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Cybersecurity Law & Strategy
The Information Governance Groundhog Day Syndrome
Ben Schmidt and Nathan Curtis
Security and privacy start with good information governance, and for many firms — trying to get their information governance policy implemented feels a lot like Groundhog Day. Yes, the one with Bill Murray. Let’s take a closer look.
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Cybersecurity Law & Strategy
Compliance for Privacy Officers on the New Canadian Consumer Privacy Protection Act
John Beardwood and Shan Arora
Part Three In a Series
Part Three continues the analysis of new compliance requirements in Canada's new Consumer Privacy Protection Act, including the content of organizational privacy policies and anonymization of personal information policies, and business transaction policies contained in the Act.
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Cybersecurity Law & Strategy
Can Regulation Provide Stability Through ‘Cryptocurrency Winter’?
Sean J. Coughlin and Vivian B. Isaboke
It comes as no surprise as we enter the second half of the year that the crypto winter has reinforced the perception of critics that digital currencies are “risky, flawed and unproven digital financial instruments.” This article examines the impact of cybercrimes and crypto bankruptcies on the current market.
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Business Crimes Bulletin
The Selective Prosecution Defense
Evan T. Barr
This article explores the law on selective prosecution and why, despite the long odds against success, it may still make sense from a defense perspective to assert the claim.
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Commercial Leasing Law & Strategy
NY’s Guaranty Law Adds to Uncertainty for Both Landlords and Tenants
Joshua Kopelowitz and Matthew J. Schenker
A wave of legislation designed to aid tenants during the COVID-19 pandemic has had an outsized effect on commercial landlord-tenant relations in New York City.
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Business Crimes Bulletin
FTC Looks to Focus On Data Privacy and Competition
Isha Marathe
The Federal Trade Commission, under its current chairperson Lina Khan, has released a flurry of press releases and blogs in recent months signaling at a focused commercial surveillance “crackdown.”
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Business Crimes Bulletin
Former SEC Lawyers Dominate Payouts Under Agency’s Whistleblower Program, Study Finds
Andrew Goudsward
The U.S. Securities and Exchange Commission’s widely hailed whistleblower program has paid millions in recent years to former SEC lawyers who have come to dominate the market for representing tipsters seeking payouts through the program, a new study found.
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Commercial Leasing Law & Strategy
The Federal Reserve Publishes Policy on CRE Loan Accommodations and Workouts
Erik Sherman
Many in commercial real estate, especially relatively new to the industry and without extensive previous experience, are making use of leverage in ways that are problematic under the higher interest rates the Fed has instigated to head off inflation.
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Business Crimes Bulletin
Upcoming Webinar
Join Board of Editors member Jacqueline Wolff and David Smith of Manatt, Phelps & Phillips on Oct. 13 as they delve into the new SEC disclosure rules on climate change risks.
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Business Crimes Bulletin
The Regulators Are at the Gates: Significant New AML Legislation Nears Passage
Patrick T. Campbell, Jonathan B. New and Francesca A. Rogo
Over the past few years, Congress and law enforcement have notably increased their scrutiny of companies’ anti-money laundering compliance, and it appears that Congress is not yet finished with its drive for additional legislation and regulation.
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The Bankruptcy Strategist
Update On Preference and Fraudulent Transfer Litigation
Michael L. Cook
The appellate courts have been busy explaining or clarifying preference and fraudulent transfer law. Although novices may think the Bankruptcy Code (Code) is clear on its face, imaginative counsel have found gaps in the statute and generated rafts of litigation since the Code’s enactment in 1979. Recent appellate decisions, summarized below, show that courts are still making new law or refining prior case law.
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Business Crimes Bulletin
New Securities Suits Up Slightly, Despite Stock Drops
Ross Todd
Given the recent stock market carnage, one might expect that the courts were flooded with a fresh batch of securities suits. Stock drops, after all, are one necessary ingredient of stock drop suits. But according to Cornerstone Research’s mid-year assessment of new filings, the number of new class action securities cases filed in the first half ticked up only slightly compared to the first half of 2021.
