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As we have observed over the years, when federal prosecutors focus their attention on high profile misconduct that is not an obvious violation of federal criminal law, they often cannot resist the attractions of broadly worded “catch-all” fraud statutes like the one prohibiting wire fraud. From time to time, however, the U.S. Supreme Court has pushed back on efforts to further expand the boundaries of these statutes, leading to reversals of some well-publicized criminal convictions. The most recent example is the Supreme Court’s reversal of the “Bridgegate”-related convictions of Bill Baroni, the former Deputy Executive Director of the Port Authority, and Bridget Anne Kelly, the former Deputy Chief of Staff to former New Jersey Governor Chris Christie. The unanimous “Bridgegate” decision’s rationale, however, was relatively narrow. The court, for example, did not expressly weigh in on the controversial “right to control” theory, which provides that a defendant deprives a victim of “property” as required under the federal fraud statutes if he or she denies the victim the right to control how its assets are used. The extent to which the principles articulated in that decision will have an impact on future federal fraud prosecutions is currently being tested in another high-profile case currently on appeal before the Second Circuit where the “right to control” theory is at issue — United States v. Gatto, otherwise known as the NCAA “hoops” case.
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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.