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Business Crimes Bulletin
Common Pitfalls In Personal Device Collection
Marjorie Peerce and Marguerite O’Brien
Both the DOJ and the SEC have made it clear that they will look at company BYOD policies when assessing how to resolve matters under their purview. To avoid pitfalls — and sanctions — counsel must take proactive steps to ensure proper preservation and collection of personal mobile data and verify that clients comply.
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Business Crimes Bulletin
FCPA Compliance Guidance for Global Businesses
Cole Callihan
The Biden administration and its Justice Department have established countering corruption as a core U.S. national security interest. Companies with any international operations should ensure they have a robust written policy and compliance program focused on anti-bribery and corruption.
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Business Crimes Bulletin
Regulators Want AI Companies to Respect Antitrust and Consumer Protection Laws
Karen Hoffman-Lent and Kenneth Schwartz
The new era of AI technology has ushered in competition concerns alongside consumer-protection fears. Accordingly, regulators and lawmakers are taking note of the AI craze and are keen on ensuring that companies involved in AI are respecting both antitrust and consumer protection laws.
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Business Crimes Bulletin
Will the Corporate Transparency Act Smother the Cannabis Industry?
Steve Schain
The CTA requires business entities to file information on their “beneficial owners” with FinCEN, which, in turn, may disclose it to domestic and foreign law enforcement agencies, prosecutors, judges and financial institutions.
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Business Crimes Bulletin
California DOJ’s Mission: Reinvigorate Criminal Prosecutions Program
Maria Dinzeo
California hasn’t brought a case for criminal antitrust violations in more than 20 years. But that’s about to change, according to California Assistant Attorney General Paula Blizzard.
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Business Crimes Bulletin
FTC Chair Concerned About Dominant Tech Firms
Maydeen Merino
The concentration of dominant technology firms could harm U.S. national interests and global leadership, Federal Trade Commission Chair Lina Khan said in March at a Carnegie Endowment for International Peace event.
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Business Crimes Bulletin
Decoding DOJ’s New ‘Justice AI’ Initiative
James D. Gatta, Allan J. Medina and Ian Q. Rogers
The DOJ is likely to face many practical challenges and novel issues as it begins coding its own algorithm for AI-related enforcement. This article briefly examines three areas of AI-related enforcement where such practical challenges and novel issues may arise.
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Business Crimes Bulletin
The FTC and DOJ’s New Guidelines Promise Sharper Scrutiny of Mergers
Karen Hoffman Lent and Kenneth Schwartz
From loosened structural presumptions to unconventional theories of harm such as “ecosystem competition” to consideration of a merger’s effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
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Business Crimes Bulletin
Supreme Court Set to Decide On Competing Interpretations of Federal Corruption Statute
Elkan Abramowitz and Jonathan Sack
In this article, we describe the competing interpretations of Section 666 and comment on the implications of a Supreme Court decision in United States v. Snyder, where it will decide whether the law criminalizes “gratuities,” and not simply “bribes,” given to state and local officials.
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Business Crimes Bulletin
The Role of the SEC In Cryptocurrency Regulation and Enforcement
Jay Dubow, Joanna Cline and Milica Krnjaja
The SEC's cryptocurrency-related actions reached a new high in 2023, jumping more than 50% when compared to 2022. We expect the SEC’s enforcement efforts in this area to continue at a high pace in 2024, even though whether or not cryptocurrency should be classified as a security or something else remains uncertain.
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Business Crimes Bulletin
Global Antitrust Competition Enforcers Are Back, According to Report
Gail J. Cohen
Labor markets, artificial intelligence and consumer-related issues are going to be under the microscope from antitrust investigators around the globe in 2024, according to a report from Morgan, Lewis & Bockius.
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Business Crimes Bulletin
SEC Keeping Eye On Non-GAAP Financial Disclosures
Kirsten Ulzheimer
The SEC’s Division of Corporation Finance continues to provide comments to issuers about non-GAAP financial measures, and the SEC’s Division of Enforcement continues to investigate the accuracy of such non-GAAP metrics and, when necessary, will enforce charges against a company for providing misleading non-GAAP financial measures.
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Business Crimes Bulletin
Artificial Intelligence: The New Weapon of Insider Threats
Peter Collins
It is imperative that every organization acknowledges and takes seriously the potential harm that can be caused by insiders who misuse AI as a weapon for personal gain or to settle scores.
