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Business Crimes Bulletin
Protecting Privilege Before and After a Cyber Breach
Robert W. Anderson and Eric B. Levine
Critical to any counsel working to prevent a cyber attack or respond to a successful cyber intrusion is an understanding of why and how to properly utilize both attorney-client and work-product privilege.
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Cybersecurity Law & Strategy
Blockchain and GDPR — Frenemies?
Justin Hectus and Kristy Sambor
In a nutshell, GDPR mandates that individuals have access and control over the use and maintenance of their data in certain circumstances, while the foundation of blockchain relies on the immutability of data. On the surface, these concepts seem in direct conflict with each other. This article discusses the points where GDPR and blockchain share common ground, where conflicts may exist and possible approaches for mitigating those conflicts.
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Cybersecurity Law & Strategy
In-House Counsel’s Growing Role in Data Protection and Security Risk Management
Deana Uhl
Building an Intelligence-Led Program
With reports of major breaches surfacing with alarming frequency, boards and C-Level management are now looking to counsel to implement programs that help the corporation prepare for, quickly recover and reduce fallout from, inevitable cyber incidents. In-house counsel is facing growing responsibility to minimize damage to the corporate reputation, loss of key data, and legal and regulatory penalties. And many worry their organization is stuck in a game of catch-up.
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Cybersecurity Law & Strategy
The Law Firm Cybersecurity Audit Grows Up
Rhys Dipshan
In the face of new threats, law firm cybersecurity assessments have become more engaging and demanding affairs. But many hope this new change is just the beginning of a more fundamental shift.
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Accounting And Financial Planning For Law Firms
Navigating the Fear and Promise of Artificial Intelligence
Jeff Reihl and Rick McFarland
AI solves real challenges and answers real questions that lawyers face every day. It can accomplish or facilitate these tasks more quickly, accurately and efficiently than even the most capable human experts — with the goal of augmenting their skills rather than replacing them.
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Cybersecurity Law & Strategy
SEC Releases New Guidance on Cybersecurity Disclosures and Controls
David F. Katz
On Feb. 21, 2018, the SEC voted unanimously to approve a statement and interpretive guidance to assist the public in preparing disclosures about cybersecurity risks and incidents. The new guidance expands upon previous guidance provided in October of 2011.
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Cybersecurity Law & Strategy
A Roundtable Discussion: How Evolving Media Types and Cybersecurity Concerns Are Impacting e-Discovery
In this roundtable discussion, two law firm partners and two GCs share their experience and insight on the evolving nature of e-discovery and its intersection with AI, cybersecurity and privacy.
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Business Crimes Bulletin
Compliance Officers and Law Enforcement: Friends or Foes?
Jonathan B. New and Patrick T. Campbell
Part Two of a Two-Part Article
As we saw in Part One, regulators have recently shown a tendency to focus on compliance officers who they deem to have failed to ensure that the compliance and anti-money laundering (AML) programs that they oversee adequately prevented corporate wrongdoing, and there are several indications that regulators will continue to target compliance officers in 2018 in actions focused on Bank Secrecy Act/AML compliance.
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Entertainment Law & Finance
Industry Workplace Misconduct Investigations
Carri H. Cohen, Janie F. Schulman and Joshua Hill
The important ongoing industry and national conversation about sexual harassment is serving as a wake-up call to entertainment companies, board members and C-suite executives about the need to be proactive when confronted with allegations of harassment or other workplace misconduct.
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Cybersecurity Law & Strategy
Cyber Risk Assessments are a Critical Component of All Cybersecurity Programs
Collin J. Hite
Many companies remain overwhelmed by the prospect of developing a cybersecurity program. Too many still see cyber crime as an IT issue, and simply defer to that department. Cybersecurity is most definitely an information security issue and it must be treated as such. Failure to recognize this concept almost ensures a weak cybersecurity program that remains highly vulnerable to breaches.
