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Expert Analysis

• White Collar Defense Lessons From The Bench And Beyond

  

  Former Minnesota judge and federal prosecutor Nicole Engisch, now a partner at Dorsey & Whitney, shares insights from her background that may inform attorneys’ defense-side approach in white collar cases and corporate investigations — more relevant than ever given the U.S. Department of Justice’s recent policy changes.

• Comparing Iowa's Data Privacy Law With Other States'

  

  Iowa’s recently signed data privacy law is intentionally more business-friendly than other U.S. state privacy laws — as it does not apply in the business-to-business contexts and does not have a private right of action — and further entrenches the main tenets of enhanced privacy in the U.S., say attorneys at Eversheds Sutherland.

• Ga. Needs To Resolve Cannabis Counsel Confusion

  

  Georgia’s medical cannabis regulator finally adopted rules for low-THC oil last month, but a 2021 ethics ruling prohibits lawyers from advising participants in the state’s legal program and creates a confounding landscape that the state bar and courts must address, say Whitt Steineker and Mason Kruze at Bradley Arant.

• 6th Circ. Ruling's Seismic Shift In FCA Kickback Causation

  

  It is difficult to overstate the significance of the Sixth Circuit’s recent decision in the False Claims Act kickback case U.S. v. Hathaway, which shifts the government's burden of proof by adopting a more defense-friendly causation standard and curbing an expansive definition of remuneration, say attorneys at Morgan Lewis.

• 3rd Circ. Ruling Offers Tools To Manage Exempt Employees

  

  The Third Circuit’s recent opinion in Higgins v. Bayada Home Health, finding the Fair Labor Standards Act allows employers to deduct paid time off for missed employee productivity targets, gives companies another resource for managing exempt employee inefficiency or absenteeism, says Laura Lawless at Squire Patton.

• Dormant Commerce Clause Issues Are Evolving In Cannabis

  

  As federal courts across the country wrestle with how the Constitution’s dormant commerce clause applies to state-legal cannabis markets, industry stakeholders will need to watch how the issue evolves in several key contexts, including interstate compacts, say Tommy Tobin and Andrew Kline at Perkins Coie.

• Garmon Defense Finds New Relevance As NLRB Stays Active

  

  With a more muscular National Labor Relations Board at work, employers should recall that they have access to a powerful yet underutilized defense to state law employment and tort claims established under the U.S. Supreme Court decision in San Diego Building Trades Council v. Garmon, say Alex Meier and Cary Reid Burke at Seyfarth.

• The Important Role Of Contra Proferentem In ERISA Cases

  

  A Pennsylvania federal court's recent decision in Stein v. Paul Revere Life Insurance illustrates what happens when ERISA plan terms are unclear, and why the contra proferentem principle should be applied uniformly in all ERISA cases, says Mark DeBofsky at DeBofsky Law.

• New Mich. Cannabis Policy May Lower Costs For Some Cos.

  

  Under a recently issued bulletin from Michigan’s cannabis regulator, certain growers and processors may be able to significantly reduce costs by shifting the balance of their medical and adult-use licenses — but this strategy does entail some complications, says Robert Hendricks at Warner Norcross.

• No Surprises Act Gives Plan Sponsors Savings Opportunities

  

  Under the No Surprises Act, the potential savings for an ERISA group health plan and its participants are significant, and sponsors should focus on the negotiation of third-party administrator service agreements to avoid exposure to breach of fiduciary claims for payment of excessive fees, say attorneys at Hall Benefits.

• Cos. Need Clarity On Divergent FCA Pleading Standard

  

  With the U.S. Supreme Court’s recent denial of certiorari in three cases concerning False Claims Act pleading standards, potential FCA defendants remain subject to forum shopping, greater prosecutorial scrutiny in more lenient circuits and ambiguity that makes crafting multijurisdictional compliance policies nearly impossible, say attorneys at Troutman Pepper.

• Time Is Ticking For Callers To Address Complex TCPA Rules

  

  The recently published Telephone Consumer Protection Act amendments will be effective in July, giving previously exempt entities only a short time to comply with technical and onerous requirements for prerecorded, nonmarketing calls to landlines, say attorneys at Wiley.

• What Cannabis Cos. Must Know About Strict Product Liability

  

  To evaluate the traditional product liability risks of their products, cannabis companies should understand the common tests used by courts to determine strict liability, as well as how marijuana consumers are educated about product risks, says Ian Stewart at Wilson Elser.