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Business Crimes Bulletin
Contours of Bribery Analyzed By Second Circuit In Bank Corruption Case
Elkan Abramowitz and Jonathan Sack
This article analyzes the Second Circuit’s decision, which rejected the defense’s arguments for narrowing the definition of “corruptly” and a “thing of value” in the context of Section 215(a)(2).
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Business Crimes Bulletin
SEC Revises Beneficial Ownership Reporting Rules
Sarah Heaton Concannon and Alexander Schwartz
This article identifies certain information asymmetries in the SEC’s beneficial ownership reporting rules, discusses the extent to which those information asymmetries are addressed (or not) under the SEC’s recent rule amendments, and considers whether additional rule amendments or SEC guidance continue to be necessary.
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Business Crimes Bulletin
SEC Chief Warns Against 'AI Washing'
Maydeen Merino
Artificial intelligence could drive greater efficiency and lower costs in the finance sector but U.S. Securities and Exchange Commission Chair Gary Gensler warned last month about companies potentially making false claims about using the technology, a nefarious practice known as “AI washing.”
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Business Crimes Bulletin
SCOTUS Seeks to Provide Clarity Over Investor Suits
Jimmy Hoover
In a case that could either stem or unleash a tide of investor lawsuits, the Supreme Court searched for a narrow way to rule that might still be of some value to the securities bar.
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Business Crimes Bulletin
The Benefits of Utilizing a Written Joint Defense Agreement Properly Tailored to Limit Future Conflicts
Robert J. Anello and Richard F. Albert
A recent decision from the U.S. District Court for the Southern District of Florida illustrates a benefit of utilizing a written joint defense agreement properly tailored to limit future conflicts, rather than relying on the oral agreements that are common among many practitioners.
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Business Crimes Bulletin
Navigating the Complexities of Internal Investigations In the Current Climate
Carrie Cohen, Brian Michael and Christine Wong
Today, internal investigations have taken on added complexity given the government’s current emphasis on voluntary disclosures, the increased vigor of social justice movements, the 24/7 news cycle, and other heightened risks that often require companies to respond quickly to an unexpected event or potential crisis. To help companies navigate these complexities and best address such situations, the following strategies should be considered.
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Business Crimes Bulletin
The DOJ’s Corporate Enforcement Policy: One Year Later
Jolie Apicella
The DOJ’s Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ’s implementation of the new policy in practice.
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Business Crimes Bulletin
Lack of Transparency In SEC Settlement Penalty Calculations May Frustrate Self-reporting
Michael J. Osnato Jr., Meaghan Kelly and Stephanie Hon
SEC settlements often lack explanation as to how the civil monetary penalties were calculated per the statutory framework or why such penalties were appropriate under the circumstances. This lack of transparency tends to create market confusion and may frustrate certain behavior the SEC seeks to encourage, namely self-reporting.
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Business Crimes Bulletin
Business Crimes Bulletin Is Going Digital Only. Here’s What You Need to Know.
Steve Salkin
The final print edition of Business Crimes Bulletin will be our January issue.
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Business Crimes Bulletin
Leveraging Data and Deal Terms to Meet the Demands of the DOJ’s New M&A Safe Harbor
Patrick T. Campbell, Jonathan B. New, James A. Sherer, and Lauren E. Sternbach
This article describes the DOJ’s new M&A safe harbor policy and also provides practical insights on how companies engaged in M&A can meet the DOJ’s expectations.
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Business Crimes Bulletin
AI Is Attracting Antitrust Regulatory Scrutiny
Gretchen L. Jankowski and Abigail L. Cessna
While some jurisdictions are enacting or proposing AI-specific regulation, many existing regulatory frameworks apply to new technologies, including antitrust. Companies may experience different potential antitrust risks depending on the type of AI technology and their use of that technology.
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Business Crimes Bulletin
Are Law Firms Ready for the Corporate Transparency Act?
Ross Aronowitz
With the beginning of a new year around the corner and the introduction of new compliance obligations under the Corporate Transparency Act (CTA), many law firms are scrambling to determine how they will assist clients who may be subject to these additional regulations.
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Business Crimes Bulletin
The White House’s AI Executive Order Has Teeth, But Does It Bite?
Cat Casey
Packing more tricks and treats than a suburban soccer mom, this sweeping order was ambitious, to say the least, artfully seeking to thread the needle and balance fear and desire when it comes to the AI renaissance sweeping the globe. And yet, hidden within the body of the order lay something that might make this sweeping and ambitious order flop.