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Accounting And Financial Planning For Law Firms
DOL’s New Rules on ERISA Claims Procedure for Disability Benefits
Lawrence L. Bell
The Department of Labor (DOL) issued regulations that revise the ERISA claims procedure regulations for employee benefit plans that provide disability benefits. The scope of the new regulations are broader than you may realize and apply to any plan, regardless of how it is characterized, that provides benefits or rights that are contingent on whether the plan determines an individual to be disabled.
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Cybersecurity Law & Strategy
The Struggle to Keep Up With Data Privacy Regulations
Chris Maguire
Data privacy is one of the most important issues facing corporations, and amidst the challenges of protecting customer data, the regulatory landscape that oversees it is shifting on an almost daily basis. With changes occurring at such a rapid pace across all corners of the globe, it’s not surprising that organizations are increasingly finding themselves inadequately prepared to deal with these regulations.
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Business Crimes Bulletin
Hiring Practices and the FCPA
Philip M. Berkowitz
While laws such as the FCPA do not necessarily prohibit hiring individuals with criminal records or bad credit records or who are former government officials, they do require employers to identify these individuals and assess whether their hire would pose a threat, violate the laws outright or impose an administratively difficult burden due to the need to monitor their activities.
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Cybersecurity Law & Strategy
Life in the (Regulated) Fast Lane: Companies Must Navigate Global Privacy Rules on Self-Driving Cars
Caroline Spiezio
The race is on to develop the best technology for autonomous vehicles, but there are also drives to increase regulation around the data these cars and trucks collect.
Clearly, it’s an exciting time to be in the autonomous car industry, and the race is on to develop the best tech first. But with an increasingly complex legal landscape, lawyers need to focus on compliance with evolving data privacy regulations.
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Business Crimes Bulletin
Sexual Harassment & the Legal Industry
John Hellerman
For members of a conservative industry that — literally — wrote the rulebook on sexual harassment, law firms need to be ready for a day of reckoning that seems inescapable.
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Business Crimes Bulletin
The National Opioid Epidemic: The Emergence of a Multi-Layered Approach
Richard S. Hartunian, Jacqueline C. Wolff and Andrew C. Case
On Oct. 26, 2017, Eric D. Hargan, Acting Secretary of the Department of Health and Human Services, announced that, as a result of the opioid epidemic, “a public health emergency exists nationwide.” As a result, counties, states and the federal government have mounted an attack on the pharmaceutical industry.
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Business Crimes Bulletin
The False Claims Act Sealing Orders
Andrew W. Schilling and Megan E. Whitehill
What They Say and Do Not Say
Part Three of a Three-Part Article
The question remains: Is the defendant in a False Claims Act matter barred from discussing the case, as are the relator and the government?
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The Corporate Counselor
Preparing for Proxy Season 2018: A Primer for General Counsel
Phil Brown
As we enter 2018, public companies across the United States will begin, in earnest, their preparations for this year’s proxy season and annual shareholder meetings. It is not an understatement to say that 2017 was a tumultuous year on many fronts — economically, politically and globally. As a result, general counsel should have several issues on their radar that could play a role in 2018’s proxy season.
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Cybersecurity Law & Strategy
Legal Tech:Looking Ahead: 2018 Legal Technology Predictions
Jeff Ton
At law firms and legal departments, preparing for the new year should mean looking back at the last year and prioritizing revenue-driving activities, identifying strategies to grow your firm or company while mitigating risk and budgeting for new projects to meet client demands.
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The Corporate Counselor
Responding to Sexual Harassment in the Workplace: A Roundtable Discussion
The #MeToo movement has empowered victims of sexual harassment and abuse previously silenced by powerful business and political leaders. No longer silent, these victims are using their experiences to challenge the powerful and raze structures that have permitted abuse. We have compiled a panel of legal experts to analyze how the law and the legal profession failed the workplace. The panelists discuss legal and environmental conditions that led to abuse, and what lawyers and businesses can do to curb the powerful and protect the vulnerable.
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The Corporate Counselor
Quarterly State Compliance Review
Sandra Feldman
This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect from Oct.1, 2017 to Jan. 1, 2018. It also looks at recent decisions of interest from Delaware.
