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Business Crimes Bulletin
Carrots and Sticks: DAG Lisa Monaco Puts Her Stamp on DOJ’S Corporate Criminal Enforcement Policies
Harry Sandick and Hilarie Meyers
Going back many decades, each Deputy Attorney General (DAG) has promulgated revisions to the DOJ’s corporate criminal enforcement policies, leaving behind eponymous policy memos that were carefully studied by defense attorneys. Like her predecessors, Deputy Attorney General Lisa Monaco has been quick to announce a series of revisions to DOJ’s corporate criminal enforcement policies and practices.
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Business Crimes Bulletin
The Great Pandemic Heist: PPP Loan Fraud
Edward T. Kang
In the COVID-19 era, there has been a heist of great value, but it has not gone undetected. Prosecutors have called the heist the largest fraud in U.S. history, with the thieves stealing hundreds of billions of dollars in taxpayer money through fraudulently obtained Paycheck Protection Program (PPP) loans.
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New York Real Estate Law Reporter
When Do COVID-19 Shutdown Orders Excuse Lease Guarantors?
Stewart E. Sterk
Section 22-1005 of the New York City Administrative Code provides relief for individuals who guaranteed commercial leases when the tenant defaulted as a result of government orders issued during the early days of the COVID-19 pandemic. In recent months, however, litigation has emerged about the scope of that relief.
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Commercial Leasing Law & Strategy
Do COVID-19 Shutdown Orders Excuse Lease Guarantors?
Stewart E. Sterk
Section 22-1005 of the New York City Administrative Code provides relief for individuals who guaranteed commercial leases when the tenant defaulted as a result of government orders issued during the early days of the COVID-19 pandemic. In recent months, however, litigation has emerged about the scope of that relief.
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Business Crimes Bulletin
Questions Surround Expanded Government Authority to Seize Russian Assets
Robert J. Anello and Richard F. Albert
The purpose behind the Biden Administration's proposals to seize assets of Russian oligarchs is to punish a specific action by a state actor — Russia’s invasion of Ukraine. The proposals, however, do not appear to be limited to this conduct alone and would outlast Russia’s invasion. In times of war, it at least arguably may be appropriate to pass laws to expand the executive’s authority to address specific hostile conduct. Such laws, however, should end with the conflict.
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Business Crimes Bulletin
Feds Jumping Into Corporate Privacy and Cybersecurity Enforcement
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.
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Business Crimes Bulletin
Are Government Investigation Disclosures Protected Under the Common Interest Doctrine?
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.
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Entertainment Law & Finance
Newberg, McCabe, Carson Will Preside Over Copyright Claims Board
Scott Graham
The U.S. Copyright Office has found some big names for its Copyright Claims Board.
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Business Crimes Bulletin
Government Secret Recording of Interviews Rarely In Best Interests of Witness
Joel Cohen
Secretly recording conversations or interviews is a dirty business, and it is almost never conducted by the government with the best interests of the witness in mind.
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Cybersecurity Law & Strategy
National Security Implications of the Colonial Pipeline Hack
Emil Sayegh
It is difficult to think of a comparable cyber event to the one that effectively shut down the fuel pipeline that feeds over a third of the United States. We are in the midst of a national cyber crisis, and while we may have a blueprint for the resolution of these other crises, things must urgently change on the cybersecurity front.
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Cybersecurity Law & Strategy
One Solution on How the U.S. Government Can Compete for Top Cybersecurity Professionals
Daniel B. Garrie and Douglas A. Smith
While the private sector is undeniably in great need of cybersecurity professionals, the public sector must compete for the limited supply of qualified candidates, particularly those capable of filling high-level positions.
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Commercial Leasing Law & Strategy
Government Policies Could Be Concern for Commercial Real Estate Lenders
Les Shaver
Significant concerns aren’t necessarily issues caused by real estate lending, borrowing or underwriting. They’re caused by government policy.
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Cybersecurity Law & Strategy
Automated License Plate Recognition and Privacy
David Horrigan
Just what is automated license plate recognition technology, and do you really have a reasonable expectation of privacy in a number emblazoned on the front of your Ford or the back of your Buick?
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Business Crimes Bulletin
Don’t Set It & Forget It: The Importance of Evaluating & Evolving Healthcare Compliance Programs
Brian Bewley, James D. Gatta and Kaitlyn L. Dunn
The federal government won or negotiated over $2.6 billion in healthcare fraud judgments and settlements in 2019. The government’s investment of resources toward combatting fraud, waste and abuse in healthcare can be expected to continue in full force, irrespective of a change in political administration. Accordingly, it is important for healthcare companies to focus on maintaining flexible and effective compliance programs.
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Business Crimes Bulletin
An Ounce of Prevention: Preparing for CARES Act Fraud Investigations
Nekia Hackworth Jones
The government appears to be fulfilling its commitment to rooting out PPP fraud, even when the amount at issue falls below the $2 million threshold. No matter the size of the loan, a company that obtained PPP funds is not immune from a possible government investigation or audit. Borrowers have already started to submit loan forgiveness applications, and many more will be submitted in the weeks ahead, and both lenders and the government will be scouring these submissions for red flags.
