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On Jan. 1, 2021, the U.S. Congress rang in the new year by passing the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. Buried in the massive spending bill is §6501, a provision authorizing the U.S. Securities and Exchange Commission (SEC) to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others. Congress passed this legislation in apparent response to a pair of U.S. Supreme Court decisions that limited disgorgement in SEC enforcement actions to a five-year statute of limitations and required that the remedy not exceed a wrongdoer’s net profits and be awarded for the benefit of victims. See, Kokesh v. Sec. & Exch. Comm’n, 137 S. Ct. 1635 (2017); Liu v. Sec. & Exch. Comm’n, 140 S. Ct. 1936, 1940 (2020).
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By David P. Saunders
Internal corporate investigations can be, and frequently are, privileged. However, it is difficult to square that concept with the recent spate of federal court opinions that have concluded that cybersecurity forensic reports generally are not privileged.
By Elkan Abramowitz and Jonathan S. Sack
This article discusses whether disclosures made when a subject of a government investigation borrows money or sells all or part of its business are protected from discovery on the basis of the attorney-client privilege and pursuant to the common interest doctrine.
By Robert J. Anello and Richard F. Albert
The Van Buren decision fits into a pattern of the court’s modern criminal law jurisprudence that appears motivated by concerns about the ever-expanding reach and severity of federal criminal law.
By Emil Sayegh
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks now target the critical infrastructure of the most powerful country on the planet.