Regulation

Cybersecurity Law & Strategy

More Regulation, Stronger Investigations and Home Tech Devices Concerns to Come in 2020, New Gibson Dunn Report Warns

Steve Salkin

On Data Privacy Day last month, Gibson Dunn released the eighth edition of its United States Cybersecurity and Data Privacy Outlook and Review. The report details trends that the privacy industry saw in 2019 from a legislative, regulatory and judicial perspective.

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Cybersecurity Law & Strategy

GDPR-Based Objections to U.S. Discovery Requests: 2019 Year in Review

Leslie Meredith

U.S. civil litigants faced with an obligation to produce “personal data” protected by GDPR can find themselves on the horns of a serious dilemma. Initial rulings addressing the tension between the broad scope of data protected by GDPR and the similarly broad scope of discovery under U.S. law revealed substantial skepticism that complying with a U.S. discovery request would expose parties to significant enforcement risk in the EU. This article takes a look at what arguments parties put forth in the past year, and make a few suggestions for how litigants can avoid violating one jurisdiction’s law to satisfy another’s courts.

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The Intellectual Property Strategist

IP News

Joshua R. Stein and Jeff Ginsberg

Federal Circuit Holds PTAB Judges Unconstitutional, Constructs a Fix—But Not All Judges Agree on What Happens Next

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Cybersecurity Law & Strategy

A Look Behind, A Look Ahead: Part 1 - Cybersecurity

Steve Salkin

Cybersecurity Law & Strategy partnered with our ALM sibling Legaltech News to ask cybersecurity and e-discovery experts what they thought the key trends were in 2019 and what they expect to see in 2020.

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Cybersecurity Law & Strategy

Data Privacy: Building Compliant and Adaptable Systems

Tomas Suros

Rather than trying to institute changes to comply with every new privacy law as it emerges, a better approach is to view data privacy as an overall framework and adopt a holistic response to compliance with the built-in flexibility to constantly adapt to an ever-changing legal landscape.

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Business Crimes Bulletin

Challenge to SEC’s Disgorgement Authority Reaches Supreme Court

Jodi Misher Peikin and Jacob Mermelstein

The U.S. Supreme Court granted certiorari in Liu v. Securities and Exchange Commission to address a question that, until fairly recently, seemed clear: whether the SEC has authority to obtain disgorgement in civil actions to enforce the federal securities laws.

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The Bankruptcy Strategist

Uniform Voidable Transactions Act Signed Into Law in NY

Thomas R. Slome, Michelle McMahon and Sophia Hepheastou

On Dec. 6, 2019, Gov. Andrew Cuomo signed legislation modernizing New York’s 95-year-old fraudulent conveyance law and making it consistent with the U.S. Bankruptcy Code and the law of at least 44 other states. The Uniform Voidable Transactions Act (UVTA) primarily clarifies the rights and remedies of parties involved in transactions with financially distressed entities.

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The Bankruptcy Strategist

The Small Business Reorganization Act: A New Bankruptcy Law for Small Businesses

Zach Shelomith

The advantages of Chapter 11 bankruptcy are oftentimes unavailable to small businesses and its owners. The substantial disclosure and reporting requirements alone scare off many potential debtors. In response to this problem, Congress recently created the Small Business Reorganization Act of 2019.

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Business Crimes Bulletin

In The Courts

Juliet Gunev

Maryland Jury Convicts Former Executive on FCPA Charges for Bribing Russian Official to Win Nuclear Fuel Transportation Contracts

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Business Crimes Bulletin

Less Isn’t Always More: 1001(a)(1) Concealment Charges in Voluntary Disclosure Submissions

Paige Ammons and Preston Burton

In any investigation where a client is deposed or interviewed by a government agent, experienced lawyers should be wary of potential false statement liability and likely will have advised their clients of the paramount need to be truthful. Voluntary communications, initiated by a company or individual, with government officials are of a different ilk, however

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The Bankruptcy Strategist

Sympathy for the Debtor? Not When It Comes to Student Loans

Rudolph J. Di Massa Jr. and Jarret P. Hitchings

The assumption that bankruptcy can’t relieve a borrower of student loan obligations is incorrect, however a debtor must provide compelling evidence that an undue hardship will result if the debtor is required to repay the loan.

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The Intellectual Property Strategist

The California Consumer Privacy Act: Everything You Wanted to Know But Were Afraid to Ask

Alan L. Friel

Part Two of a Two-Part Article

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Cybersecurity Law & Strategy

Can Artificial Intelligence Fix Security Issues?