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Accounting And Financial Planning For Law Firms
Examine KPIs on a Micro-Level to Boost Law Firm Profitability
Steven A. Davis and Tyler Quinn
You say your law firm is profitable. How do you know? To fully understand your law firm’s results of operations and financial condition, you should measure and examine key performance indicators (KPIs) on a granular level. Looking beyond high-level KPIs can provide actionable information to make operational and strategic decisions.
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Accounting And Financial Planning For Law Firms
2017 Roundup: Equity vs. Non-Equity Membership
Arthur J. Ciampi
Last Year Saw a Number of Interesting Decisions Concerning the Identity, Rights and Obligations of Non-Equity Owners, Including Partners and Shareholders
2017 saw a number of interesting decisions concerning the identity, rights and obligations of non-equity owners, including partners and shareholders. As more firms utilize non-equity members to play vital roles within their firms, it will become more important for them to take note of these decisions and the guidance they provide.
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The Corporate Counselor
U.S. Economic Sanctions
Thad McBride
The challenge for U.S. actors is how to comply with the law in the dynamic world of economic sanctions. This article tries to help by pointing out challenging (or “hot”) current issues and making suggestions about compliance strategies that in-house counsel can leverage to address the most challenging compliance issues.
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Accounting And Financial Planning For Law Firms
Do Mergers Increase Profitability?
Hugh A. Simons and Nicholas Bruch
The Numbers Say Yes, But Not for the Reasons Many May Think
Conventional wisdom has it that mergers enhance profitability through increased revenues and reduced costs. However, the numbers contradict this view: post-merger revenues are lower relative to competitor firms than are the sum of the predecessor firms’ revenues, and costs per lawyer increase markedly.
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The Corporate Counselor
Sexual Harassment
Robert G. Brody and Katherine M. Bogard
The Basics, the Skeletons In Your Closet, and How to Be Prepared
Harvey Weinstein has put the spotlight on sexual harassment in the workplace. Under this light we see multiple industries struggling with their own sexual harassment allegations and revelations.
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Accounting And Financial Planning For Law Firms
Litigation Funding Changes Legal Landscape for Boutique and Small Firms
Monika Gonzalez Mesa
The Growth of Third-Party Litigation Funding Has Been a Boon to Small Firms, But Boutique Firms Are Taking a Hit
The growth of litigation funding has widened the pool of law firms that can take on big cases, but their increasing popularity means boutique firms that have traditionally landed multimillion-dollar lawsuits by taking them on contingency or offering alternative fee arrangements are now taking a hit.
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The Corporate Counselor
FATCA Revamp
Ashley M. Elmore Drew and Adam J. Knight
Will Your Company Be Prepared?
FATCA is an effort by the United States to curb tax evasion and incentivize Foreign Financial Institutions (FFI) to report the overseas assets of U.S. persons. The U.S. encourages compliance by imposing a 30% withholding penalty on all U.S. source income and sale proceeds of non-compliant foreign financial institutions.
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Cybersecurity Law & Strategy
The Cyber Shot Across the Bow: Data Manipulation and GPS Spoofing
Michael Bahar, Bronwyn McDermott and Trevor J. Satnick
In September 2015, then-Director of National Intelligence James Clapper warned that the next "push of the envelope" in cybersecurity might be attacks that change or manipulate electronic information in order to compromise its accuracy or reliability. Two years later, we may now be seeing the beginning of such insidious attacks, in the context of GPS spoofing — a technique that sends false signals to systems that use GPS signals for navigation.
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Cybersecurity Law & Strategy
Regulators Are Catching Up to Cryptocurrency and Blockchain Technology within the Financial Services Industry
Craig Nazzaro, Brad Rustin and John Jennings
Part One of a Two-Part Article
As we head into 2018, cryptocurrency and blockchain will continue to be a top initiative for pioneers in the financial services industry. As with any innovation within the financial services industry, the regulators are never far behind and are doing their best to keep up. Those that enter this space will find that they also have to pioneer the controls to manage the regulatory risks this technology presents.
