Expert Analysis

• Key Antitrust Class Certification Questions Remain Unclear

  

  The U.S. Supreme Court, by recently rejecting certiorari in Visa v. National ATM, turned down the opportunity to clarify how to analyze disputed evidence bearing on the certification of antitrust class actions, leaving the applicable standards unclear instead of resolving this split of authority, says Jonathan Berman at Jones Day.

• Action Steps To Address New Restrictions On Outbound Data

  

  Companies should immediately assess all their data-based operations so they can consider strategies to effectively mitigate new compliance risks brought on by recently implemented transaction restrictions, including a Justice Department proposal and landmark data legislation, say attorneys at Wiley.

• E-Discovery Quarterly: Recent Rulings On Text Message Data

  

  Electronically stored information on cellphones, and in particular text messages, can present unique litigation challenges, and recent court decisions demonstrate that counsel must carefully balance what data should be preserved, collected, reviewed and produced, say attorneys at Sidley.

• CFPB Reality Check: Video Game Cash Is Still Money

  

  The Consumer Financial Protection Bureau's recent report examining payments within online video games indicates that financial services offered within the game marketplace are quickly evolving to the point where they are indistinguishable from traditional financial services subject to regulation, say attorneys at Sheppard Mullin.

• How Copyright Office AI Standards Depart From Precedent

  

  The U.S. Copyright Office's recent departure from decades of precedent for technology-assisted works, and express refusal to grant protection to artificial intelligence-assisted works, may change as the dust settles around ancillary copyright issues for AI currently pending in litigation, says Kristine Craig at Hanson Bridgett.

• IP Considerations For Companies In Carbon Capture Sector

  

  As companies collaborate to commercialize carbon capture technologies amid massive government investment under the Infrastructure Investment and Jobs Act, a coherent intellectual property strategy is more important than ever, including proactively addressing and resolving questions about ownership of the technology, say Ashley Kennedy and James De Vellis at Foley & Lardner.

• Keeping Up With Class Actions: A New Era Of Higher Stakes

  

  Corporate defendants saw unprecedented settlement numbers across all areas of class action litigation in 2022 and 2023, and this year has kept pace so far, with three settlements that stand out for the nature of the claims and for their high dollar amounts, says Gerald Maatman at Duane Morris.

• Does Expert Testimony Aid Preliminary IPR Responses?

  

  Dechert attorneys analyze six years of patent owners' preliminary responses to inter partes review petitions to determine whether the elimination of the presumption favoring the petitioner as to preinstitution testimonial evidence affected the usefulness of expert testimony in responses.

• Are Concessions In FDA's Lab-Developed Tests Rule Enough?

  

  Although the U.S. Food and Drug Administration's new policy for laboratory-developed tests included major strategic concessions to help balance patient safety, access and diagnostic innovation, the new rule may well face significant legal challenges in court, say Dominick DiSabatino and Audrey Mercer at Sheppard Mullin.

• 8 Questions To Ask Before Final CISA Breach Reporting Rule

  

  The Cybersecurity and Infrastructure Security Agency’s recently proposed cyber incident reporting requirements for critical infrastructure entities represent the overall approach CISA will take in its final rule, so companies should be asking key compliance questions now and preparing for a more complicated reporting regime, say Arianna Evers and Shannon Mercer at WilmerHale.

• Is The Digital Accessibility Storm Almost Over?

  

  Though private businesses have faced a decadelong deluge of digital accessibility complaints in the absence of clear regulations or uniformity among the courts, attorneys at Epstein Becker address how recent federal courts’ pushback against serial Americans with Disabilities Act plaintiffs and the U.S. Department of Justice’s proposed government accessibility standards may presage a break in the downpour.

• Rebuttal

  Double-Patenting Ruling Shows Terminal Disclaimers' Value

  

  While a recent Law360 guest article seems to argue that the Federal Circuit’s Cellect decision last year robs patent owners of lawful patent term, the ruling actually identifies how terminal disclaimers are the solution to the problem of obviousness-type double patenting, say Jane Love and Robert Trenchard at Gibson Dunn.

• Series

  Swimming Makes Me A Better Lawyer

  

  Years of participation in swimming events, especially in the open water, have proven to be ideal preparation for appellate arguments in court — just as you must put your trust in the ocean when competing in a swim event, you must do the same with the judicial process, says John Kulewicz at Vorys.

• How Courts Are Interpreting Fed. Circ. IPR Estoppel Ruling

  

  In the year since the Federal Circuit’s Ironburg ruling, which clarified the scope of inter partes and post-grant review estoppel, district court decisions show that application of IPR or PGR estoppel may become a resource-intensive inquiry, say Whitney Meier Howard and Michelle Lavrichenko at Venable.

• A Recipe For Growth Equity Investing In A Slow M&A Market

  

  Carl Marcellino at Ropes & Gray discusses the factors bolstering appetite for growth equity fundraising in a depressed M&A market, and walks through the deal terms and other ingredients that set growth equity transactions apart from bread-and-butter venture capital investing.