Nina Cunningham

There is great enthusiasm about what AI can do to promote better living conditions, evoking wisdom, providing business intelligence through deep analysis of behavior and habits, by signaling trends and anticipating demand. But there are other considerations as well. A critical one is cybersecurity.

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Cybersecurity Law & Strategy

Unique Cyber Risks Faced By the Cannabis Industry

Victoria Hudgins

All companies face cybersecurity threats, but the legalized cannabis industry’s storage of personally identifiable information and reliance on seed-to-sale tracking software can place it firmly within hackers’ crosshairs.

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Cybersecurity Law & Strategy

What Is the Appropriate Statute of Limitations Period for BIPA Claims?

Sean Wieber, Patrick O’Meara and Eric Shinabarger

The BIPA compliance lag has led companies using or collecting biometric information to consider how far back their liability may extend. The Illinois General Assembly, however, did not include an explicit statute of limitations period in BIPA. As a result, the statute of limitations has become one of BIPA’s primary battlegrounds as litigants argue about potential class sizes and damages awards.

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Cybersecurity Law & Strategy

The California Consumer Privacy Act: Everything You Wanted to Know But Were Afraid to Ask — 100 Days Out

Alan L. Friel

Part Two of a Two-Part Article

Part One of this article, last issue, covered how the CCPA applies to businesses — both in and outside California, the revenue threshold, proposed amendments and other open issues. Part Two continues with the rights that CCPA grants to Californians, the CCPA’s impact on company privacy policies, how other states’ privacy laws compare to the CCPA, exceptions and penalties for violating the Act.

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Business Crimes Bulletin

It’s Getting Chilly: Federal Courts Continue to Wrestle With Impact of Aggressive DOJ Public Corruption Cases

Joseph F. Savage Jr. and Christopher J.C. Herbert

In an environment of aggressive federal prosecution and regulation both businesses and public officials are challenged to identify the permissible line between proper financial transactions — things like campaign contributions and business entertainment — and unlawful payments. And, in what the First Circuit called a “novel theory of Hobbs Act extortion,” public officials now have to struggle with the scope of permissible advocacy — when does advocacy for constituents become extortion?

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New York Real Estate Law Reporter

Kuzmich et al. v. 50 Murray Street Acquisition LLC: A Deal Gone Bad for Developers Who Helped Revitalize Lower Manhattan

Alexander Lycoyannis

In Kuzmich et al. v 50 Murray Street Acquisition LLC, the Court of Appeals held that apartments in buildings receiving tax benefits under Real Property Tax Law (RPTL §421-g) are not eligible for luxury deregulation under the Rent Stabilization Law (RSL), unlike most other rent-stabilized apartments.

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Cybersecurity Law & Strategy

New Study Shows Which States Lead in Privacy Protection Laws

Sue Reisinger

General counsel who navigate the mishmash of state privacy laws may relate to a new study showing that individual U.S. states’ privacy statutes are spread across a broad spectrum.

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Business Crimes Bulletin

SEC’s Reboot on Waiver Requests in Enforcement Settlements

Robert J. Anello and Richard F. Albert

SEC Chairman Jay Clayton recently announced a change in how the SEC will consider requests for waivers of certain serious collateral consequences that would otherwise result from settlement of an SEC enforcement action. These collateral consequences, often referred to as “bad actor” or “bad boy” provisions, can vary greatly and may disqualify an entity from conducting certain business or utilizing certain means to offer securities.

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The Intellectual Property Strategist

The California Consumer Privacy Act: Everything You Wanted to Know But Were Afraid to Ask

Alan L. Friel

Part One of a Two-Part Article

The California Consumer Privacy Act (CCPA) is a comprehensive new consumer protection law set to take effect on Jan. 1, 2020. In the wake of the CCPA’s passage, approximately 15 other states introduced their own CCPA-like privacy legislation, and similar proposals are being considered at the federal level. Part One of this article covers how the CCPA applies to businesses — both in and outside California, the revenue threshold, proposed amendments and other open issues.

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Business Crimes Bulletin

Business Crimes Hotline

Juliet Gunev

Canadian Clean Fuel Technology Company and Former CEO Pay $4.1 Million to Settle China Related FCPA Case

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Cybersecurity Law & Strategy

The California Consumer Privacy Act: Everything You Wanted to Know But Were Afraid to Ask — 100 Days Out

Alan L. Friel

Part One of a Two-Part Article

Responses to questions businesses frequently ask about the impacts of the CCPA. Implementation challenges inevitably will arise as a company works to apply these new requirements to its business practices. The time is now to start preparing for the CCPA, as well as for other new U.S. privacy laws that are likely to follow.