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Cybersecurity Law & Strategy
Five Smart Steps to Prepare for GDPR Data Subject Rights
Sonia Cheng, Eckhard Herych, and Richard MacDonald
Many corporations around the globe are preparing for May 2018, when Europe's General Data Protection Regulation (GDPR) enforcement kicks in. The regulation encompasses a wide range of nuanced privacy requirements that can be challenging to operationalize. In particular, requirements around the rights of European data subjects — which include the right to be forgotten and rights to access, rectification and objection to processing — will be some of the most difficult to address.
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Cybersecurity Law & Strategy
Artificial Intelligence: Knowing When It's Right for Your Firm
Arup Das
Gone are the days when being the best lawyer was enough to guarantee landing and retaining clients. Clients are demanding that firms incorporate automation and increase their efficiency. Clients are relying on automation to streamline the work they outsource, and they expect their law firms to follow suit. To this end and to remain competitive, law firms need to offer their clients innovative solutions and build artificial intelligence (AI) into the core fabric of their practices.
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Cybersecurity Law & Strategy
NY AG Proposes Stricter Data Security Laws Citing Equifax Breach
Josefa Velasquez
Following the Equifax Inc. breach that compromised personal information of 145.5 million Americans including more than 8 million New Yorkers, Attorney General Eric Schneiderman is proposing comprehensive legislation to tighten data security laws
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Cybersecurity Law & Strategy
Data Integrity and Incident Response
Benjamin Dynkin, Barry Dynkin and E.J. Hilbert
The skill required to successfully exfiltrate 143 million records is certainly sufficient to successfully attack the integrity of that very same data. It is generally accepted that cyber criminals have not performed integrity attacks because there is a minimal profit motive: Records have a black-market value; in integrity attacks, there is no deliverable that can be sold. This paradigm may be shifting.
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Cybersecurity Law & Strategy
Data Security and Data Breach Response Continue to Be a Hot Issue
Kevin Coy
Lessons from 2017 Enforcement Actions and Guidance
Regulators including the FTC, the Department of Health and Human Services Office of Civil Rights (OCR) — the agency responsible for enforcing the HIPAA rules for protected health information (PHI) — and state attorneys general have issued guidance and announced a number of settlements in data security cases that are instructive about measures that organizations can take to reduce the potential for a data breach or, if a breach does occur, provide appropriate notice.
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The Corporate Counselor
Preventing Insider Trading at Biopharma Companies
Scott R. Jones
Biopharma companies and their insiders often possess material, nonpublic information. And since company equity usually makes up a large part of insiders' compensation, legal issues arise when they have access to such information and want to trade their equity.
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The Corporate Counselor
Emergency Shutdowns and Employee Compensation
John W. Hargrove
In the face of weather and other emergencies, how do you handle pay for shutdowns in the middle of a day, extended company closings, and planned or unplanned late openings?
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The Corporate Counselor
Effective Internal Investigations
Terence Healy
A Checklist for In-House Counsel
Every general counsel over the course of his or her career will face the need to conduct an internal investigation into events at the company. Many of these may be routine in nature, such as matters dealing with individual employees or human resources issues. But at times, the company may be required to examine issues affecting the core of its business, with potential serious impact on its financial performance or with regulatory exposure.
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The Corporate Counselor
DE Supreme Court Clarifies Role of Deal Price In Appraisal Fair Value Determination
P. Clarkson Collins Jr.
Corporate practitioners have been closely following developments in Delaware's shareholder appraisal litigation. Much of the interest concerns the court's "fair value" determination and the risk that an acquiring company will have to pay appraisal petitioners more than the merger deal price. In a much-anticipated decision, the Delaware Supreme Court provides valuable guidance about the relative importance of the deal price in the court's adjudication of the "fair value" of a petitioner's shares.
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The Corporate Counselor
Quarterly State Compliance Review
Sandra Feldman
This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect between Aug. 1 and Oct. 1, 2017, including amendments to Delaware's corporation and LLC laws.
