Expert Analysis

• 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.

• Fla. Insurer-Breach Cases Split On Unrepaired Property Issue

  

  A Florida appellate court's recent decision in Universal v. Qureshi is directly at odds with a 2020 decision from another Florida appellate court, and raises important questions for policyholders and insurers about the proper measure of damages in breach claims involving unrepaired property, say Andrea DeField and Yaniel Abreu at Hunton.

• Revisiting The Crime-Fraud Exception After Key Trump Cases

  

  Evidence issues in the Jan. 6 Capitol riot and classified documents cases involving former President Donald Trump offer an opportunity to restudy elements and implications of the crime-fraud exception to attorney-client privilege and the work product doctrine, noting the courts' careful scrutiny of these matters, say Robert Hoff and Paul Tuchmann at Wiggin and Dana.

• Enviro Policy Trends That Will Continue Beyond The Election

  

  Come October in a presidential election year, the policy world feels like a winner-take-all scenario, with the outcome of the vote determining how or even whether we are regulated — but there are several key ongoing trends that will continue to drive environmental regulation regardless of the election results, say J. Michael Showalter and Samuel Rasche at ArentFox Schiff.

• 2 High Court Securities Cases Could Clarify Pleading Rules

  

  In granting certiorari in a pair of securities fraud cases against Facebook and Nvidia, respectively, the U.S. Supreme Court has signaled its intention to align interpretations of the heightened pleading standard under the Private Securities Litigation Reform Act amid its uneven application among the circuit courts, say attorneys at V&E.