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Cybersecurity Law & Strategy

Cybersecurity False Claims Act Cases: The Next Frontier

Andrew Mohr and C. Kelly Kroll

A new wave of False Claims Act cases is crashing ashore. Based on the federal government’s inclusion of toughened cybersecurity requirements for government contractors, numerous FCA cases will undoubtedly be filed and litigated in coming years against prime contractors and their major subcontractors for allegedly failing to comply with their contractual cybersecurity obligations.

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Business Crimes Bulletin

Immigration Form I-9: A Form That Can Have Severe Consequences

Marjorie J. Peerce, Dennis Burke and Maya Salah

This article addresses the history of Form I-9 and current initiatives underway by DHS.

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Business Crimes Bulletin

Crowdfunding, Reg D and Reg A

Jacqueline C. Wolff and Brian S. Korn

The New Routes for Access to Capital and the Potential Legal and Regulatory Risks

Although the business community lauded the arrival of new crowdfunding laws, the enforcement community has had a different take on them. As stated in 2017 by then Deputy Attorney General Rod Rosenstein: “The potential downside of crowdfunding is that it occurs outside the watchful eye of a regulated banking and financial industry. Unregulated websites therefore provide a platform for criminals to defraud potential investors.”

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Commercial Leasing Law & Strategy

A Tenant’s Perspective on SNDAs: Non-Disturbance Is Not Enough

James O’Brien

Part Two of a Two-Part Article

Part One of this article outlined the basic elements of a subordination, non-disturbance and attornment agreement (SNDA), which regulates two competing interests in the same property — tenant’s right to possess its premises pursuant to its lease and mortgage lender’s security interest in that same premises. Part Two explains the differences between the concepts of “non-disturbance” and “recognition,” while contending that lease recognition is more important to the tenant than not having its possession disturbed.

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Business Crimes Bulletin

In the Courts

Juliet Gunev

New Developments In Och-Ziff FCPA Settlement As Brooklyn Judge Grants Victim Status to Former Investors In Restitution Claim over Lost African Mining Venture

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Commercial Leasing Law & Strategy

Legal Possession: What Does It Mean?

Thomas. C. Lambert and Steven Shackman

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is “the fact of having or holding property in one’s power.” That power means having physical dominion and control over the property.

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Business Crimes Bulletin

Business Crimes Hotline

Juliet Gunev

Former Cognizant Technology COO Settles FCPA Case In Relation to India Office Construction Project

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The Intellectual Property Strategist

Seeing Green: Protecting Brands In the Cannabis Industry

David S. Gold

Branding is not a new concept, nor are the various intellectual property laws that protect brands. What is new to most is how this burgeoning industry can take advantage of those laws within the context of state and federal restrictions.

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The Intellectual Property Strategist

Did Congress Create Unintended Risks to Innovators In the AIA? 

Glenn E.J. Murphy

Many observers greeted the passage of the AIA into law as a long-overdue overhaul of U.S. patent law that aligned it with patent systems prevailing in the rest of the world. Who knew what mischief just seven of the AIA’s more than 25,000 words contained? The U.S. Supreme Court answered earlier this year.

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Cybersecurity Law & Strategy

Cybersecurity In the Legal Space: Is Your Organization Prepared?

Sundhar Rajan

Organizations that continue to be complacent about data security ignore the considerable risks posed by a breach: extended downtime, loss of billable hours, destruction or loss of sensitive data and work product, and the potentially catastrophic costs associated with repairing the damage — both to their technology infrastructure and to their reputation and brand.

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Cybersecurity Law & Strategy

GDPR & CCPA Are Just the Beginning

Karen A. Schuler

How Middle Market Companies Can Shore Up Their Data Privacy

The most significant overhaul to the EU’s data privacy policies in over 20 years, with extraterritorial reach, forced American businesses to remediate, and in some cases, overhaul their data privacy governance programs. But the GPDR was just the beginning. Organizations seeking compliance with the growing number of data privacy regulations will need to remain vigilant, especially for organizations that rely heavily on personal data.

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Business Crimes Bulletin

‘Mixed Messages’: DOJ Efforts to Dismiss Qui Tam Actions

Jonathan S. Feld and Katie J. Welch

Despite the historical trend of reduced government involvement in qui tam actions, the government is sending “mixed messages” regarding its view of FCA relators.

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Commercial Leasing Law & Strategy

New York’s 2019 Rent Laws: Impact on Commercial Landlords

Daniel J. Ansell

NY Gov. Andrew Cuomo signed legislation modifying existing rent laws and enacting significant landlord-tenant reforms. To date, the real estate industry has focused primarily on the sweeping impact the new laws will have on residential tenancies and the deregulation of rent-stabilized apartments. The reforms, however, also dramatically impact commercial tenancies by altering non-residential summary proceedings and significantly hampering the ability of commercial landlords to respond effectively and quickly to tenant defaults.

