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Expert Analysis

• Courts Should Follow 8th Circ. On ERISA Procedure Rules

  

  Other courts should take note of the Eighth Circuit's refusal to view Yates v. Symetra Life Insurance as an administrative law claim and join the growing effort to restore regular civil procedure to Employee Retirement Income Security Act cases, says Mark DeBofsky at DeBofsky Law.

• High Court Ax Of Atty-Client Privilege Case Deepens Split

  

  The U.S. Supreme Court's recent dismissal of In re: Grand Jury as improvidently granted maintains a three-way circuit split on the application of attorney-client privilege to multipurpose communications, although the justices have at least shown a desire to address it, say Trey Bourn and Thomas DiStanislao at Butler Snow.

• Biden Admin.'s Anti-Merger Stance Is Leading To Bad Policies

  

  A U.S. Department of Justice Antitrust Division speech reflects the Biden administration's goal to move enforcement in a markedly anti-merger direction, an approach that is leading to bad policies and enforcement decisions, says Cleary attorney David Gelfand, a former DOJ Antitrust Division official.

• 9th Circ. Should Rethink Inadequate UBH Ruling

  

  The Ninth Circuit should seriously consider rehearing Wit v. United Behavioral Health en banc because its recent claims reprocessing decision in the case raises troubling questions about the future of Employee Retirement Income Security Act's class actions, says Mark DeBofsky at DeBofsky Law.

• Hertz Ruling Could Help Debtors Avoid Make-Whole Premiums

  

  A Delaware bankruptcy court’s recent ruling in Hertz, disallowing claims for make-whole premiums and post-petition interest at the contract rate, could be relied upon by debtors to sidestep those provisions, and potentially provide higher recoveries for equity holders, say Theresa Foudy and Alexander Severance at MoFo.

• Atty-Client Privilege Arguments Give Justices A Moving Target

  

  Recent oral arguments before the U.S. Supreme Court in a case regarding the scope of the attorney-client privilege appeared to raise more questions about multipurpose counsel communications than they answered, as the parties presented shifting iterations of a predictable, easily applied test for evaluating the communications' purpose, say Trey Bourn and Thomas DiStanislao at Butler Snow.

• Predictions For The 2023 Drug Pricing Landscape

  

  2022 was the year of legislative action around drug pricing, while 2023 is likely to serve up precedential judicial action — including active legal challenges with respect to the government's programs covering outpatient prescription drugs, accumulators and third-party funders, says Margaux Hall at Ropes & Gray.

• NY Adult Survivors Act Look-Back: What Orgs Must Know

  

  With the look-back window for New York's Adult Survivors Act now open, survivors of past sexual abuse have a new opportunity to file civil claims — so organizations that could face litigation should take specific steps to ensure best practices both before and after lawsuits arise, say Michael Appelbaum and Christina Holdsworth at Goldberg Segalla.

• 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.