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Business Crimes Bulletin
EU’s New Foreign Subsidies Regulation Creates Risk for Foreign Companies
Linda A. Thompson
Now, large companies doing business in the EU must report any financial contribution received from a government in a non-EU country in the last three years.
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Business Crimes Bulletin
Enhanced Oversight of Search Warrants and Title III Wiretaps
Harry Sandick, Bonnie Robinson and Thomas Kicak
Search warrants and wiretaps were once used primarily to investigate organized crime, drug dealing and terrorism. In recent years, however, prosecutors have employed these tools increasingly in the context of white-collar crime to the point where it is now commonplace.
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Business Crimes Bulletin
FIFA Decision Curtail U.S. Efforts to Police Foreign Commercial Bribery
Robert J. Anello and Richard F. Albert
Heeding the U.S. Supreme Court’s clear message that ever-expanding constructions of the general fraud statutes are out of style, the latest decision out of the U.S. District Court for the Eastern District of New York in the long-running FIFA saga has the potential to substantially curtail U.S. efforts to police foreign commercial bribery.
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Business Crimes Bulletin
Managing Regulatory Risks In Times of Hyper-Aggressive Enforcement
Trudy Knockless
Companies need to be proactive and super-responsive to investigators to manage regulatory risks in this area of hyper-aggressive enforcement, according to in-participants in a recent panel at ALM Global’s General Counsel East in New York City.
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Business Crimes Bulletin
Restitution Rights for Victims of White-Collar Crime
Seth Farber, Marcelo Blackburn and Sarah Viebrock
However, when corporate misconduct rises to the level of a crime, and when that crime results in a federal criminal conviction, victims have an alternative: an order of restitution as part of the corporate defendant’s criminal sentence. As discussed below, victims enjoy several strategic advantages in a restitution proceeding that they do not in civil litigation.
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Business Crimes Bulletin
SPAC Transaction Challengers Face Uphill Battle
Jay A. Dubow, Joanna J. Cline and Erica H. Dressler
Recent decisions by the Delaware Court of Chancery demonstrate that when a special purpose acquisition company (SPAC) transaction and the disclosures surrounding it are challenged, defendants may face an uphill battle to prevail on a motion to dismiss, especially where breach of fiduciary duty claims have been asserted.
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Business Crimes Bulletin
DOJ and States Open Antitrust Case Against Google for Monopolizing Internet Search Market
Jimmy Hoover
The U.S. Department of Justice and dozens of states opened their antitrust case against Google in Washington last month, accusing the tech giant of illegally monopolizing the internet search and related ad markets.
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Business Crimes Bulletin
SEC Sued Over Private Fund Adviser Rule
Maydeen Merino
The Managed Funds Association and five other industry groups have sued the SEC over its new private fund advisers rule, saying the agency has overreached its statutory authority and interferes with contracts.
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Business Crimes Bulletin
DOJ Calls On Companies to Incorporate Data Analytics In Anti-Corruption Compliance Programs
Fotis Konstantinidis, Michael Pace and Jason Wright
This article explains the DOJ’s recent emphasis on robust data analytics in anti-corruption compliance programs, outlines how data analytics can and should be used in these programs, and suggests an approach to help legal counsel and companies determine if corporate programs will pass muster with the DOJ.
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Business Crimes Bulletin
White-Collar Practitioners Weigh In On Defending Trump Indictments
Brad Kutner
They say every defendant deserves an attorney, and that surely includes a former president, but how does a lawyer defend someone facing multiple indictments in multiple districts all while they’re running a campaign to return to the White House? Several white-collar defense attorneys who spoke with Business Crimes Bulletin’s ALM sibling The National Law Journal have some ideas.
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Business Crimes Bulletin
SCOTUS: Courts Should Avoid Assigning ‘Breathtaking’ Scope to White-Collar Crime Statutes
Robert J. Anello and Richard F. Albert
The Supreme Court’s Dubin decision is another worthy entrant in the long running series of SCOTUS decisions applying judicial restraints where prosecutors seem unable to restrain themselves.
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Business Crimes Bulletin
FTC and DOJ Proposed Merger Guidelines Eye Effect On Competition
Maydeen Merino
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have proposed merger guidelines that reflect the Biden administration’s aggressive enforcement approach to corporate acquisitions that considers not only their effect on competition but on the labor market, antitrust attorneys said.
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Business Crimes Bulletin
Crypto Winter Leads to Explosion of Regulatory Activity
Mark Bini, Kaela Dahan and Victoria Jaus
In the past year, following the Crypto Winter, there has been an explosion of activity by United States regulators and enforcers. Crypto companies, for their part, have complained that it is not clear what digital assets, if any, are securities, and that they have not been given clear regulatory rules of the road.