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Cybersecurity Law & Strategy

Legislative Heat Wave: A Mid-Year Review of Upcoming Cybersecurity Laws and Enforcement Activity

Michael Bahar, Sarah Paul, Mary Jane Wilson-Bilik and Ali Jessani

While legislation to enhance data privacy rights and obligations continue to make headlines, regulators and legislators are also stepping up their cybersecurity expectations. In the first half of 2019, a number of states have updated their existing data breach notification laws and passed new cybersecurity requirements.

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Cybersecurity Law & Strategy

SHIELD Act Signed in NY

F. Paul Greene

Defines Data Breach and Requires Data Security Controls

New York has brought itself into line with a number of states concerning how they define a data breach, and, where applicable, what substantive security controls they require.

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Business Crimes Bulletin

Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability

Patrick Campbell, Jonathan New and Madison Gaudreau

This article explores legal developments over the past year that may impact compliance officer personal liability.

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Business Crimes Bulletin

Insider Trading Rules Still Not Clear

John C. Coffee Jr.

It has been nearly 60 years since the SEC first clearly prohibited insider trading. You would think that would be long enough for the doctrinal rules to have become reasonably clear. Think again!

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Business Crimes Bulletin

Tech Companies Snapping Up White-Collar Lawyers

Xiumei Dong

As Silicon Valley technology companies face increasing government scrutiny, experienced white-collar practitioners are becoming hot commodities among the law firms seeking to represent tech-focused clients.

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Business Crimes Bulletin

Business Crimes Hotline

Juliet Gunev

Walmart and Brazillian Subsidiary Reach $282 Million Settlement with the DOJ and SEC to Resolve FCPA Investigations

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Business Crimes Bulletin

In the Courts

Juliet Gunev

Platinum Partners’ Executives Convicted Over $150 Million Bond Scheme; Acquitted on Billion Dollar Fraud Allegations

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Business Crimes Bulletin

Are Companies Playing It Too Safe With GDPR Breach Reporting?

Frank Ready

A new report from the law firm of Pinsent Masons shows that there has been a high level of GDPR "over-reporting" at the U.K.'s Information Commissioner's Office, but organizations who may think they are playing it safe may actually be opening themselves up to further regulatory scrutiny.

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Cybersecurity Law & Strategy

Companies Poised To Repeat Data Privacy Compliance Mistakes

Phillip Bantz

New Study Shows U.S. Companies Are Taking the Same Failed Approach To Complying With California’s Privacy Regulation As They Did for GDPR

U.S. companies haven’t learned much from the missteps they made while preparing for the European Union’s General Data Protection Regulation (GDPR), suggests a new study on data privacy regulation compliance.

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Cybersecurity Law & Strategy

State Report: New NJ Data Breach Notification Legislation Signed

Suzette Parmley

Legislation expanding the types of personal data that will trigger a required notification to customers in case of a breach, including email addresses and passwords, was signed into law by Gov. Phil Murphy.

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Cybersecurity Law & Strategy

State Report: NY Creates Nation’s First Regulatory Cybersecurity Division

Dan M. Clark

New York’s financial regulatory agency has created a first-in-the-nation cybersecurity division to place special focus on protecting the state’s consumers and industries from digital threats.

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Entertainment Law & Finance

Getting Ready for Wide-Ranging Reach of California’s Data Privacy Law

Samuel Cullari and Alexis Cocco

The CCPA is the first of its kind, generally applicable data protection law in the United States. What makes the CCPA unique is not only its applicability to companies like those in the entertainment and media industries, but also the rights it provides to consumers regarding their personal information (PI).

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Business Crimes Bulletin

Carrot Replaces Stick: Corporate Crime Enforcement In the Trump Administration

Joseph F. Savage, Jr. and Marielle Sanchez

Elections have consequences, and the election of President Trump has resulted in a significant shift in law enforcement priorities. Corporate enforcement activity is at lows not seen in decades, despite an overall increase in federal criminal cases. This is a product of a change in priorities, both in terms of types of offenses and types of offender. So, for the time being, there will be almost unprecedented opportunity to achieve favorable resolutions for corporate clients.

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Cybersecurity Law & Strategy

Privacy Notices, Opt-In Clauses Debated as U.S. Regulators Shape Federal Privacy Law

Caroline Spiezio

Tech giants’ privacy counsel and U.S. senators discussed opt-in policies, lengthy, legalese-filled privacy notices and location tracking. The discussion aimed to further shape a potential U.S. federal data privacy law.

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