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The COVID-19 pandemic is resulting in landlords and tenants closely reviewing a clause in their lease that was long considered unimportant boilerplate. Yes, we are referring to the “force majeure” provision. “Force majeure” is translated from French as “superior strength” and is often thought of an act of God or act of nature. Black’s law dictionary defines it as “a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event or effect that the parties could not have anticipated or controlled.” In the coming months many conversations will take place regarding the applicability of the force majeure clause to closures related to the COVID-19 pandemic as well as the related doctrine of impossibility.
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Second Circuit Narrows Reach of Wire Fraud and Insider Trading Prohibitions
By Harry Sandick, Anna Blum and Abigail Marion
The Second Circuit's long-anticipated decision in United States v. Blaszczak limits the government’s ability to bring fraud or insider trading prosecutions where the information used to achieve an advantage is regulatory information held by the government. It also brings the Second Circuit in greater alignment with the Supreme Court’s wire fraud jurisprudence.
Regulators Reaching Deep In Their Toolbox to Prosecute Users of Encrypted Messages
By Andrey Spektor and Laura S. Perlov
If you use Whatsapp or similar platforms for work-related communications, then you’ve probably heard that regulators are putting an end to that practice. Ephemeral and encrypted messaging, they have noted, evades monitoring and prevents retention. A seldom used doctrine allows prosecutors to charge executives with misdemeanor offenses just for being in the position of power when others commit the misconduct. Rather than take a wait-and-see approach, companies and their leaders would do well to prepare for prosecutors to reach deep into their toolbox.
Circuit Split Over Joint and Several Liability for Forfeiture In White-Collar Crimes
By Evan T. Barr
Ever since the Honeycutt ruling by the U.S. Supreme Court in 2017 that co-conspirators convicted of federal narcotics violations could not be held jointly and severally liable, courts have grappled with whether it also applied outside the narcotics context, to forfeiture judgments imposed in white-collar cases.
SEC Tightens Rules on Scheduling Trades In Advance
By Maria Dinzeo
General counsel may find themselves pulled into difficult conversations with top executives as the Securities and Exchange Commission tightens its rules on company insiders looking to dump their stock.
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