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Business Crimes Bulletin
Recent DOJ Losses In Antitrust Cases Don’t Tell the Whole Story
Jennifer Fischell and Thomas Schubert
Many of the Biden Administration’s antitrust enforcement actions have involved attempts to regulate anticompetitive conduct in labor markets by means…
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Business Crimes Bulletin
Biden Administration ESG Initiative Draws Scorn from Republican Lawmakers
Maydeen Merino
The Biden administration’s efforts to establish environmental, social, and corporate governance requirements on corporations has drawn scorn from Republican lawmakers even as companies learn to navigate the ESG initiative with an unclear regulatory framework.
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Business Crimes Bulletin
Regulators Put Pressure On Fintech Platforms to Improve Customer Disclosures
Chris O'Malley
Regulators cranking up scrutiny of digital-payment platforms after fund-access and customer service problems in recent years are now broadening their gaze into what happens if they collapse. That’s placing additional pressure on these fintech platforms to improve customer disclosures and possibly even find new ways to backstop against potential insolvency.
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Business Crimes Bulletin
The Message Is Clear: Assess Your Information Governance Practices In Light of DOJ and SEC Crackdown on Use of Personal Devices and Messaging Apps
Jonathan B. New, Patrick T. Campbell, James A. Sherer and Luke E. Record
Regulators increasingly are scrutinizing employee use of personal devices and third-party messaging apps. This article summarizes the DOJ’s recent guidance and the SEC’s enforcement trends and priorities in this area, and it provides information governance best practices companies can implement now to ensure they are meeting regulators’ expectations and recordkeeping rules.
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Business Crimes Bulletin
Antitrust Actions In Entertainment Industry Sectors
Stan Soocher
The growth in size of companies dominating sectors of the entertainment industry has been subject to antitrust challenges with mixed results. What are some notable recent developments in this area?
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Business Crimes Bulletin
Despite Rhetoric On Individual Accountability, Recent FCPA Enforcement Has Targeted Entities
Robert J. Anello and Richard F. Albert
With ample bravado, in recent years the FCPA unit of the DOJ and the SEC have proclaimed that holding individuals accountable for foreign bribery schemes is of “critical importance,” with the FCPA saying “it is unambiguously this department’s first priority” to prosecute individuals in corporate criminal matters. Reviewing the enforcement record, however, one sees that the volume of FCPA enforcement activity with respect to individuals has steadily declined in the last three years.
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Business Crimes Bulletin
SEC Selective Enforcement Throws Doubt On Whether Securities Rules Apply to Crypto
Cassandre Coyer
Digital assets have created a jurisdictional tug of war between the SEC and the CFTC over whether cryptocurrencies should be regulated as commodities or securities. Also tugging on that rope sit those who say cryptocurrencies are neither, and need new bespoke rules.
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Business Crimes Bulletin
Supreme Court’s Slack Ruling Could Curb ‘Direct Listings’ IPO Alternative
Jimmy Hoover
Messaging company Slack Technologies scored a unanimous victory in the U.S. Supreme Court last month, which held that an investor suing over a company stock offering must show he held “registered” securities in the company.
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Business Crimes Bulletin
Ticket Resellers’ Campaign Raises Securities Law and Money Laundering Issues
Chris Castle
Some markets allow for the sale of a future contract for tickets that have not gone on sale as yet (i.e., “speculative ticketing”). The future contract, like an option or a commodities future, allows someone to purchase the right to buy a ticket once the tickets are offered for sale. This seems to implicate securities law issues, broker-dealer regulations and potentially the general solicitation rule.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Rio Tinto’
Anthony Michael Sabino
Part Three of a Three-Part Article
The first two installments exposited Janus Capital Group, Inc. v. First Derivative Traders and Lorenzo v. S.E.C., both essential to understanding S.E.C. v. Rio Tinto, the Second Circuit’s most recent holding regarding Rule 10b-5 “scheme” liability. Now we examine how the “Mother Court” of federal securities law has tended to that branch of the mighty judicial oak rooted in that venerable regulation.
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Entertainment Law & Finance
Ticket Resellers’ State House Campaign Raises Resale Royalty, Securities Law and Money Laundering Issues
Chris Castle
Should resale royalties be paid to artists and venues when tickets are resold? Such a resale royalty might encourage artists or sports teams to permit transferability for some or all their tickets. It would also help to value that property right. So how would that work?
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