Expert Analysis

• Opinion

  Texas Judges Ignored ERISA's Core To Stall Fiduciary Rule

  

  Two recent rulings from Texas federal courts, which rely on a plainly wrong reading of the Employee Retirement Income Security Act to effectively strike a forthcoming rule that would impose functional fiduciary duties onto sellers of investment services, may expose financially unsophisticated 401(k) participants to peddlers of misleading advice, says Mark DeBofsky at DeBofsky Law.

• Mirror, Mirror On The Wall, Is My Counterclaim Bound To Fall?

  

  A Pennsylvania federal court’s recent dismissal of the defendants’ counterclaims in Morgan v. Noss should remind attorneys to avoid the temptation to repackage a claim’s facts and law into a mirror-image counterclaim, as this approach will often result in a waste of time and resources, says Matthew Selmasska at Kaufman Dolowich.

• Daubert Motion Trends In Patent Cases Reveal Damages Shift

  

  A review of all 2023 Daubert decisions in patent cases reveals certain trends and insights, and highlights the complexity and diversity in these cases, particularly in relation to lost profits and reasonable royalty damages opinions, say Sherry Zhang and Joanne Johnson at Ocean Tomo.

• Series

  Playing Dungeons & Dragons Makes Me A Better Lawyer

  

  Playing Dungeons & Dragons – a tabletop role-playing game – helped pave the way for my legal career by providing me with foundational skills such as persuasion and team building, says Derrick Carman at Robins Kaplan.

• Bid Protest Spotlight: Misplaced Info, Trade-Offs, Proteges

  

  James Tucker at MoFo examines three recent decisions concerning the consequences of providing solicited information in the wrong section of a bid proposal, the limits of agency discretion in technical merit, best-value trade-off evaluations, and the weight of the experience and capabilities of small businesses in mentor-protégé joint venture qualification.

• Class Action Law Makes An LLC A 'Jurisdictional Platypus'

  

  The applicability of Section 1332(d)(10) of the Class Action Fairness Act is still widely misunderstood — and given the ambiguous nature of limited liability companies, the law will likely continue to confound courts and litigants — so parties should be prepared for a range of outcomes, says Andrew Gunem at Strauss Borrelli.

• Jarkesy Ruling May Redefine Jury Role In Patent Fraud

  

  Regardless of whether the U.S. Supreme Court’s Jarkesy ruling implicates the direction of inequitable conduct, which requires showing that the patentee made material statements or omissions to the U.S. Patent and Trademark Office, the decision has created opportunities for defendants to argue more substantively for jury trials than ever before, say attorneys at Cadwalader.

• 3 Leadership Practices For A More Supportive Firm Culture

  

  Traditional leadership styles frequently amplify the inherent pressures of legal work, but a few simple, time-neutral strategies can strengthen the skills and confidence of employees and foster a more collaborative culture, while supporting individual growth and contribution to organizational goals, says Benjamin Grimes at BKG Leadership.

• E-Discovery Quarterly: Rulings On Hyperlinked Documents

  

  Recent rulings show that counsel should engage in early discussions with clients regarding the potential of hyperlinked documents in electronically stored information, which will allow for more deliberate negotiation of any agreements regarding the scope of discovery, say attorneys at Sidley.

• Loper Bright Limits Federal Agencies' Ability To Alter Course

  

  The U.S. Supreme Court's recent decision to dismantle Chevron deference also effectively overrules its 2005 decision in National Cable & Telecommunications Association v. Brand X, greatly diminishing agencies' ability to change regulatory course from one administration to the next, says Steven Gordon at Holland & Knight.

• Defamation Suit Tests Lanham Act's Reach With Influencers

  

  Recently filed in the Northern District of Texas, Prime Hydration v. Garcia, alleging defamation and Lanham Act violations based on the defendant's social media statements about the beverage brand, allows Texas courts and the Fifth Circuit to take the lead in interpreting the act as it applies to influencers, says attorney Susan Jorgensen.

• Series

  Teaching Scuba Diving Makes Me A Better Lawyer

  

  As a master scuba instructor, I’ve learned how to prepare for the unexpected, overcome fears and practice patience, and each of these skills – among the many others I’ve developed – has profoundly enhanced my work as a lawyer, says Ron Raether at Troutman Pepper.

• Navigating The Murky Waters Of Patent Infringement Damages

  

  Recent cases show that there is no easy way to isolate an infringed patent’s value, and it would serve all sides well for courts to thoroughly examine expert opinions of this nature and provide consistent guidance for future cases, say Manny Caixeiro and Elizabeth Manno at Venable.

• Lawyers Can Take Action To Honor The Voting Rights Act

  

  As the Voting Rights Act reaches its 59th anniversary Tuesday, it must urgently be reinforced against recent efforts to dismantle voter protections, and lawyers can pitch in immediately by volunteering and taking on pro bono work to directly help safeguard the right to vote, says Anna Chu at We The Action.

• 3 Healthcare FCA Deals Provide Self-Disclosure Takeaways

  

  Several civil False Claims Act settlements of alleged healthcare fraud violations over the past year demonstrate that healthcare providers may benefit substantially from voluntarily disclosing potential misconduct to both the U.S. Department of Justice and the U.S. Department of Health and Human Services, say Brian Albritton and Raquel Ramirez Jefferson at Phelps Dunbar.