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Cybersecurity Law & Strategy
Cybersecurity False Claims Act Cases: The Next Frontier
Andrew Mohr and C. Kelly Kroll
A new wave of False Claims Act cases is crashing ashore. Based on the federal government’s inclusion of toughened cybersecurity requirements for government contractors, numerous FCA cases will undoubtedly be filed and litigated in coming years against prime contractors and their major subcontractors for allegedly failing to comply with their contractual cybersecurity obligations.
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Business Crimes Bulletin
The Yates Memo is Here to Stay: Signs of Increasing Efforts to Hold Individuals Criminally Liable for Corporate Wrongdoing
Carolyn H. Kendall and Yune D. Emeritz
It is axiomatic that companies cannot do wrong without the actions of individuals. However, the trend over the past few decades, with a few exceptions, has been that individuals generally were not prosecuted for their roles in corporate wrongdoing that harmed the public welfare. However, there appears to be a recent escalation in prosecutions of corporate executives.
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Cybersecurity Law & Strategy
Will the EU-Japan Data Transfer Partnership Agreement Have Global Influence?
Samantha Green
With countries around the world examining and strengthening their data protection laws, this agreement could be the first of many and will undoubtedly have global repercussions.
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Business Crimes Bulletin
“Spoofing” as Fraud: A Novel and Untested Theory of Prosecution
Jodi Misher Peikin and Justin Roller
The DOJ has signaled its intent to pursue prosecutions for spoofing — which the law defines as “bidding or offering with the intent to cancel the bid or offer before execution” — aggressively. This article begins with a brief discussion of the elements that the government must prove to establish commodities fraud and wire fraud. It then examines recent spoofing prosecutions that raise important questions about the applicability of the traditional fraud statutes to spoofing-related activity. How the federal courts answer these open questions will have significant implications for participants in the commodities markets.
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Business Crimes Bulletin
FCA Cases: Convincing DOJ to Move to Dismiss
Jacqueline C. Wolff
Recent actions by the DOJ suggest that although the DOJ may continue to prosecute certain relators’ FCA cases, other relators may find themselves on the other side of a government motion to dismiss.
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Cybersecurity Law & Strategy
Elections: The Hidden Security Danger for Governments
Roy E. Hadley, Jr.
The news is replete with alleged actions of foreign governments and hackers trying to impact the democratic election process in the United States. It is incumbent upon the state and local governments to ensure the security of all elections.
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Cybersecurity Law & Strategy
Cybersecurity for Government: Lessons from the Front Line
Roy E. Hadley, Jr.
During the time it takes you to read this article, somewhere in the United States, a governmental entity will probably be the victim of a cyber-attack. This article highlights the areas that are most impactful, based on experience in dealing with both large and small cyber-attacks against governments and governmental entities.
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Business Crimes Bulletin
Are Allegations of Lack of Medical Necessity in False Claims Act Cases a Basis for Settlement or Trial?
Jacqueline C. Wolff
Lessons Learned from Recent Settlements and Decisions
Health care fraud and False Claims Act cases continue to generate a significant source of funds for the Federal Government.
Although, when announcing its focus, the government listed treatment options are not always clear. What these settlements often have in common is that the underlying complaints allege that the services that were rendered and reimbursed lacked medical necessity.
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The Bankruptcy Strategist
Defusing the UST Tax Bomb
Jacob H. Marshall
How Lenders and Debtors can Minimize UST Fees and Maximize Creditor Recoveries
As predicted in the first part of this article (May, 2018), the new United States Trustee (UST) fee has had a disproportionate effect on middle-market, high-velocity cash flow companies. The best solution is for Congress to revisit the fee structure and refine it to reflect the realities of particular cases and the actual burden on the UST.
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Business Crimes Bulletin
Coordination or Duplication? DOJ Adopts New Policy to Prevent ‘Piling On’ of Corporate Penalties
Jonathan B. New and Victoria L. Stork
In May 2018, the Department of Justice (DOJ) announced a new policy to address a growing problem in white-collar criminal and civil enforcement. With increased…
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Business Crimes Bulletin
Hidden ‘Time’ Bombs in White-Collar Criminal Matters
Robert J. Anello and Justin Roller
Part One of a Two-Part Article
What was once perceived as a straightforward limitation on the government’s significant enforcement powers has become obscured by statutes and court interpretations that tend to elongate the period for the government to act in ways that often are not transparent to even experienced criminal practitioners.
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Commercial Leasing Law & Strategy
Opportunity Zones and Commercial Real Estate
Erika Morphy
One of the many provisions of last year’s tax overhaul was the creation of a little-noticed program called Opportunity Zones, which was designed to give investors tax breaks for investments in designated areas. Now, attention is starting to pick up as the program takes shape.
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The Intellectual Property Strategist
The Price to Pay for De Novo Review of PTO Decisions
Jonathan Moskin
NantKwest v Iancu
The Federal Circuit sitting en banc reversed its own prior ruling and held that “all expenses of the proceeding” does not include attorneys’ fees.
