Expert Analysis

• Gilead Drug Ruling Creates Corporate Governance Dilemma

  

  If upheld, a California state appellate court's decision — finding that Gilead is liable for delaying commercialization of a safer HIV drug to maximize profits on another drug — threatens to undermine long-standing rules of corporate law and exposes companies to liability for decisions based on sound business judgment, says Shireen Barday at Pallas.

• Class Action Law Makes An LLC A 'Jurisdictional Platypus'

  

  The applicability of Section 1332(d)(10) of the Class Action Fairness Act is still widely misunderstood — and given the ambiguous nature of limited liability companies, the law will likely continue to confound courts and litigants — so parties should be prepared for a range of outcomes, says Andrew Gunem at Strauss Borrelli.

• Jarkesy Ruling May Redefine Jury Role In Patent Fraud

  

  Regardless of whether the U.S. Supreme Court’s Jarkesy ruling implicates the direction of inequitable conduct, which requires showing that the patentee made material statements or omissions to the U.S. Patent and Trademark Office, the decision has created opportunities for defendants to argue more substantively for jury trials than ever before, say attorneys at Cadwalader.

• 3 Leadership Practices For A More Supportive Firm Culture

  

  Traditional leadership styles frequently amplify the inherent pressures of legal work, but a few simple, time-neutral strategies can strengthen the skills and confidence of employees and foster a more collaborative culture, while supporting individual growth and contribution to organizational goals, says Benjamin Grimes at BKG Leadership.

• How Justices' E-Rate Decision May Affect Scope Of FCA

  

  The U.S. Supreme Court’s eventual decision in Wisconsin Bell v. U.S., determining whether reimbursements paid by the E-rate program are "claims" under the False Claims Act, may affect other federal programs that do not require payments to be made by the U.S. Department of the Treasury, says David Colapinto at Kohn Kohn.

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  After Chevron: Don't Let Loper Lead To Bank Compliance Lull

  

  Banking organizations are staring down a period of greater uncertainty over the next few years as the banking agencies and industry navigate the post-Chevron world, but banks must continue to have effective compliance programs in place even in the face of this unpredictability, say Lee Meyerson and Amanda Allexon at Simpson Thacher.

• E-Discovery Quarterly: Rulings On Hyperlinked Documents

  

  Recent rulings show that counsel should engage in early discussions with clients regarding the potential of hyperlinked documents in electronically stored information, which will allow for more deliberate negotiation of any agreements regarding the scope of discovery, say attorneys at Sidley.

• Enron Law Is Still Threat To Execs After Justices' Jan. 6 Ruling

  

  While the U.S. Supreme Court’s recent Fischer v. U.S. decision is a setback for prosecutors’ obstruction charges against Jan. 6 defendants, it also represents a strong endorsement of the post-Enron Sarbanes-Oxley Act’s original purpose, serving as a corporate compliance reminder for executives, say Michael Peregrine and Ashley Hoff at McDermott.

• Loper Bright Limits Federal Agencies' Ability To Alter Course

  

  The U.S. Supreme Court's recent decision to dismantle Chevron deference also effectively overrules its 2005 decision in National Cable & Telecommunications Association v. Brand X, greatly diminishing agencies' ability to change regulatory course from one administration to the next, says Steven Gordon at Holland & Knight.

• Calif. Out-Of-State Noncompete Ban Faces Several Hurdles

  

  California's attempt to bolster its noncompete law has encountered significant procedural and constitutional challenges, and litigating parties must carefully analyze not only the restrictive covenants contained in their agreements, but also the forum-selection and choice-of-law provisions, say Jennifer Redmond and Gal Gressel at Sheppard Mullin.

• 2nd Circ. Case Reinforces Need For Advance Notice Bylaws

  

  The Second Circuit's recent decision in Nano Dimension v. Murchinson illustrates that Section 13(d) of the Exchange Act is a square peg for a round hole, and that advance notice bylaws are far better at protecting against undisclosed coordination among activist shareholders, say attorneys at Morgan Lewis.

• What Cos. Should Note In DOJ's New Whistleblower Pilot

  

  After the U.S. Department of Justice unveiled a new whistleblower pilot program last week — continuing its efforts to incentivize individual reporting of misconduct — companies should review the eligibility criteria, update their compliance programs and consider the risks and benefits of making their own self-disclosures, say attorneys at Skadden.

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  After Chevron: New Lines Of Attack For FCA Defense Bar

  

  Loper Bright has given defense counsel new avenues to overcome the False Claims Act elements of falsity and scienter, as any FCA claim based upon ambiguous statutory terms can no longer stand solely on agency regulations to establish the statute's meaning, which is itself necessary to satisfy the FCA's basic requirements, says Elisha Kobre at Bradley Arant.

• Autonomy Execs' Acquittal Highlights Good Faith Instruction

  

  The recent acquittal of two former Autonomy executives demonstrates that a good faith jury instruction can be the cornerstone of an effective defense strategy in white collar criminal cases, in part because the concept of good faith is a human experience every juror can relate to, says Sara Kropf at Kropf Moseley.

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  Teaching Scuba Diving Makes Me A Better Lawyer

  

  As a master scuba instructor, I’ve learned how to prepare for the unexpected, overcome fears and practice patience, and each of these skills – among the many others I’ve developed – has profoundly enhanced my work as a lawyer, says Ron Raether at Troutman Pepper.