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The Bankruptcy Strategist
Unforeseen Consequences for Bankruptcy Practice In CARES Act
Sourav Chaudhuri and Gregory Plotko
This article highlights several of these outcomes and discrepancies of the CARES Act stimulus package, including how accepting crisis funding could lead to a company becoming more distressed, how bankruptcy courts are inconsistently ruling on the ability for Chapter 11 debtors to receive PPP loans and how changes to the Bankruptcy Code altered the rights of equity holders and debtholders.
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Business Crimes Bulletin
The Potential for Fraud or Misbehavior In the Time of COVID-19
A roundtable discussion on the topic of government investigations, corporate compliance efforts, and the potential for fraud or misbehavior in the time of COVID-19.
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Commercial Leasing Law & Strategy
NYC Law Providing Relief for Commercial Tenants Faces Constitutional Scrutiny
Ian Steinberg
New York City Mayor Bill de Blasio delivered another striking blow to property owners when he signed into law N.Y.C. Council Int. No. 1932-A (2020) on May 26, 2020. The new legislation prohibits landlords from enforcing personal guaranties on certain commercial leases for defaults occurring between March 7, 2020 and Sept. 30, 2020.
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Accounting And Financial Planning For Law Firms
The SECURE and CARES Acts Change Required Minimum Distributions
Sidney Kess
A key aspect of saving for retirement through qualified retirement plans and IRAs is deferring taxes until required minimum distributions (RMD) begin. Even with Roth IRAs, beneficiaries who inherit them must also follow RMD rules despite the tax-free treatment of the distributions. The SECURE Act and the CARES Act made dramatic changes in RMD rules for 2020 and beyond.
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Business Crimes Bulletin
Is an ‘Official Act’ An Element of Public and Private Corruption?
Elkan Abramowitz and Jonathan S. Sack
This article discusses cases that have begun to address whether “official act” is an element in a private honest services fraud prosecution.
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Business Crimes Bulletin
Lessons from the Insider Trading Prohibition Act After Its Likely Demise In the Senate
Telemachus P. Kasulis
For a moment there, it really looked like it was going to happen. After a long and winding road, insider trading reform had reached the floor of the House of Representatives for a vote. The Insider Trading Prohibition Act (ITPA) had support on both sides of the aisle and on Dec. 5, 2019, the House voted to pass the ITPA. Then the bill went to the Senate and vanished. We should take this opportunity to learn what lessons we can from the successes and failures of the ITPA as a bill with an eye toward fashioning the best possible legislation next time — whenever that may be.
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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
Recent Decisions Clarify Scope of Illinois Biometric Privacy Law
Frank Nolan and Andrew Weiner
For users of biometric information subject to BIPA’s rigorous requirements, the last two years have brought mostly bad news, most notably a smattering of unfavorable decisions on the question of whether plaintiffs must suffer an injury in order to avail themselves of BIPA. Against this backdrop, however, courts have issued decisions on other aspects of BIPA
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Entertainment Law & Finance
Agreement to Amend CA’s AB5 Helps Music Industry
Sidney S. Fohrman and Ariel D. Shpigel
After over a year-and-a-half of lobbying efforts by the music industry and negotiations with lawmakers, it was recently announced that AB5 would be amended to accommodate musicians’ unique niche in the California economy.
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Business Crimes Bulletin
Defending FCA Actions Related to Pandemic Programs
Steve Sozio, Rebecca Martin, Rajeev Muttreja and Mark Rotatori
With the federal government appropriating more than $2 trillion for businesses affected by the COVID-19 pandemic, plaintiffs’ lawyers, regulators and politicians have trumpeted the search for whistleblowers — many of whom will try to cash in on perceived fraud in the funding programs created by the CARES Act and other enactments.
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Business Crimes Bulletin
CARES Act Puts Inspectors General Back in the Spotlight
Daniel R. Alonso, Preston Burton and Meredith Leeson
IGs have been part of the federal landscape for more than 40 years, so why all the fuss now? The answer is that they are a key element of the government’s built-in mechanisms for protecting the nation’s public treasury, and a relief package of this scope strongly indicates that the IGs and the new oversight bodies will spend many years scrutinizing funds spent under it.
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Business Crimes Bulletin
Prosecuting PPP Fraud May Be Harder Than It Seems
Christopher M. Ferguson
This article discusses what tools the government has for pursuing seemingly undeserving PPP borrowers, the obstacles to bringing such cases, and the factors that may influence the government’s decision in pursuing criminal or civil cases.
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Cybersecurity Law & Strategy
New Jersey’s Latest Effort on the Privacy Front
Kenneth K. Dort and Mitchell S. Noordyke
New Jersey legislators are joining a growing line of states in proposing a bill to strengthen data privacy protections, following in the footsteps of privacy laws enacted in Europe and California.