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The Corporate Counselor
Alternative Fee Arrangements in Complex Litigation
Overton Thompson III and David Rue
The Case for Value Billing
Alternative fee arrangements (AFAs) are about value, a benefit legal departments are increasingly pressured to bring to their companies. When hiring an outside lawyer, clients are not looking for "hours," and they certainly are not looking for tenths of hours. They seek value.
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The Corporate Counselor
Internal Whistleblowers
Matthew B. Schiff and Kathryn C. Nadro
SCOTUS Review of Dodd-Frank to Change the Landscape
On June 26, 2017, the Supreme Court granted certiorari in Digital Realty Trust Inc. v. Somers to review a Ninth Circuit decision regarding SEC whistleblowing protections. The Court's ruling is highly anticipated, as it will clarify the landscape for whistleblower protections.
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The Corporate Counselor
Arizona's New Paid Sick Leave Law
Tamara Cook
As of July 1, 2017 all employers in Arizona are now required to provide employees with paid sick leave as directed by a new law, the Fair Wages and Healthy Families Act. The law dictates how employers must implement the new rules — from when the benefits begin to accrue to when they pay out, and what fines will be imposed for non-compliance.
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The Corporate Counselor
Opt-Out Incentives: The Ins and Outs
Julia M. Vander Weele
As annual open enrollment season approaches, many employers may be evaluating ways in which to control rising health plan costs. One strategy frequently considered is a financial incentive for employees to waive or opt out of the employer-sponsored group health coverage.
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Product Liability Law & Strategy
Third-Party Litigation Funding
Jonathan Friedland, Elizabeth Vandesteeg and Jeffrey Goldberg
Third-party litigation funding is a relatively new, but rapidly expanding litigation financing vehicle. According to the authors, general counsel and commercial litigators would be well served to understand the changing landscape regarding the scope and potential uses of such funding.
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The Corporate Counselor
Update: Stage Now Set for DOL to Adopt More Modest Salary Level for Overtime Exemptions
Tim K. Garrett
In his final ruling, Judge Mazzant clarified that he was not questioning the DOL's authority to adopt a salary level test as part of the overtime exemptions. Rather, Judge Mazzant explained that the Obama-era DOL had gone too far in adopting a salary level so high as to become the "de-facto" test for meeting the overtime exemptions.
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The Corporate Counselor
Delaware Dethroned
Sue Reisinger
South Dakota Now Top Corporate Lawsuit Venue
South Dakota has replaced Delaware as the No. 1 choice of in-house counsel and business executives for handling corporate lawsuits, according to a new report from the U.S. Chamber of Commerce's Institute for Legal Reform.
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Accounting And Financial Planning For Law Firms
When Will Disruption Hit the Legal Industry?
Hugh A. Simons and Nicholas Bruch
Economics tells us an industry that experiences a drop in aggregate demand, adds production capacity, and increases the market overlap among competitors will suffer price erosion and profitability decline. Law firms fit this profile. Yet, in talking with law firm partners, you don't get the sense that any such "disruption" is happening. Perhaps economics has bypassed law?
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Business Crimes Bulletin
Antitrust Corporate Dispositions
Marc Siegel
This article provides critical background on DOJ policy and practice, and highlights some of the steps corporate counsel — as well as "spin-off" counsel for individual employees — can take during leniency or plea negotiations to secure non-prosecution protection for the company's employees as part of any antitrust corporate disposition.
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Cybersecurity Law & Strategy
Third-Party Cybersecurity Strategies Critical to Preparedness
David F. Katz, Richard D. Smith, Elizabeth K. Hinson, Jason Mark Anderman and Sarah Statz
This article examines the guidelines published by Board of Governors of the Federal Reserve System on managing outsourcing risk, along with the Office of the Comptroller of the Currency (OCC) 2013 OCC Bulletin 2013-29 and the supplemental Jan. 24, 2017, examination procedures, which are designed to help bank examiners tailor the examinations of national banks and federal savings associations determine the scope of the third-party risk management examination.
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