Expert Analysis


Texas High Court Decision Could Reshape Contract Damages

The Texas Supreme Court recently held that an order of specific performance for a real property transaction doesn't preclude a damage award, establishing a damages test for this scenario while placing the onus on lower courts to correctly determine the proper remedies and quantum of damages, say attorneys at Fried Frank.


The Patent Eligibility Eras Tour: 11 Years Of Post-Alice Tumult

A survey of recent twists and turns in patent eligibility law highlights the confusion created by the U.S. Supreme Court's 2014 Alice decision and reveals that the continually shifting standards have begun to diverge in fundamental ways between the Federal Circuit and the U.S. Patent and Trademark Office, says Michael Shepherd at Fish & Richardson.


How States Are Regulating Health Insurers' AI Usage

The absence of a federal artificial intelligence framework positions states as key regulators of health insurers’ AI use, making it important for payors and service providers to understand the range of state AI legislation being passed in California and elsewhere, and consider implementing an AI-focused compliance infrastructure, say attorneys at Ropes & Gray.


Export Misconduct Resolutions Emphasize BIS, DOJ Priorities

The U.S. Department of Justice's and Bureau of Industry and Security's recently resolved parallel enforcement actions against semiconductor technology company Cadence Design demonstrate the agencies' prioritization of penalties for export control violations involving China, as well as the importance of voluntary self-disclosure, say attorneys at Fenwick.


Disney Art Suit Will Test Recent AI Fair Use Boundaries

While the first U.S. rulings to address the issue recently held that it's fair use for generative artificial intelligence models to train on certain copyrighted books without permission, Disney v. Midjourney, filed in June, will test the limits of the fair use framework in a visual art context, says Rob Rosenberg at Moses & Singer.


How To Navigate NYC's Stricter New Prenatal Leave Rules

On top of the state's prenatal leave law, New York City employers now face additional rules, including notice and recordkeeping requirements, and necessary separation from sick leave, so employers should review their policies and train staff to ensure compliance with both laws, say attorneys at BakerHostetler.


Location Data And Online Tracking Trends To Watch

Regulators and class action plaintiffs are increasingly targeting companies' use of online tracking technologies and geolocation data in both privacy enforcement and litigation, so organizations should view compliance as a dynamic, cross-functional responsibility as scrutiny becomes increasingly aggressive and multifaceted, say attorneys at Arnold & Porter.


Justices Could Clarify Post-Badgerow Arbitration Jurisdiction

If the U.S. Supreme Court grants a certiorari petition in Jules v. Andre Balazs Properties, it could provide some welcome clarity on post-arbitration award jurisdiction, an issue lingering since the court's 2022 decision in Badgerow v. Walters, says David Pegno at Dewey Pegno.


HHS Plan To Cut Immigrant Benefits Spurs Provider Questions

A recent notice from the U.S. Department of Health and Human Services identifying new federal public benefit programs for which nonqualified aliens are not eligible may have a major impact on entities that participate in these programs — but many questions remain unanswered, say attorneys at Foley.


A Simple Way Courts Can Help Attys Avoid AI Hallucinations

As attorneys increasingly rely on generative artificial intelligence for legal research, courts should consider expanding online quality control programs to flag potential hallucinations — permitting counsel to correct mistakes and sparing judges the burden of imposing sanctions, say attorneys at Lankler Siffert & Wohl and Connors.


Strategies For ICE Agent Misconduct Suits In The 11th Circ.

Attorneys have numerous pathways to pursue misconduct claims against U.S. Immigration and Customs Enforcement agents in the Eleventh Circuit, and they need not wait for the court to correct its misinterpretation of a Federal Tort Claims Act exception, says Lauren Bonds at the National Police Accountability Project.


DOJ Consumer Branch's End Leaves FDA Litigation Questions

With the dissolution of the U.S. Department of Justice's Consumer Protection Branch set to occur by Sept. 30, companies must carefully monitor how responsibility is reallocated for civil and criminal enforcement cases related to products regulated by the U.S. Food and Drug Administration, say attorneys at Foley & Lardner.