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The Bankruptcy Strategist
Asset Protection, Pre-Bankruptcy Planning and Code §727(a)(2)(A)
Carlos J. Cuevas
This article examines asset protection and pre-bankruptcy planning and its impact on a debtor’s discharge through Bankruptcy Code §727(a)(2)(A).
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Cybersecurity Law & Strategy
Florida Lawmakers Introduce Online Privacy Legislation
David M. Stauss and Malia Rogers
Florida lawmakers have introduced companion bills in the Florida House (HB 963) and Senate (SB 1670) that would create limited online privacy rights and obligations in the state. The legislation appears to be very similar to the Nevada Online Privacy Protection Act, which was amended last year to add a right to opt-out of sales of covered information.
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Cybersecurity Law & Strategy
A Look Behind, A Look Ahead: Part 1 - Cybersecurity
Steve Salkin
Cybersecurity Law & Strategy partnered with our ALM sibling Legaltech News to ask cybersecurity and e-discovery experts what they thought the key trends were in 2019 and what they expect to see in 2020.
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Cybersecurity Law & Strategy
Data Privacy: Building Compliant and Adaptable Systems
Tomas Suros
Rather than trying to institute changes to comply with every new privacy law as it emerges, a better approach is to view data privacy as an overall framework and adopt a holistic response to compliance with the built-in flexibility to constantly adapt to an ever-changing legal landscape.
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Commercial Leasing Law & Strategy
Recent Investigation, Prosecution and Legislation Regarding Fraudulent Deeds
Carol A. Sigmond
New York City is seeing an upsurge of deed theft. Attorneys, architects, title companies, real estate brokers, agents, contractors, developers and construction managers need to be alert to this potential issue when blocks of properties are assembled for development in these neighborhoods.
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Cybersecurity Law & Strategy
GDPR Had Some Bite in 2019
Victoria Hudgins
Although no company was hit with the maximum GDPR fine of 4% of the company’s worldwide annual revenue, GDPR fines issued in 2019 were still a force to be reckoned with.
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Commercial Leasing Law & Strategy
What is the Difference Between Flexible Space Models and Traditional Office Leasing?
Elizabeth Kluger Cooper and Zach Boroson
Market forces — such as workplace design, demographics and urbanization, capital flow and technology — are driving the growth of flexible space.
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Cybersecurity Law & Strategy
A Survey of Proposed Federal Privacy Legislation and the Year Ahead
Jeffrey Atteberry
The social, economic, and political forces pushing for a comprehensive overhaul of the nation’s privacy regime are numerous, and many see 2019 as presenting the best opportunity yet for passage of federal data privacy legislation.
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The Intellectual Property Strategist
The DTSA’s Jurisdictional Nexus, Three Years In
Conor Tucker
The Defend Trade Secrets Act (DTSA) requires pleading a connection between a trade secret, a product or service, and interstate commerce. But failure to prove such a connection divests the district court of subject matter jurisdiction. This article summarizes the first three years of cases discussing the jurisdictional element and explores implications.
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Cybersecurity Law & Strategy
Federal Data Privacy Legislation Is Likely Next Year, Tech Lawyers Say
Dan Clark
For Years, Federal Legislators Have Attempted to Pass Comprehensive Cybersecurity and Data Privacy Legislation. With More Support Than Ever from the Public, Industry and Both Sides of the Political Spectrum, 2019 May Be the Year When Such Legislation Is Enacted.
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The Bankruptcy Strategist
Second Circuit Rejects Arbitration of Debtor’s Asserted Discharge Violation
Michael L. Cook
A bankruptcy court properly denied a bank’s motion to compel arbitration of a debtor’s asserted violation of the court’s discharge injunction, the U.S. Court of Appeals for the Second Circuit held.
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Cybersecurity Law & Strategy
Georgia Gov. Deals a Blow to Controversial Cybersecurity Bill
Gabrielle Orum Hernández
Gov. Nathan Deal opted to veto a cybersecurity bill criticized by technology groups that would have made “unauthorized computer access” a crime.
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Entertainment Law & Finance
New Federal Tax Act Gives New Life, and Twists, to Treatment of Film, TV and Stage Productions
Thomas D. Selz and Bernard C. Topper Jr.
Section 181 of the IRC has provided benefits to both producers of movies and television programs and — under pass-through legal structures such as limited liability companies — to their investors. Now, with the enactment of the sweeping new federal tax law, §181 has been given new life, with a couple of additional benefits and a couple of additional twists.
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The Bankruptcy Strategist
Bankruptcy Venue Reform Bill Introduced
Adam Schlagman
On Jan 8, 2018, Senators John Cornyn (R-TX) and Elizabeth Warren (D-MA) introduced the Bankruptcy Venue Reform Act of 2018, which is designed to prevent forum shopping in Chapter 11 bankruptcy cases, a practice that has resulted in a concentration of bankruptcy cases in a few districts.
