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The Informed Board - Summer 2024

Across industries, companies are facing new and uncertain regulatory pressures and demands in areas including artificial intelligence, sustainability, algorithmic pricing and fintech-bank relations. In this issue of The...more

The Age of the Algorithm: Understanding the Rewards and Risks of Algo Pricing

A range of businesses are increasingly turning to pricing algorithms to gain a competitive edge and increase revenue. At the same time, competition regulators are increasing their focus on algorithmic pricing, intent on...more

Supreme Court Opens the Door to More Rule Challenges by Extending Accrual Date for APA Cases

In Corner Post v. Board of Governors of the Federal Reserve System, the U.S. Supreme Court held the six-year statute of limitations under 28 U.S.C. §2401 for challenging federal agency action under the Administrative...more

Supreme Court Clarifies Standard for Analyzing National Bank Act Preemption

In Cantero v. Bank of America, the U.S. Supreme Court clarified the standard for analyzing whether the National Bank Act (the NBA) preempts state laws regulating banks chartered under the NBA. In doing so, the Court rejected...more

DOJ and FTC Release Final 2023 Merger Guidelines Formalizing Aggressive Merger Enforcement Playbook

On December 18, 2023, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) released the final 2023 Merger Guidelines (the Guidelines). While the final version of the Guidelines reflects...more

Antitrust and Sustainability: EU, UK and US Take Divergent Enforcement Approaches

On October 12, 2023, the UK’s Competition and Markets Authority (CMA) issued its final Green Agreements Guidance (Guidance). The Guidance is designed to help businesses seeking to collaborate on environmental sustainability...more

DOJ and FTC Propose a New Playbook for Merger Reviews

The Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) released a draft of proposed new merger guidelines today, 18 months after FTC Chair Lina Khan and Assistant Attorney General...more

ESG in 2023: A Mid-Year Review

As predicted in our February 1, 2023, client alert, “ESG in 2022 and Predictions for 2023,” a global economic slowdown and ongoing backlash in the U.S. have slowed the momentum of some aspects of the environmental, social and...more

SCOTUS Unanimously Endorses Early Challenge to Agency Proceedings, Limiting Enforcement Agency Power

The Supreme Court has made it easier to challenge the constitutionality of administrative tribunals housed at federal agencies. On April 14, 2023, the Court unanimously held in Axon Enterprise, Inc. v. Federal Trade...more

The Evolving Climates in the US and UK for Environmental Damage Claims

The November 2022 United Nations Framework Convention on Climate Change (COP27) spotlighted the political and diplomatic challenges of compensating damages caused by climate change. At the same time, fundamental questions...more

Fifth Circuit Holds SEC Proceeding Brought in Agency’s In-House Court Unconstitutional

Key Points On May 18, 2022, in Jarkesy v. SEC, No. 20-61007 (5th Cir. May 18, 2022), a split panel of the U.S. Court of Appeals for the Fifth Circuit identified three independent constitutional flaws in the administrative...more

The Pandemic Brought Some Welcome Innovations to the Justice Process, but Also Many New Challenges

Takeaways - Courts and litigators have become increasingly comfortable with remote proceedings, and they are likely to be used more frequently after the pandemic subsides than they were before. Where jurors participate...more

The Informed Board - Fall 2021

To stay ahead of the feds, companies need to monitor their own data for possible compliance problems. Congress may soon give companies better visibility into their shareholder bases, including derivatives positions. In this...more

Protocols Exist for Operating the Government During a Shutdown but Not During a Debt Ceiling Crisis

The U.S. federal government once again confronts twin fiscal crises. Absent intervening legislation, the government’s appropriations will largely lapse on October 1, 2021, prompting a shutdown. Separately, the secretary of...more

Executive Order Launches ‘Whole-of-Government’ Antitrust Initiatives but Implementation Faces a Long Road Ahead

Over the course of his first six months in office, President Joe Biden has signaled a clear commitment to reinvigorate antitrust enforcement. On July 9, 2021, he took his most specific and comprehensive action on the subject...more

Antitrust Enforcement Expected To Intensify

President Biden has signaled a pro-enforcement approach to antitrust policy by naming Columbia Law School professor Tim Wu as a White House adviser and nominating Lina Khan, who also teaches at Columbia Law, to be...more

Supreme Court Developments

Even as President Biden has appointed a commission to study potential institutional reforms of the U.S. Supreme Court, his administration’s most immediate impact at the Court came through a flurry of filings early this year...more

White House, Congress Seek To Reverse Trump-Era Regulations

The first 100 days of many new administrations include a fast-tracked review of the federal regulatory landscape. This is especially true when the presidency changes political parties, and even more so when, as today, the...more

Biden DOJ Likely To Employ FIRREA as an Enforcement Tool

The Department of Justice (DOJ) under President Joe Biden is widely expected to increase its focus on white collar enforcement actions against individuals and financial institutions. We anticipate that we will see, as we did...more

The State of Congressional Investigations in 2021

Democrats retained control of the House in November 2020, though the party enjoys a notably smaller majority after losing several seats to Republicans. Additionally, after Democrats prevailed in both runoff elections in...more

US Supreme Court 2020 Term Preview

The first months of the Supreme Court’s 2020 term have had an aura of fatigue: a nation gripped by the COVID-19 pandemic, a court adjusting to a new colleague and an unusually light caseload (to be argued by telephone)....more

OMB Announces Best Practices for Regulatory Enforcement and Adjudication

On August 31, 2020, the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB), issued a memorandum to all executive departments and agencies on reforming regulatory enforcement...more

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