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Expert Analysis

• Establishing Bad Faith In Removal Claims

  

  Recent precedent from federal courts in South Carolina and other jurisdictions shows that bad faith in removal claims can be established when defendants present clear evidence of plaintiffs intentionally delaying or withholding pertinent information — but defendants must be able to back up their assertions, says Denver Smith at Butler Snow.

• Lessons From 1st COVID Biz Interruption Policyholder Verdict

  

  Robyn Anderson at Lathrop examines what made Baylor College of Medicine's recent COVID-19 business interruption case a success in Texas state court, and considers whether this first win on behalf of an insured is an outlier or a sign of more to come.

• No-Poach Plea Hiccups Point To DOJ's Unsound Theory

  

  After a series of setbacks, the U.S. Department of Justice could soon obtain its first no-poach conviction, but complications in a recent change-of-plea hearing demonstrate that the government’s problems may continue as long as it incorrectly insists that labor cases are the same as any other antitrust conspiracy, say Mark Butscha and Matthew Ridings at Thompson Hine.

• State COVID Insurance Rulings Highlight Errors In Dismissals

  

  Recent California and Vermont decisions in favor of policyholders, along with a $48 million jury verdict in Texas, underscore the error that courts are making by dismissing COVID-19 business interruption lawsuits at the pleading stage without consideration of the facts and evidence in each case, say Joseph Niczky and Michael Levine at Hunton.

• Recent Cases Guide On Use Of Experts In Employment Trials

  

  Experts can help judges and juries understand a range of issues in employment litigation, from statistical data to damages, and recent cases involving admissibility challenges provide lessons for the careful selection of experts to meet Daubert standards, say Kathleen Anderson and John Maley at Barnes & Thornburg.

• 2nd Circ. Shkreli Atty Ruling Guides On 401(k) Garnishment

  

  The Second Circuit’s recent holding that the government could garnish the 401(k) accounts of Martin Shkreli’s co-conspirator attorney shows that those facing criminal charges should prepare for the possibility that their retirement accounts may be subject to garnishment in order to satisfy restitution orders, say Brea Croteau and Edward Novak at Polsinelli.

• Physician Noncompetes May Get Federal Antitrust Treatment

  

  While interpretation and enforcement of health care noncompete agreements have traditionally been viewed as state law matters, the agreements are increasingly facing scrutiny of their anticompetitive effects at a national level, say John Zen Jackson and Jessica Carroll at Greenbaum Rowe.

• 3rd Time May Be The Charm For Florida Cannabis Legalization

  

  After two unsuccessful attempts at legalizing adult-use cannabis in Florida, strong electoral support combined with significant financial backing for a recently approved constitutional ballot initiative may finally result in success, say Ashlee Tising and Jonathan Robbins at Akerman.

• FOIA Ruling Yields New Argument For Challenging Exemption

  

  The Second Circuit recently became the first appellate court to address the 2016 FOIA Improvement Act's impact on a key exemption of the Freedom of Information Act, providing FOIA requestors with a new argument to challenge exemption claims that are based on confidentiality and competitive harm, and requiring courts to assess the credibility of such claims, say attorneys at Crowell & Moring.

• 7th Circ. 'Reasonable Costs' Ruling Is A Win For Policyholders

  

  The Seventh Circuit's decision in USA Gymnastics v. Liberty Insurance last month establishes useful precedent for policyholders, affirming and expanding on its rule that defense costs are presumed to be reasonable and necessary when insurers breach their duty to defend, say attorneys at Reed Smith.

• Courts Are Not Shifting On COVID Biz Interruption Stance

  

  Although a recent Law360 guest article suggested that the pendulum is about to swing in favor of policyholders seeking business interruption coverage for pandemic-related losses, the larger body of appellate case law — applying the laws of 25 states — continues to find no coverage, say attorneys at Dentons.

• FTC Settlement Puts Contact Lens Compliance In Sharp Focus

  

  The Federal Trade Commission's recent $3.5 million settlement with Vision Path over improper online sales of prescription contact lenses, and related online reviews, demonstrates that companies must eye their legal responsibilities under the Contact Lens Rule and the FTC Act carefully to mitigate legal risks and liability, says David Oberly at Squire Patton.

• Why Creditors Should Beware Of SBRA Due Diligence Defense

  

  The Delaware bankruptcy court’s recent holding in the Center City Healthcare Chapter 11 case highlights courts' reluctance to interpret the Small Business Reorganization Act as requiring bankruptcy plaintiffs to undertake any additional due diligence, which means trade creditors should beware of seeking to dismiss a preference claim on those grounds, say Eric Chafetz and Lindsay Sklar at Lowenstein Sandler.