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On June 3, 2021, the United States Supreme Court issued a 6-3 opinion in Van Buren v. United States, No. 19-783, resolving the circuit split regarding what it means to “exceed authorization” for purposes of the Computer Fraud and Abuse Act (CFAA). The Court held that only those who obtain information from particular areas of the computer which they are not authorized to access can be said to “exceed authorization,” and the statute does not — as the government had argued — cover behavior, like Van Buren’s, where a person accesses information which he is authorized to access but does so for improper purposes. This was a long-awaited decision interpreting the CFAA, which has become an important statute in both criminal and civil enforcement relating to computer crime and hacking.
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The Criminal Division’s Enforcement Policy: What’s New for Companies Deciding Whether to Voluntarily Disclose?
By Jacqueline C. Wolff
Since the DOJ announced a new policy under which companies that voluntarily disclosed violations of the Foreign Corrupt Practices Act has attempted to encourage companies to voluntarily disclose all manner of criminal misconduct beyond violations of just the FCPA, while general counsels worldwide have been wrestling with the question of whether and when it is in the company’s best interest to so disclose.
SEC to Continue to Punish Wrongdoers and Deter Misconduct
By Jonathan H. Hecht and Emily S. Unger
The Division of Enforcement will likely continue to use “every tool in its toolkit” and expect that public companies and other market participants will think rigorously about their business and appropriately tailor compliance practices and internal controls and policies to match.
Circuit Split Reflects Disagreement About the Relationship Between Scheme Liability and SEC Rule 10b-5(b)
By Stefan Atkinson and Yi Yuan
Historically, federal courts generally agreed that scheme liability under SEC Rule 10b-5(a) and (c) requires something more than a misstatement or omission — with misstatements and omissions typically being litigated under Rule 10b-5(b) instead. However, the SCOTUS in Lorenzo v. SEC held that an individual who disseminates a misstatement, without other fraudulent conduct, is potentially liable under the scheme liability provisions of Rule 10b-5. Subsequently, a circuit split has emerged over the scope of Lorenzo’s holding.
ESG ‘Greenwashing’ Litigation On the Rise
By Shoshana Schiller, Alice Douglas and Brenda Gotanda
Increased attention paid to companies’ public promotion of their environmental and sustainability programs is likely to continue in 2023, with further developments in regulation and litigation pertaining to “greenwashing” — a marketing practice which involves unsubstantiated or exaggerated claims about the environmentally friendly or socially-responsible attributes of an organization’s products or services.