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Expert Analysis

• NY Panel's COVID Nursing Home Case Order Spurs Questions

  

  The New York Litigation Coordinating Panel's recent final order to coordinate the resolution of COVID-19 nursing home cases leaves critical parameters for the cases coming under the order undefined, such as time frame and injury, say Christopher Potenza and Elizabeth Adymy at Hurwitz Fine.

• 3rd Circ. 'Loss' Definition Is A Win For White Collar Defendants

  

  The Third Circuit's recent watershed decision in U.S. v. Banks — holding for the first time that the definition of "loss" in fraud cases does not include "intended" loss under the sentencing guidelines — may result in fewer white collar matters and smaller sentences, say attorneys at Sheppard Mullin.

• The Fed. Circ. In November: The Presumption Of TM Validity

  

  The Federal Circuit's recent decision confirming the strength of the presumption of validity of federal trademark registrations in SoClean v. Sunset Healthcare makes clear that the presumption applies with full force, even if the examiner allowed a trademark to issue in error, says Paul Stewart at Knobbe Martens.

• Pending High Court ICWA Decision Holds Broad Implications

  

  Oral argument in Brackeen v. Haaland — a child welfare case currently before the U.S. Supreme Court — has called attention to complex interplay between the case and other tribal and racial issues, indicating that consequences will affect Congress' ability to fulfill its trust obligations to tribes, as well as diversity programs that include Native Americans, say attorneys at Jenner & Block.

• Cos. Can Bet On More Stringent Climate Regs At Every Level

  

  The climate measures recently proposed at COP27, as well as emerging federal, state and local policies aimed at reaching aggressive carbon emissions reduction targets, make it clear that companies will have to adapt to the certainty of increased climate regulations at all levels of government, says John Watson at Spencer Fane.

• ADA Ruling Uses Low Bar For Rare Employer Meddling Claim

  

  A Pennsylvania federal court's recent decision in U.S. Equal Employment Opportunity Commission v. Geisinger Health should prompt companies to examine whether their policies could violate the Americans With Disabilities Act's rarely invoked Title V prohibition against "meddling" with employees pursuing their ADA rights, say David Rowland and Sarah Bauman at Seyfarth.

• Exculpation Clause Ruling May Dissuade Some Ch. 11 Filings

  

  Highland Capital’s recent bankruptcy ruling narrows the scope of exculpation provisions permissible in the Fifth and Tenth Circuits, which not only reveals another circuit split, but also may discourage large Chapter 11 filings in those circuits and lead to diminished creditor recoveries, say attorneys at Squire Patton.

• Bankruptcy Ruling Is A Warning For Cos. With Foreign Assets

  

  The Seventh Circuit’s recent ruling in Sheehan v. Breccia is a reminder for domestic companies engaged in international business to consider the bankruptcy implications of entering into foreign financing, and highlights the importance of protection from forum selection and choice-of-law clauses, say attorneys at Michael Best.

• What New Data On FCA Enforcement Tells Us

  

  Attorneys at Kramer Levin take a deep dive into False Claims Act litigation data beyond the U.S. Department of Justice’s annual statistics, revealing enforcement trends that emerged from the early days of the Trump administration through the first eight months of Biden's term.

• Jury Verdict For EEOC Highlights Employer ADA Lessons

  

  The U.S. Equal Employment Opportunity Commission recently convinced a Tennessee federal jury that a nursing home violated the Americans with Disabilities Act by terminating an employee who requested Family and Medical Act leave to address anxiety, highlighting several points about disability bias litigation and enforcement for health care employers, says John Bennett at Freeman Mathis.

• University Compliance Programs Need 3 Lines Of Defense

  

  As illustrated by Michigan State University’s recent Title IX compliance failures, higher education institutions must incorporate three key strategies in building effective ethics and compliance programs, focusing especially on proactive and forward-looking practices, say Bradley Dizik and Robert Roach at Guidepost Solutions.

• California Case Offers New Take on Liquidated Damages

  

  The California Court of Appeal's recent decision in Gormley v. Gonzalez appears to break from well-established precedent that liquidated damages provisions in settlement agreements are unenforceable penalties — and provides hints for practitioners on crafting more robust liquidated damages clauses going forward, say Alexander Safyan and Jon-Jamison Hill at Michelman & Robinson.

• Addressing Potential Perils In Algorithmic Health Tech

  

  In light of recent legislative and executive enforcement activity in California targeting algorithmic technology in health care, health providers should address bias and other downstream impacts of this technology in order to avoid liability, say Gayland Hethcoat and Candace Sandoval at ArentFox Schiff.