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Slack Fill: Is This Deception or Just a Bunch of Air?

Meghana Shah and Melissa Conrad-Alam of Eversheds Sutherland (US) write: Early slack fill complaints have been met with resistance. Courts have dismissed many complaints out of hand for failure to plead a cognizable claim or for failure to meet plausibility standards for pleading. As a result, the allegations in the complaints are becoming increasingly detailed and complex. As the flurry of suits continues, the question remains: Are these allegations just a bunch of air?

Searching for Web Crawling’s Legal Boundaries

Joshua L. Simmons of Kirkland & Ellis writes: While recent judicial opinions have harmonized the rules for accessing websites without authorization, the courts diverge as to whether the CFAA prohibits accessing otherwise publicly available information for an unauthorized purpose. Moreover, new web crawling techniques are testing the limits of existing case law.

A Judicial Perspective on the Management of Complex Litigation

Ronald J. Hedges of Dentons US provides some practice pointers for parties who are involved in complex litigation and the attorneys who appear on their behalf.

How to Customize Arbitration for Complex Commercial Cases

Erica B. Garay of NAM writes: Because arbitration is the parties’ process and the product of agreement, there are many opportunities for counsel to create a customized process for presenting a party’s case to the arbitrator. There is no “one size fits all” in arbitration. Counsel should give thought in advance as to how to present a case so that the efficiencies of arbitration will be realized.

Fee-Shifting Effect of Choice-of-Law Clauses

Robert Sills and Igor Margulyan of Orrick Herrington & Sutcliffe write: It may not be widely known that a choice-of-law clause could make the party that loses the litigation liable for the attorney fees of the winning side, in contrast to the usual rule in the United States that the prevailing party cannot recover its attorney fees unless the contract has an express fee-shifting provision or a statute applies that permits such recovery. Unlike the United States, most Western legal systems follow the “English Rule,” which requires the losing party to pay the prevailing party’s reasonable attorney fees.

The Scope of Choice-of-Law Clauses in International Arbitration

Curtis Waldo of Reed Smith writes: An Indian corporation and an American corporation enter a contract. The contract contains an arbitration clause with New York as the arbitral seat. The parties end up in a lawsuit. The Indian company alleges a series of tort and contract claims, including tort claims that are only available under Indian law. Are these noncontract claims subject to Indian law or to New York law? Is Indian law relevant at all?