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Expert Analysis

• What FTC's Data Actions Say About Tracker Enforcement

  

  The Federal Trade Commission’s recent enforcement actions against GoodRx and BetterHelp for sharing sensitive user information show the agency may be setting a new standard for the collection, use and disclosure of user data, which should prompt companies to audit their use of — and policies regarding — data trackers, says Reed Freeman at ArentFox Schiff.

• Labor Collusion Loss Will Shape DOJ's Case Strategy

  

  Following the U.S. Department of Justice’s recent loss in United States v. Manahe, tallying its trial score record to 0-3 in labor-related antitrust cases over the past year, defendants can expect that the DOJ will try to exclude defense evidence and argue for more favorable jury instructions, say attorneys at Sheppard Mullin.

• Examining Chancery's Recent Openness To Caremark Claims

  

  As seen in an April decision involving Walmart's role in the national opioid epidemic, the Delaware Chancery Court has recently shown receptivity to Caremark claims at the early pleading stage of litigation, providing plaintiffs with more leverage to negotiate an early settlement and bringing risk management lessons for boards, say attorneys at Fried Frank.

• Expect The Patchwork Of AI Regulation To Grow

  

  Given the unlikelihood of meaningful federal artificial intelligence legislation in the immediate future, the patchwork of state AI regulation will likely continue to grow, bringing at least two main risks for companies in the AI space, say attorneys at Jenner & Block.

• Job Reassignment Case Shows Need For Clear ADA Policies

  

  The Fifth Circuit's recent holding in U.S. Equal Employment Opportunity Commission v. Methodist Hospitals that a disabled employee was not entitled to a job reassignment as a reasonable accommodation underscores the importance of implementing detailed Americans with Disabilities Act policies and educating employees on them, says Marcellus Chamberlain at Phelps Dunbar.

• 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.