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Expert Analysis

• Legal Standing For Nature: The Road Not Taken

  

  Fifty years have passed since former U.S. Supreme Court Justice William O. Douglas asked whether natural objects like trees and rivers should have standing — and while the high court has since narrowed access to the courtroom for potential environmental plaintiffs, Douglas' vision is worth revisiting, says Ninth Circuit Judge Margaret McKeown.

• 4th Circ. Disability Ruling Shows ERISA Procedure Flaw

  

  The Fourth Circuit's recent decision in Tekmen v. Reliance Standard that summary judgment was inapt highlights how summary judgment has been misused in Employee Retirement Income Security Act litigation — and may help restore civil procedure norms in such lawsuits, says Mark DeBofsky at DeBofsky Law.

• Medical Malpractice Settlements Shouldn't Require NDAs

  

  Hospitals and insurance companies can go to great lengths to avoid accountability — as depicted in the recent Netflix film "The Good Nurse" — and nondisclosure agreements used to settle medical malpractice cases out of court leave patients without crucial information when seeking treatment, says Andrew Barovick at Sandra Radna.

• Benefits Ruling Shows Need For Revised ERISA Procedure

  

  The Ninth Circuit's recent ruling in Collier v. Lincoln Life Assurance demonstrates that not only are there no uniform court procedures for Employee Retirement Income Security Act litigation, the Federal Rules of Civil Procedure are not always followed, demanding a reappraisal of ERISA civil procedure, says Mark DeBofsky at DeBofsky Law.

• Privacy Ruling Highlights Risks Of Third-Party Web Tracking

  

  The Ninth Circuit’s recent ruling in Javier v. Assurance — that third-party session replay software usage without user consent may violate a California privacy law — highlights why companies should remain proactive and review all technologies that collect information from their websites, say attorneys at K&L Gates.

• Why Warranty Providers May Explore CCPA Exemption

  

  In order to prepare for the coming wave of state consumer privacy laws across the country, organizations in the extended warranty industry should assess their exposure to the California Consumer Privacy Act and the applicability of the Gramm-Leach-Bliley Act’s exemption, say attorneys at Locke Lord.

• ERISA Ruling Reinforces Claimant Right To Know Denial Basis

  

  A Louisiana federal court’s recent ruling in Rushing v. Sun Life Assurance, finding that an insurer could not remand a case to raise a new basis for a benefit denial, reinforces claimants' rights and illustrates how limited court review in Employee Retirement Income Security Act litigation can prevent insurers from raising new rationales for denial post-filing, says Mark DeBofsky at DeBofsky Law.

• What To Expect From The Post-Midterms Lame-Duck Session

  

  Depending on the results of the midterm elections, the upcoming lame-duck session may be the last chance for Congress to enact meaningful legislation for the next several years, so organizations must push through legislative priorities now, lest they are forced to restart their efforts in a much different environment next year, says James Brandell at Dykema.

• Why Courts Are Rejecting Agencies' Merger Challenges

  

  Recent losses for the U.S. Department of Justice and the Federal Trade Commission show how difficult it is for the agencies to challenge transactions based on certain theories — and that merging parties can close difficult transactions if they are willing to fight regulators in court, say attorneys at McDermott.

• 2nd Circ. Securities Ruling May Encourage Fraud

  

  The Second Circuit's recent decision in Menora v. Frutarom, intended to clarify when defrauded purchasers have standing under securities laws, is inconsistent with well-settled law and creates wide-reaching uncertainty that will likely incentivize fraud, say attorneys at Labaton Sucharow.

• Lessons From 3 Antitrust Agency Losses In Merger Trials

  

  The government lost three antitrust agency merger trials last month, underscoring the need for companies considering strategic deals to first weigh a number of factors, including the viability of litigating before an impartial judge, say Gorav Jindal and Brian Rafkin at Akin Gump.

• Boy Scouts Ch. 11 Case Highlights Third-Party Release Split

  

  The Delaware bankruptcy court's recent approval of major parts of the Boy Scouts’ Chapter 11 plan showcases a split among federal district courts as to whether bankruptcy courts have the constitutional authority to approve third-party releases on a final basis, bringing unpredictability and ambiguity to settlements and dealmaking, say attorneys at V&E.

• 4th Circ. Ruling Won't Safeguard Life Insurance Under ERISA

  

  The Fourth Circuit's recent decision in Bellon v. PPG Employee Life, finding that life insurance benefits had vested for certain employees, is a limited exception to a strong trend of courts reading the Employee Retirement Income Security Act to generally countenance the elimination of life insurance coverage for retirees, says Elizabeth Hopkins at Kantor & Kantor.