetler.

• What ACA Preventive Care Ruling Means For Employers

  

  Though a Texas federal court's recent ruling in Braidwood v. Becerra paves the way for employers to reimpose cost-sharing requirements on preventive care, companies considering making these changes to their group health and welfare plans should first analyze the financial and social impacts, says Rachel Shim at Holland & Knight.

• Short Message Data Challenges In E-Discovery

  

  As short message platforms increasingly dominate work environments, lawyers face multiple programs, different communication styles and emoji in e-discovery, so they must consider new strategies to adapt their processes, says Cristin Traylor at Relativity.

• What's Next After High Court Stay On Abortion Pill Ruling

  

  The U.S. Supreme Court's recent stay of a Texas federal court's order invalidating mifepristone's U.S. Food and Drug Administration approvals provides a welcome antidote to the flurry of litigation surrounding the abortion drug, but its ultimate fate hinges on how the Fifth Circuit and Supreme Court will rule on the merits, says Eric Alexander at Reed Smith.

• Opinion

  Thomas Report Is Final Straw — High Court Needs Ethics Code

  

  As a recent report on Justice Clarence Thomas' ongoing conflicts of interest makes evident, Supreme Court justices should be subject to an enforceable and binding code of ethics — like all other federal judges — to maintain the credibility of the institution, says Erica Salmon Byrne at Ethisphere.

• Structured Settlements In Workers' Comp Cases: A Win-Win

  

  With interest rates rising, workers' compensation benefits decrease in price, so structured settlements in personal injury litigation may benefit both injured workers and the employer or carrier, and ultimately help settle complicated cases by bridging the gap between the demand and offer in negotiations, says Julio Martinez at Gilson Daub.