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Expert Analysis

• Bankruptcy Ruling Affirms High 9th Circ. Evidentiary Standard

  

  The Ninth Circuit Bankruptcy Appellate Panel's recent ruling in Groves demonstrates that Section 363 — which allows a debtor-in-possession to sell their property in order to generate cash — fails as a tool when it’s used to turn a nondebtor entities' property into property of a debtor's bankruptcy estate, says Brian Shaw at Cozen O'Connor.

• Absent Federal Action, Tribal Cannabis Laws Remain In Limbo

  

  Many Native American tribes have proceeded with cannabis legalization efforts despite inconsistent federal enforcement and a confusing jurisdictional landscape, but until the federal government takes action, tribal sovereignty on this issue will remain ad-hoc and uncertain, says Anna Wills at Duane Morris.

• J&J Ch. 11 Dismissal Ignores Mass Tort Bankruptcy Principles

  

  The Third Circuit's recent dismissal of LTL Management's Chapter 11 petition due to insufficient financial distress — even as the Johnson & Johnson subsidiary defends thousands of tort claims — runs contrary to decades of precedent in mass tort bankruptcies, says Douglas Smith at Aurelius Law.

• Don't Assume AI Is Smart Enough To Avoid Unintended Bias

  

  As companies increasingly incorporate artificial intelligence decision models into their business practices, they should consider using statistical and qualitative analyses to evaluate and reduce inadvertent discrimination, or disparate impact, induced by AI, say Christine Polek and Shastri Sandy at The Brattle Group.

• Circuit Split Complicates US Discovery In Foreign Tribunals

  

  Differences between the Second and Fourth Circuits' interpretations of when litigants in foreign tribunals may obtain discovery in U.S. courts are substantial, making companies' decisions about where to file a Section 1782 application complex, say attorneys at Finnegan.

• State, Federal Disconnect Sows Confusion For CBD Industry

  

  The U.S. Food and Drug Administration’s renewed focus on CBD-infused foods, and its recent announcement that it would not develop rules for hemp-derived CBD, exposes a divide between state and federal regulation, resulting in market confusion that will need to be resolved by Congress, say attorneys at the Law Offices of Omar Figueroa.

• Fielding Remote Work Accommodation Requests Post-COVID

  

  The Eighth Circuit's recent decision in Mobley v. St. Luke's may indicate how a court will analyze whether remote work is a reasonable accommodation under the Americans with Disabilities Act in an instance where an employee successfully performed work remotely during the pandemic, providing a road map for employers, says Kenneth Winkler at Berman Fink.

• Texas' Medical Cannabis Program May Soon Be Sittin' Pretty

  

  A number of recently filed bills in Texas signal serious momentum for the state’s anemic medical cannabis program, and though its precise future is still hazy, a robust industry in the Lone Star State would have a profound impact on the national market, say Slates Veazey and Whitt Steineker at Bradley Arant.

• The Terms Every Monitorship Agreement Should Include

  

  Little of the recent discussion around corporate compliance monitorships has focused on how they should be structured, but drafting a clear and comprehensive agreement at the outset is crucial to maximizing a monitorship’s success, says Scott Garland at Affiliated Monitors.

• Courts Must Apply Correct Causal Standard In Kickback Cases

  

  Despite clear statutory language and supporting legislative history, the government and some courts have been incorrectly interpreting the Anti-Kickback Statute's "resulting from" language, which could lead to detrimental effects for innocent patients and physicians if not corrected, say attorneys at Covington.

• Higher Ed Can't Recycle Cannabis Policies For Psychedelics

  

  As efforts to legalize and decriminalize psychedelic substances proliferate, higher education must recognize the nuanced legal issues that distinguish these drugs from cannabis, and consider a unique approach to the possession, use and research of psychedelics on campus, say attorneys at Saul Ewing.

• Issues To Watch In Fla.'s Telehealth Genetic Counseling Bills

  

  Two recently introduced Florida bills would expand the state’s telehealth statute to include genetic counseling services, and though they currently don’t have opposition, they may have to overcome data privacy and out-of-state licensing concerns, say Erika Alba and Jacqueline Acosta at Foley & Lardner.

• Questions Surround FDA's Orphan Drug Exclusivity Approach

  

  In light of a new U.S. Food and Drug Administration notice, which contrasts with an Eleventh Circuit ruling on orphan drug exclusivity, the exact scope of orphan drug exclusivity periods appears uncertain and companies may want to reconsider their strategies for requesting designations, say Jacqueline Berman and Nikita Bhojani at Morgan Lewis.