Expert Analysis

• 2 Rulings Show How Courts Assess Health Benefit Denials

  

  Two recent decisions from federal appeals courts offer important insights into how courts are assessing denials of health benefit claims brought under the Employee Retirement Income Security Act, including guidance on how plan administrators should evaluate claims and what documents must be disclosed, says Mark DeBofsky at DeBofsky Law.

• 2nd Circ. Provides NY Pathway For Fighting Foreign Infringers

  

  A recent decision from the U.S. Court of Appeals for the Second Circuit provides a road map for expeditiously obtaining personal jurisdiction in New York against foreign trademark infringers based on a single purchase of counterfeit goods, meaning the Second Circuit could now be the preferred venue for combating foreign infringement, says Jeffrey Ratinoff at Spencer Fane.

• Recent Securities Cases Highlight Risks In AI Disclosures

  

  Increasing public disclosure about the use and risks of artificial intelligence, and related litigation asserting that such disclosures are false or misleading, suggest that issuers need to exercise great care with respect to how they describe the benefits of AI, say Richard Zelichov and Danny Tobey at DLA Piper.

• Sublimit And Policy Interpretation Lessons From Amtrak Case

  

  The recently settled dispute between Amtrak and its insurers over sublimit coverage illustrates that parties with unclear manuscript policies may wish to avoid litigation in favor of settlement — as the New York federal court declined to decide the case by applying prior term interpretations, says Laura Maletta at Chartwell Law.

• 3rd Circ. Hertz Ruling Highlights Flawed Bankruptcy Theory

  

  The Third Circuit, in its recent Hertz bankruptcy decision, became the latest appeals court to hold that noteholders were entitled to interest before shareholders under the absolute priority rule, but risked going astray by invoking the flawed theory of code impairment, say Matthew McGill and David Casazza at Gibson Dunn.

• Opinion

  Barrett Is Right: Immunity Is Wrong Framework In Trump Case

  

  Justice Amy Coney Barrett’s concurrence in Trump v. U.S., where the majority opinion immunized former presidents almost entirely from criminal prosecution for official actions, rests on a firmer constitutional foundation than the majority’s immunity framework, says Matthew Brogdon at Utah Valley University.

• Opinion

  This Election, We Need To Talk About Court Process

  

  In recent decades, the U.S. Supreme Court has markedly transformed judicial processes — from summary judgment standards to notice pleadings — which has, in turn, affected individuals’ substantive rights, and we need to consider how the upcoming presidential election may continue this pattern, says Reuben Guttman at Guttman Buschner.

• A Look At The PTAB's Assessment Of Prior Art Exceptions

  

  The Patent Trial and Appeal Board's approach over the last 10 years to assessing Section 102(b) prior art exceptions reveals a few trends, including that evidence of common ownership may have a higher likelihood of successfully disqualifying prior art under Section 102(b)(2)(C) at the institution stage, say Louis Panzica and David Holman at Sterne Kessler.

• Series

  Playing Diplomacy Makes Us Better Lawyers

  

  Similar to the practice of law, the rules of Diplomacy — a strategic board game set in pre-World War I Europe — are neither concise nor without ambiguity, and weekly gameplay with our colleagues has revealed the game's practical applications to our work as attorneys, say Jason Osborn and Ben Bevilacqua at Winston & Strawn.

• 5th Circ. Shows Admin Rules Can Survive Court Post-Chevron

  

  The Fifth Circuit's textual analysis of the Fair Labor Standards Act, contributing to its recent affirming of the U.S. Department of Labor’s authority to set an overtime exemption salary threshold, suggests administrative laws can survive post-Chevron challenges, say Jessi Thaller-Moran and Erin Barker at Brooks Pierce.

• Open Questions In Unsettled Geofence Warrant Landscape

  

  The Fourth and Fifth Circuits recently reached radically divergent conclusions about the constitutionality of geofence warrants, creating an uncertain landscape in which defendants should assert and preserve the full range of conventional Fourth Amendment challenges, says Charles Fowler at McKool Smith.

• Applying High Court's Domestic Corruption Rulings To FCPA

  

  After the U.S. Supreme Court narrowed the domestic corruption statutes in three decisions over the past year and a half, it’s worth evaluating whether these rulings may have an impact on Foreign Corrupt Practices Act enforcement, and if attorneys can use the court’s reasoning in international bribery cases, says James Koukios at MoFo.

• Bid Protest Spotlight: Debriefings, Timeliness, Documentation

  

  ​James Tucker at MoFo examines three recent decisions from the Federal Circuit, the U.S. Government Accountability Office and the U.S. Court of Federal Claims concerning an agency's decision not to hold post-award discussions, a timeliness trap in certain Federal Supply Schedule procurements and the importance of providing contemporaneous documentation in price-evaluation protests.

• Conn. Court Split May Lead To Vertical Forum Shopping

  

  As shown by a recent ruling in State v. Exxon Mobil, Connecticut state and federal courts are split on personal jurisdiction, and until the Connecticut Supreme Court steps in, parties may be incentivized to forum shop, causing foreign entities to endure costly litigation and uncertain liability, says Matthew Gibbons at Shipman & Goodwin.

• Mental Health First Aid: A Brief Primer For Attorneys

  

  Amid a growing body of research finding that attorneys face higher rates of mental illness than the general population, firms should consider setting up mental health first aid training programs to help lawyers assess mental health challenges in their colleagues and intervene with compassion, say psychologists Shawn Healy and Tracey Meyers.