Expert Analysis

• 9th Circ. Gap Ruling Creates Split On Forum Selection Clause

  

  The Ninth Circuit recently held in Lee v. Fisher that a forum selection clause in Gap's bylaws requiring all derivative claims to be brought in Delaware state court is enforceable, but since the Seventh Circuit struck down a similar clause in Boeing's bylaws last year, Supreme Court review may be on the horizon, say attorneys at Davis Polk.

• Why Justices' SuperValu Ruling Wasn't Quite A 'Seismic Shift'

  

  Notwithstanding an early victory lap by the relators' bar, the U.S. Supreme Court’s decision in U.S. v. SuperValu Inc. was a win for both whistleblowers and sophisticated companies, but unfortunately left “subjective belief” to be interpreted by lower courts and future litigants, say attorneys at Baker Donelson.

• Effectual Relief Questions Linger After Section 363 Ruling

  

  In the months since the U.S. Supreme Court's ruling in MOAC Mall Holdings, courts and practitioners must grapple with the issue of what effectual relief courts may grant upon an appeal of an unstayed sale order, says Monique Jewett-Brewster at Hopkins Carley.

• What's Next For Enviro Justice After Affirmative Action Ban?

  

  The U.S. Supreme Court's recent decision striking down affirmative action measures in university admissions raises questions about the future of the Biden administration's environmental justice initiatives — but EJ advocates may still have reasons for cautious optimism, say J. Michael Showalter and Robert Middleton at ArentFox Schiff.

• Courts Can Overturn Deficient State Regulations, Too

  

  While suits challenging federal regulations have become commonplace, such cases against state agencies are virtually nonexistent, but many states have provisions that allow litigants to bring suit for regulations with inadequate cost-benefit analyses, says Reeve Bull at the Virginia Office of Regulatory Management.

• BIPA, Meta Pixel Suits Could Reshape Cybersecurity Litigation

  

  Businesses and attorneys should watch several pending electronic privacy cases that revolve around disclosure of protected personal information and health data, which may shape how courts handle damages and class actions in the future of cybersecurity litigation, say Kelly Johnson and Melanie Condon at Goldberg Segalla.

• Tales From The Trenches Of Remote Depositions

  

  As practitioners continue to conduct depositions remotely in the post-pandemic world, these virtual environments are rife with opportunities for improper behavior such as witness coaching, scripted testimony and a general lack of civility — but there are methods to prevent and combat these behaviors, say Jennifer Gibbs and Bennett Moss at Zelle.

• The Legal Issues Flying Around The Evolving Drone Market

  

  As the number of drone registrations is expected to more than double over the next three years, the industry faces new risks and considerations related to privacy, Fourth Amendment, criminal, evidentiary, First Amendment, and insurance litigation, say attorneys at Covington.

• 3 Ways Courts Approach Patent Eligibility At Trial And After

  

  Sorin Zaharia and Mark Liang at O’Melveny analyze all 36 district court cases where patent eligibility under Section 101 was decided at trial or post-trial after Alice, specifically focusing on how different districts address step two of the Alice inquiry, as well as the impact of each approach on the outcome.

• 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.

• Understanding Illinois' Temp Worker Obligation Updates

  

  Recent amendments to the Illinois Day and Temporary Labor Services Act would significantly expand the protection for temporary workers in the state, impose new compliance obligations on staffing agencies and their client companies, and add significant enforcement teeth to the act, say Nicholas Anaclerio and Ellie Hemminger at Vedder Price.

• Level Up Lawyers' Business Development With Gamification

  

  With employee engagement at a 10-year low in the U.S., there are several gamification techniques marketing and business development teams at law firms can use to make generating new clients and matters more appealing to lawyers, says Heather McCullough at Society 54.

• Mallory Ruling Leaves Personal Jurisdiction Deeply Unsettled

  

  In Mallory v. Norfolk Southern Railway, a closely divided U.S. Supreme Court recently rolled back key aspects of its 2017 opinion in Daimler AG v. Bauman that limited personal jurisdiction, leaving as many questions for businesses as it answers, say John Cerreta and James Rotondo at Day Pitney.

• 5 Ways Firms Can Rethink Office Design In A Hybrid World

  

  As workplaces across the country adapt to flexible work, law firms must prioritize individuality, amenities and technology in office design, says Kristin Cerutti at Nelson Worldwide.

• A Midyear Look At How AI Is Affecting Lawyers

  

  The past six months have been a notable period for advancements in artificial intelligence and generative AI, and as we head into the second half of the year, we must review the implications that AI has for the legal industry, including how lawyers will be advising clients on use of AI technology, says Natasha Allen at Foley & Lardner.