Expert Analysis

• Defamation Alternatives For Suing Hoax Social Media Users

  

  A recent proliferation of false or hoax social media content has targeted public figures and corporate accounts, and for plaintiffs seeking redress there are three types of claims that may be less-risky alternatives to defamation and libel litigation, say Charles Schafer and Ross Kloeber at Sidley.

• Cellphone Ruling Illuminates Divide On TCPA Interpretation

  

  A North Carolina magistrate judge's reasoning in Gaker v. Q3M — which said the Telephone Consumer Protection Act's do-not-call prohibitions do not include cellphones, contrary to the the Federal Communications Commission's stance — is interesting to consider, particularly for its textualist reading, says Ellen Berge at Venable.

• New Rulings Show Job Duties Crucial To Equal Pay Act Claims

  

  Two recent decisions from the Fourth and Tenth Circuits emphasize that it is an employee's actual responsibilities, and not just their job title, that are critical to a pay discrimination claim under the Equal Pay Act and can offer some lessons for employers in avoiding and defending these claims, say Fiona Ong and Lindsey White at Shawe Rosenthal.

• How Does The 4th Circ. Define A Hostile Work Environment?

  

  In Laurent-Workman v. Wormuth, the Fourth Circuit recently showed an expanded view of what a hostile work environment looks like, an analysis that stands in sharp contrast to the circuit court's prior decisions, say Kirsten Eriksson and Elisabeth Hall at Miles & Stockbridge.

• How Proposed BOEM Regs Will Boost Offshore Wind Projects

  

  Newly proposed offshore wind project regulations from the Bureau of Ocean Energy Management represent a substantial regulatory shift that will improve transparency around the timing of lease auctions, streamline approval and oversight for projects in development, and provide needed guidance for future projects, say attorneys at K&L Gates.

• And Now A Word From The Panel: 2022 MDLs By The Numbers

  

  A highlight of the Judicial Panel on Multidistrict Litigation's practice during 2022 was the significant percentage increase of new MDL petitions granted — and given how many actions and plaintiffs may be involved in a single MDL, the true impact of this increase may be even greater than it appears, says Alan Rothman at Sidley.

• The IRS' APA Rulemaking Journey: There And Back Again

  

  Attorneys at Dentons examine recent challenges in which taxpayers successfully argued Internal Revenue Service rulemaking was invalid under the Administrative Procedure Act, how tax exceptionalism and U.S. Supreme Court regulatory deference prompted such challenges, and similar challenges the agency will likely face following this line of cases.

• 4th Circ. Disability Ruling Shows ERISA Procedure Flaw

  

  The Fourth Circuit's recent decision in Tekmen v. Reliance Standard that summary judgment was inapt highlights how summary judgment has been misused in Employee Retirement Income Security Act litigation — and may help restore civil procedure norms in such lawsuits, says Mark DeBofsky at DeBofsky Law.

• How Defense Attys Can Stem The Tide Of Runaway Verdicts

  

  The latest example of a so-called runaway verdict comes from a Georgia jury’s $1.7 billion award against the defendant in Hill v. Ford Motor, highlighting for defense attorneys a trend that should be resisted through better communication with clients and colleagues about the resources and strategies needed to succeed at trial, says Jeffrey Melcher at Dickinson Wright.

• Patent Fee-Shifting Often Leaves Prevailing Parties Unpaid

  

  A prevailing party may have a 2-3 chance of getting paid under the Section 285 fee-shifting statute for patents, making reform efforts to ensure receipt of payment worth considering, say Adam Shartzer and Josh Carrigan at Fish & Richardson.

• FTC Pesticide Suit Dusts Off Some Rare Antitrust Tools

  

  ​The Federal Trade Commission's recent lawsuit against Syngenta and Corteva deploys some lesser-known antitrust regulations, and offers key takeaways on the use of loyalty programs and exclusive deals in agricultural, pharmaceutical and other markets, say attorneys at Perkins Coie.

• Guidance For Companies With PFAS Products After Calif. Ban

  

  Businesses need to engage their supply chains to determine whether per- and polyfluoroalkyl substances or other chemicals of concern are present in their products and raw materials after California recently joined the growing list of states to ban PFAS in apparel, textiles and cosmetics, says Joseph Green at Kelley Drye.

• Establishing Bad Faith In Removal Claims

  

  Recent precedent from federal courts in South Carolina and other jurisdictions shows that bad faith in removal claims can be established when defendants present clear evidence of plaintiffs intentionally delaying or withholding pertinent information — but defendants must be able to back up their assertions, says Denver Smith at Butler Snow.

• Sorting Out Access Easement Rights In Shopping Centers

  

  The pandemic has created an uptick in disputes involving businesses that generate too much drive-thru traffic in shared spaces, and though state-specific holdings on relevant doctrines are frustratingly inconsistent, the simplest precaution is to explicitly establish easement rights in advance, say Brian Watt and Matt Bailey at Troutman Pepper.

• And Now A Word From The Panel: 5 Key MDL Factors

  

  A recent decision by the Judicial Panel on Multidistrict Litigation to deny a petition for a new MDL offers useful insights into the most important factors that the panel considers when determining whether consolidation of a group of separate cases is warranted, says Alan Rothman at Sidley.