Surveying The Changing Overdraft Fee Landscape

Despite recent federal moves that undermine consumer overdraft fee protections, last year’s increase in fee charges suggests banks will face continued scrutiny via litigation and state regulation, says Amanda Kurzendoerfer at Bates White.


What's At Stake In High Court Review Of Funds' Right To Sue

The U.S. Supreme Court's upcoming review of FS Credit Opportunities v. Saba Capital Master Fund, a case testing the limits of using Investment Company Act Section 47(b) to give funds a private right of action to enforce other sections of the law, could either encourage or curb similar activist investor lawsuits, say attorneys at Goodwin.


Handling Sanctions Risk Cartel Control Brings To Mexico Port

Companies operating in or trading with Mexico should take steps to mitigate heightened exposure triggered by routine port transactions following the U.S. Treasury’s recent unequivocal statement that a foreign terrorist organization controls the port of Manzanillo, says Jeremy Paner at Hughes Hubbard.


Viral Coldplay Incident Shows Why Workplace Policies Matter

The viral kiss cam incident at a recent Coldplay concert involving a CEO and a human resources executive raises questions about how employers can use their code of conduct or morality clauses to address off-the-clock behavior that may be detrimental to the company's reputation, says Masood Ali at Segal McCambridge.


The Road Ahead For Digital Assets Looks Promising

With new legislation expected to accelerate the adoption of blockchain technology, and with regulators taking a markedly more permissive approach to digital assets, the convergence of traditional finance and decentralized finance is closer than ever, say attorneys at Dechert.


Tracking The Evolving Legal Landscape Of Music Festivals

The legal infrastructure behind music festivals is anything but simple, so attorneys advising clients in this space should be prepared for a wide range of legal challenges, including the unexpected risks that come with live events, says Meesha Moulton at Meesha Moulton Law.


Asbestos Trusts And Tort Litigation Are Still Not Aligned

A recent ruling by a New York state court in James Petro v. Aerco International highlights the inefficiencies that still exist in asbestos litigation — especially regarding the continued lack of coordination between the asbestos tort system and the well-funded asbestos trust compensation system, says Peter Kelso at Roux.


A Look At NAIC's Proposed Tool For Evaluation Of Insurer AI

The National Association of Insurance Commissioners' recently proposed tool that would enable regulators to assess risks posed by insurers' use of artificial intelligence takes a more expansive approach than the organization's 2023 model bulletin, which focused primarily on consumer risks, say attorneys at Eversheds.



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My Hobby Makes Me A Better Lawyer

In this Expert Analysis series, attorneys share how their unusual extracurricular activities enhance professional development, providing insights and pointers that translate to the office, courtroom and beyond.




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In this Expert Analysis series, attorneys who have made the move from government work to private practice in the last few years reflect on how they transitioned to law firm life, and discuss tips for others.




Opinion


SEC Should Restore Its 2020 Proxy Adviser Rule

Due to concerns over proxy advisers' accuracy, reliability and transparency, the U.S. Securities and Exchange Commission should reinstate its 2020 rule designed to suppress the influence that they wield in shareholder voting, says Kyle Isakower at the American Council for Capital Formation.

Closing The Chemical Safety Board Is A Mistake

The U.S. Chemical Safety and Hazard Investigation Board, which investigates the root causes of major chemical incidents, provides an essential component of worker and community safety and should not be defunded, says Reuben Guttman at Guttman Buschner.



Access to Justice Perspectives


Deepfake Evidence Battles May Exacerbate Justice Inequities

As AI-generated evidence and deepfake claims become more common in litigation, the steep expense of challenging or verifying such evidence threatens to worsen unequal justice system outcomes — and a new cost-allocation framework is needed to preserve fairness, says Rebecca Delfino at Loyola Law School.