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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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The Corporate Counselor
Quarterly State Compliance Review
Sandra Feldman
This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect from Oct.1, 2017 to Jan. 1, 2018. It also looks at recent decisions of interest from Delaware.
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The Corporate Counselor
Labor and Employment Law Changes in the Trump Era
Matthew B. Schiff and Kathryn C. Nadro
President Trump's first 11 months in office brought significant changes to labor and employment law. Immediate changes to the leadership and agendas for the DOL, the EEOC and the NLRB) have already occurred, along with reversals of policy and positions taken in court.
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New York Real Estate Law Reporter
The Consequences of Imperfect Foreclosure Affirmations
Stewart E. Sterk
Where the borrower's default is not in dispute, the First Department appears to have recognized that there is little reason to delay the inevitable foreclosure. Discussion of a case in point.
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The Corporate Counselor
Quarterly State Compliance Review
Sandra Feldman
This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect between Aug. 1 and Oct. 1, 2017, including amendments to Delaware's corporation and LLC laws.
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Business Crimes Bulletin
A Broadening Consensus to Narrow Asset Forfeiture
Edmund W. Searby
The Supreme Court as a whole appears aligned and motivated to review critically federal and state asset forfeiture procedures. In addition, Attorney General Sessions last month restored the federal forfeiture of property seized by state and local law enforcement ("federal adoptions"), but with certain additional safeguards.
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The Corporate Counselor
Website Accessibility: The Law and Your Business Priorities
Matthias L. Niska
Many businesses have never thought to ask whether their customer-facing websites are accessible to people with disabilities, and only become aware of the issue when they are sent a demand letter or served with a lawsuit alleging that their site violates the Americans with Disabilities Act (ADA). Although an ever-increasing number of such demand letters and lawsuits are cropping up each year, the issue of website accessibility remains entirely foreign to many, perhaps most, business owners.
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Employment Law Strategist
The 'Faltering Company' and 'Unforeseen Business Circumstances' Exceptions Under The WARN Act
David Van Pelt
Traps for the Unwary or Lifesavers for the Unlucky?
The WARN Act contains several affirmative defenses that provide employers with a complete defense to liability under the statute when a company's exigent condition forces an immediate cessation of operations. This article identifies the key features (including the benefits and drawbacks) of each.
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The Intellectual Property Strategist
Online Extra
After Years of Setbacks, Patent Owners Try to Turn Tide in Congress
Scott Graham
Patent owners have taken control of the patent reform debate in the 115th Congress, but it’s not clear yet who’s supposed to be listening.
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Internet Law & Strategy
Does the Auxiliary Aids Standard Apply To Websites?
Robert A. Naeve and Jaclyn B. Stahl
Gil v. Winn-Dixie Stores, Inc.
After years of demand letters, complaints and settlements, a website accessibility lawsuit under Title III of the Americans with Disabilities Act finally went to trial. The case is remarkable not just because it is the first of its kind to go to trial, but also because the court's opinion does not consider whether a website owner can employ alternatives other than WCAG 2.0 to make website content "accessible."
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Medical Malpractice Law & Strategy
Genomic Testing: The Perils and the Pitfalls
Linda S. Crawford
There are pitfalls for providers and companies that offer genomic testing. They might include not offering genetic testing if it is indicated, not offering the proper testing, or reporting inaccurate or misleading results. Each of these has the potential to generate a lawsuit, and indeed each of them already has.
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The Corporate Counselor
What Can We Tell About the Trump Administration’s Focus on Compliance?
Annette K. Ebright and Sarah F. Hutchins
There are a few early signs that the Trump administration will continue to hold companies to the “way of compliance.” But after the first five months of his presidency, there are still questions about where enforcement is heading in specific compliance areas.
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The Bankruptcy Strategist
POCs and the FDCPA: A License to File
Chris Hawkins and Karlene Archer
Buyers and servicers of "stale," or time-barred, debt have been watching the bankruptcy and appellate courts closely of late, as court after court has ruled on whether a key component of their recovery strategy -- seeking payment related to such time-barred debts by filing proofs of claim in bankruptcy -- violates the Fair Debt Collections Practices Act (FDCPA).
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Business Crimes Bulletin
SEC Takes Aim at Political Contributions by Investment Advisers
Joseph F. Savage, Jr. and Stephanie M. Aronzon
While it remains unclear both when the regulators will invoke their authority to enforce the nearly limitless strict liability provision of the rules and how they will determine the appropriate remedy, the recent settlements and the SEC's handling of exemptive relief petitions may provide some clues.
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Business Crimes Bulletin
The Clock Is Ticking
Jonathan B. New and Marco Molina
Courts Check Government Attempts to Extend the Statute of Limitations
Part Two of a Two-Part Article
When the SEC and other government regulatory agencies pursue civil enforcement actions against those accused of financial fraud, they often attempt to recover monetary penalties and fines for periods of time even outside the limitations period. This effort is being met with resistance by the courts. The authors conclude their discussion herein.
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