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Over the last several decades, the Supreme Court has taken steps to limit the reach of honest services fraud prosecutions. As far back as the Supreme Court’s decision in McNally v. United States, 483 U.S. 350, 360 (1987), in which the Supreme Court struck down the doctrine under the mail and wire fraud statutes, the Court has declined to construe those statutes “in a manner that leaves [their] outer boundaries ambiguous and involves the Federal Government in setting standards … of good government for local and state officials.” Even after Congress resurrected the doctrine by statute, the Court has continued to prevent the law from being used in a manner that deprives defendants of their right to due process. While it is understandable that prosecutors would seek to use whatever tools they have to punish “deception, corruption, abuse of power” and other forms of wrongdoing, “not every corrupt act by state or local officials is a federal crime.” Kelly v. United States, 140 S. Ct. 1565, 1574 (2020). In this article, we discuss the importance of the “official act” requirement established in McDonnell v. United States, 136 S. Ct. 2355 (2016), and how its logic should lead to a parallel requirement that private citizens should not be chargeable with the commission of official acts as part of a scheme to deprive the public of honest services.
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By Robert J. Anello and Richard F. Albert
By undoing some of the higher profile policy changes of the prior administration that many perceived as business-friendly, the current administration has served notice on the business and financial community of a return to practices characteristic of a more aggressive enforcement regime.
By Veeral Gosalia
Major crisis events, such as political uprisings or financial downturns, are typically followed by an increase in fraud in the business sector and heightened risk to corporate IP and other sensitive information. Anecdotally, this seems to be proving out again in the recent and ongoing fallout from the pandemic. Even before this Great Resignation movement, corporations across the globe were reporting increases in suspicious activity, data leakage, IP theft and other data risks stemming from departing employees and remote workers.
By Nola B. Heller and Samson Enzer
This article discusses the potential criminal and civil penalties that companies can face if their employees engage in insider trading in digital assets, and suggests several measures that exchanges can take to reduce their exposure from such risks.
By David Saunders and Julian L. André
The past 12 months have seen a steady drumbeat of action by federal law enforcement and regulatory agencies of which in-house counsel should take note. Whether new guidance, regulation, investigations, or enforcement activity, the message is clear: The federal government is paying close attention to how companies are handling and protecting their data — especially consumer and sensitive data.