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We have previously joined the widespread prognostication about what the advent of the Supreme Court’s new majority may mean for the evolution of the law. (See, Anello and Albert, “Implications of a More Conservative Supreme Court for White-Collar Practitioners,” in the December 2020 issue of Business Crimes Bulletin). Although it is too early to render judgment, the court’s June 3, 2021 decision in Van Buren v. United States, 141 S. Ct. 1648 (2021), one of Justice Amy Coney Barrett’s first majority opinions and her first addressing criminal law as a member of the court, provides some clues. In narrowly construing a provision of the Computer Fraud and Abuse Act of 1986 (CFAA) to avoid criminalizing “a breathtaking amount of commonplace computer activity,” Justice Barrett’s opinion likely will be welcomed by those concerned about overcriminalization and untethered prosecutorial discretion in the federal system.
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By Harry Sandick and Sarah Hardtke
The guidance mirrors the recent, broader impulse among U.S. prosecutors and regulatory agencies to extend application of U.S. law to foreign persons and entities, even when those persons and entities have only threadbare connections to the U.S.
By Jonathan B. New, Patrick T. Campbell and Rachel H. Ofori
Because PR firms may be considered third parties for privilege purposes, it is crucial that communications between a company’s counsel and its PR firm are handled with care to avoid waiving the attorney-client privilege.
Navigating the SEC’s New Cybersecurity Disclosure Rules
By Olivia J. Greer, Catherine Kim and Jeeyoon Chung
With the first cybersecurity rule for public companies, and the landscape of ongoing scrutiny and enforcement, SEC registrants should not lose time in reviewing their cybersecurity postures and policies to ensure compliance and, even ahead of formal adoption of certain still-pending rules, align with best practices.
Understanding the Difference Between Advocacy and Obstruction When Facing Government Investigations
By Christopher D. Carusone
Corporate counsel must understand the difference between advocacy and obstruction when facing government investigations.