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Expert Analysis

• 11th Circ. Ruling May Impede Insurers' Defense Cost Recoup

  

  The Eleventh Circuit's recent Continental Casualty v. Winder Laboratories ruling that insurers cannot obtain reimbursement of defense costs from their insureds where the policy itself does not require such reimbursement is likely to be cited as persuasive authority in Georgia and other states without clear precedent on the issue, say Christy Maple and Robert Whitney at Phelps Dunbar.

• Benefits Ruling Has ERISA Review Standard Red Flags

  

  The Eighth Circuit’s recent McIntyre v. Reliance Standard decision, reversing a nurse's disability benefits win, applies a deferential standard of review that conflicts with rulings issued by other federal circuit courts, and raises concerns about whether the law’s intent is being met, says Mark DeBofsky at DeBofsky Law.

• Cannabis Cos. Must Heed PFAS Risks In Products, Packaging

  

  Cannabis businesses and ancillary service providers will have to grapple with evolving PFAS enforcement, litigation and regulations – most recently enacted in Minnesota – and take steps to mitigate risks posed by forever chemicals in their products and packaging, say Malina Dumas and Amy Rubenstein at Dentons.

• Insurance Insights From 5th Circ. Blue Bell Coverage Ruling

  

  The Fifth Circuit's recent ruling that denied Blue Bell insurance coverage for the defense costs incurred from a shareholder lawsuit underscores the importance of coordination of different coverages and policies across programs, and the potential perils of seeking recovery for losses under nontraditional policies, say Geoffrey Fehling and Casey Coffey at Hunton.

• Employer Drug-Testing Policies Must Evolve With State Law

  

  As multistate employers face ongoing challenges in drafting consistent marijuana testing policies due to the evolving patchwork of state laws, they should note some emerging patterns among local and state statutes to ensure compliance in different jurisdictions, say attorneys at Troutman Pepper.

• Is This Pastime A Side-Gig? Or Is It A Hobby?

  

  The recent U.S. Tax Court decision in Sherman v. Commissioner offers important reminders for taxpayers about the documentation and business practices needed to successfully argue that expenses can be deducted as losses from nonhobby income, says Bryan Camp at Texas Tech.

• Blunders That Made 'Bakked' Cannabis TM Go Up In Smoke

  

  The Trademark Trial and Appeal Board’s recent denial of National Concessions Group’s application to register the mark “BAKKED” illustrates mistakes that cannabis companies must be wary of in pursuing federal registration as examiners may look beyond the four corners of an application, say attorneys at Seyfarth.

• Challenging Gov't Use Of Nontraditional White Collar Tools

  

  As the government prosecutes white collar cases with an ever-increasing reliance on nontraditional tools — including wiretaps, cooperating witnesses and racketeering charges — defense attorneys must understand how to mount effective defenses against such tools, say Glenn MacKinlay and Dean Elwell at McCarter & English.

• Top 5 Privacy Cases To Watch, From Chatbots To Geolocation

  

  Litigation related to privacy law violations has been on the rise recently, and while some judges have pushed back on the novel theories set forth by plaintiffs, new privacy cases are launched almost every day, including notable ones on topics ranging from chatbots to geolocation, say Sushila Chanana and Rodolfo Rivera Aquino at Farella Braun.

• When Is AI Development 'Research' Under HIPAA?

  

  Using protected health information to develop or improve artificial intelligence often involves navigating the Health Information Portability and Accountability Act Privacy Rule, raising significant questions surrounding when AI development potentially qualifies as research under HIPAA, say Adam Greene and Rebecca Williams at Davis Wright.

• Defense Counsel Sentencing Lessons From Holmes Case

  

  The recent imprisonment of Theranos founder Elizabeth Holmes highlights fundamental but sometimes overlooked sentencing practice points for white collar defense attorneys, from instilling a sense of narrative urgency in court submissions to researching potential prison facilities, says Jack Sharman at Lightfoot Franklin.

• Wash. Health Privacy Bill May Affect Cos. Across Industries

  

  Washington’s recently enacted My Health My Data Act — a comprehensive privacy framework for companies that handle consumer health — will likely apply to companies outside the state and the health care industry, and may result in more privacy litigation than we have seen under any other state privacy statute to date, says Jenny Colgate at Rothwell Figg.

• Case Law Is Mixed On D&O Coverage For Gov't Investigations

  

  As the Fourth Circuit’s recent decision in Brown Goldstein v. Federal Insurance Co. demonstrates, federal appeals courts take different approaches to determine whether government investigations are covered by directors and officers liability insurance, so companies and individuals must review their policy language, say Chloe Law, Jan Larson and Caroline Meneau at Jenner & Block.