Government

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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