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Business Crimes Bulletin
Addressing Disproportionate Forfeitures: Refining the Bajakajian Analysis
Harry Sandick, Daniel Ruzumna and Jacqueline Bonneau
Part Two of a Two-Part Article
In Part One, we discussed the public concern over unfairness in asset forfeiture and analyzed the Supreme Court case — United States v. Bajakajian — that looked to the Excessive Fines Clause to limit the government’s authority to forfeit property. In Part Two, we consider possible reforms that would allow defendants to challenge forfeitures as disproportionate under a fairer and more appropriate analysis.
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Business Crimes Bulletin
False Claims and Private Equity: The Government’s Increasing Focus on Private Equity Firms in False Claims Act Cases
Yvonne W. Chan and Timothy H. Kistner
The health care industry continues to hold great potential for private equity (PE) firms, but it also carries with it significant risks and potential exposure to liability. As the pressure to find opportunities has increased, there appears to be a greater appetite for riskier investments including into portfolio companies that experienced or are experiencing compliance challenges.
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Business Crimes Bulletin
Another Virtual Currency Player Charged with Fraud by CFTC
Stephanie Forshee
The enforcement action alleges that Las Vegas-based My Big Coin Pay Inc., a virtual currency wallet and platform, misappropriated more than $6 million from its customers for “personal expenses and the purchase of luxury goods.”
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Business Crimes Bulletin
The National Opioid Epidemic: The Emergence of a Multi-Layered Approach
Richard S. Hartunian, Jacqueline C. Wolff and Andrew C. Case
On Oct. 26, 2017, Eric D. Hargan, Acting Secretary of the Department of Health and Human Services, announced that, as a result of the opioid epidemic, “a public health emergency exists nationwide.” As a result, counties, states and the federal government have mounted an attack on the pharmaceutical industry.
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Business Crimes Bulletin
Five Ways to Eliminate the Need for a Corporate Monitor
Jonny Frank and Simon Platt
Government-imposed corporate monitors — once a rare occurrence in the U.S. — are now commonplace, not only with domestic regulators, but also with regulatory agencies in various other countries, in connection with enforcement proceedings and prosecutions for criminal offenses such as anti-corruption violations and other misconduct.
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New York Real Estate Law Reporter
Regulating Interior Landmarks
Stewart E. Sterk
What powers does the New York City Landmarks Preservation Commission (LPC) have to require a building owner to maintain a mechanical clock located in the interior of a building? In Save America’s Clocks, Inc. v. City of New York, that issue generated a 3-2 division in the First Department, with the majority holding that the Commission had power to require maintenance of the clock, and to require public access to it.
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Cooley Saves Patents on Night Vision Goggles From US Challenge
The law firm pulled off a patent coup for its defense contractor client in the U.S. Court of Federal Claims.
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The Corporate Counselor
U.S. Economic Sanctions
Thad McBride
The challenge for U.S. actors is how to comply with the law in the dynamic world of economic sanctions. This article tries to help by pointing out challenging (or “hot”) current issues and making suggestions about compliance strategies that in-house counsel can leverage to address the most challenging compliance issues.
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The Corporate Counselor
FATCA Revamp
Ashley M. Elmore Drew and Adam J. Knight
Will Your Company Be Prepared?
FATCA is an effort by the United States to curb tax evasion and incentivize Foreign Financial Institutions (FFI) to report the overseas assets of U.S. persons. The U.S. encourages compliance by imposing a 30% withholding penalty on all U.S. source income and sale proceeds of non-compliant foreign financial institutions.
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The Corporate Counselor
Internal Whistleblowers
Matthew B. Schiff and Kathryn C. Nadro
SCOTUS Review of Dodd-Frank to Change the Landscape
On June 26, 2017, the Supreme Court granted certiorari in Digital Realty Trust Inc. v. Somers to review a Ninth Circuit decision regarding SEC whistleblowing protections. The Court's ruling is highly anticipated, as it will clarify the landscape for whistleblower protections.
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Business Crimes Bulletin
Third-Party Money Launderers
Justin du Rivage
Each year, the U.S. government secures more than 1,200 money-laundering convictions. Now, the Federal Bureau of Investigation (FBI), at least, is setting its sights with renewed vigor on those who help criminal organizations and terrorists conceal billions in illicit funds.
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Cybersecurity Law & Strategy
Cyber Spies: In-House Legal Fights Back Against Cyberespionage
Ricci Dipshan
An Exploration of the Modern Cyberespionage Threat and How In-House Legal Departments Are Fighting Back
Though faced with limited legal remedies, counsel are coming up with creative new ways to go after cyberespionage actors, and partnering with an array of cyber professionals and government agencies to combat the threat.
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Commercial Leasing Law & Strategy
Eminent Domain: Establishing the Highest and Best Use
Janice G. Inman
When a building or lot is taken through eminent domain, the value of the property often becomes a matter of dispute between the government and the owner. What if the property had the potential to become more developed?
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