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Expert Analysis

• State Laws Could Complicate Employer Pandemic Protocols

  

  If the recent wave of state bills that would prevent employers from implementing certain safety protocols in a future pandemic is signed into law, companies — especially those that operate across state lines — will be forced to completely rewrite their pandemic playbooks to avoid compliance issues and discrimination claims, says Karla Grossenbacher at Seyfarth Shaw.

• How Telemedicine Providers Can Adapt To Post-COVID Rules

  

  Telemedicine providers should pay close attention to the U.S. Drug Enforcement Administration's temporary rule extending pandemic-era flexibilities for prescribing controlled substances and utilize this brief reprieve to prepare for significant changes in the final permanent rules to come, say Chris Eades and Mayo Alao at Hall Render.

• A Watershed Moment For Microbiome-Based Therapy

  

  While there has been limited microbiome patent enforcement so far, the regulatory approvals of three microbiome-related products and the case of Ferring v. Finch indicate that microbiome patent litigation could take off, and may spur greater investment in this space, say Mark FitzGerald and Alissa Young at Nixon Peabody.

• Legal Pitfalls To Watch For When Advertising Psychedelics

  

  As psychedelic products and related therapeutic services make their way into the mainstream, companies engaged in creating or publishing ads for such products and services should consider several legal implications on federal, state and local levels, says Dorian Thomas at Frankfurt Kurnit.

• ERISA Ruling Shows Why Insurers Must Justify Claim Denials

  

  The Tenth Circuit's recent decision in D.K. v. United Behavioral Health imposed a long-overdue measure of accountability on health insurers by holding that Employee Retirement Income Security Act compliance requires responding to the medical opinions of the beneficiary's treating doctors before denying claims, says Mark DeBofsky at DeBofsky Law.

• USDA Salmonella Proposal Propels New Food Safety Journey

  

  The U.S. Department of Agriculture's recent proposed policy to declare salmonella an adulterant in breaded stuffed raw chicken products could have major implications not only for the specialized products at issue, but also the entire poultry industry and beyond, say Bob Hibbert and Amaru Sanchez at Wiley.

• What The Justices' Questions Signify For FCA Compliance

  

  Whatever the outcome of two False Claims Act cases pending before the U.S. Supreme Court, the justices' questions during recent oral arguments indicate that government contractors should take certain steps to ensure their compliance programs are demonstrably active and adaptable, say Holly Butler and Rebecca Fallk at Miles & Stockbridge.

• What Texas Misrepresentation Ruling Means For Insurers

  

  The Texas Supreme Court's recent decision in American National Insurance v. Arce, confirming that insurers must prove intent to deceive in order to rescind coverage based on material misrepresentation, solidifies additional burdens for insurers to consider during both the underwriting and claims adjudication processes, say Josh Pedelty and Javon Johnson at Husch Blackwell.

• What FTC's Data Actions Say About Tracker Enforcement

  

  The Federal Trade Commission’s recent enforcement actions against GoodRx and BetterHelp for sharing sensitive user information show the agency may be setting a new standard for the collection, use and disclosure of user data, which should prompt companies to audit their use of — and policies regarding — data trackers, says Reed Freeman at ArentFox Schiff.

• Labor Collusion Loss Will Shape DOJ's Case Strategy

  

  Following the U.S. Department of Justice’s recent loss in United States v. Manahe, tallying its trial score record to 0-3 in labor-related antitrust cases over the past year, defendants can expect that the DOJ will try to exclude defense evidence and argue for more favorable jury instructions, say attorneys at Sheppard Mullin.

• Examining Chancery's Recent Openness To Caremark Claims

  

  As seen in an April decision involving Walmart's role in the national opioid epidemic, the Delaware Chancery Court has recently shown receptivity to Caremark claims at the early pleading stage of litigation, providing plaintiffs with more leverage to negotiate an early settlement and bringing risk management lessons for boards, say attorneys at Fried Frank.

• Expect The Patchwork Of AI Regulation To Grow

  

  Given the unlikelihood of meaningful federal artificial intelligence legislation in the immediate future, the patchwork of state AI regulation will likely continue to grow, bringing at least two main risks for companies in the AI space, say attorneys at Jenner & Block.

• Job Reassignment Case Shows Need For Clear ADA Policies

  

  The Fifth Circuit's recent holding in U.S. Equal Employment Opportunity Commission v. Methodist Hospitals that a disabled employee was not entitled to a job reassignment as a reasonable accommodation underscores the importance of implementing detailed Americans with Disabilities Act policies and educating employees on them, says Marcellus Chamberlain at Phelps Dunbar.