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Cybersecurity Law & Strategy
Data Rights, Data Duties, & Data Risks: The American Data Privacy and Protection Act
Rita W. Garry
While the ADPPA represents compromises between Democratic and Republican leadership of the U.S. Senate and House of Representatives, particularly around the thorny issues of state law preemption and private rights of action, there are other legislative and big tech industry players pushing their own agendas for comprehensive national data privacy and security frameworks.
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Cybersecurity Law & Strategy
Not Just Your Same Old Privacy Legislation: A Compliance Briefing for Privacy Officers on the New Canadian Consumer Privacy Protection Act
John Beardwood and Shan Arora
Part One In a Series
This article, which reviews the Canadian Consumer Privacy Protection Act, first seeks to identify the delta between the Act and PIPEDA in order to allow privacy officers of organizations that are already PIPEDA compliant to identify the net new compliance requirements under the Act and second, to highlight the provisions of the Act which, if breached, could lead to the imposition of significant fines.
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Cybersecurity Law & Strategy
California’s Latest Privacy Rulemaking Proposes Further Obligations for Businesses
Kyle Fath, Alan Friel, Shea Leitch and David J. Oberly
While the the California Privacy Protection Agency kicked some of the more difficult issues down the road for further consideration, its first draft of proposed Regs is quite comprehensive with respect to the issues addressed. The authority for some of what is proposed is questionable and will likely be challenged in comments, if not judicial action, if such provisions become final.
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Cybersecurity Law & Strategy
Online Accessibility and SEO
Sarah Brodsky
How can you make your user experience the best it can be for all potential clients, and lead with empathy and equity as you demonstrate your knowledge? That’s where your law firm’s SEO strategy comes into play.
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Business Crimes Bulletin
Using Artificial Intelligence In White-Collar Matters
Robert G. Heim
AI currently is playing a growing role in helping white-collar lawyers and their clients analyze vast amounts of data to uncover insights, connections, and patterns that would be impossible to detect through manual reviews. This article provides an introduction to AI technology and discusses the key regulatory developments practitioners should be aware of as they advise their clients on AI.
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Business Crimes Bulletin
White-Collar Enforcement Under the Biden Administration
Nate Robson
After much saber-rattling, the Biden administration’s focus on white-collar corporate compliance is finally coming into focus. Law firms and white-collar compliance experts have long warned the administration’s ramped-up focus was coming, but the pandemic largely nixed any initiatives. A spate of recent settlements coupled with the addition of a new white-collar leader at the U.S. Department of Justice is giving the public a look into what compliance will look like under Biden.
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Commercial Leasing Law & Strategy
Use and Enforcement of SNDAs In the Hotel Industry
Todd E. Soloway and Bryan T. Mohler
This article examines the agreement — known as a Subordination, Non-Disturbance and Attornment Agreement (SNDA) — typically used by hotel lenders, owners and managers to set forth their respective rights upon a foreclosure, and consider disputes that may arise when a party seeks to enforce its SNDA rights.
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Business Crimes Bulletin
Efforts to Provide Out-of-State Abortion Travel Benefits Face Rapidly Shifting Legal Landscape
Jessica Mach
Employment attorneys say the breadth of new state laws — and the pace at which they are going into effect — means in-house counsel at companies trying to create workarounds for employees in states with restrictive abortion laws by providing benefits that would allow them to travel out-of-state to access abortion services will need to be on high alert, since keeping up on top of the laws will be key to limiting their exposure to litigation — or even criminal penalties.
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Commercial Leasing Law & Strategy
Regulatory Compliance and Investor Demand for Transparency Driving ESG Efforts
Paul Bergeron
Regulatory considerations and investor demand for transparency are increasingly important drivers behind Environmental, Social and Governance (ESG) disclosure and reporting frameworks, according to a report issued by The CRE Finance Council (CREFC) based on responses from its members.
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Business Crimes Bulletin
DOJ NFT Insider Trading Indictment Skirts Securities Question, But Litigates Like It Is
Isha Marathe
The question of whether an NFT is a security has come up several times, and United States of America v. Chastain in the Southern District of New York brings the dispute back to the forefront.
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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
The FRCP Rule 9(b) Standard In False Claims Act Cases
Michael A. Sirignano
In recent years, federal circuit courts of appeals have set forth somewhat different standards that civil FCA complaints brought by private citizens, known as relators, must meet to satisfy Rule 9(b) — especially regarding whether representative examples of allegedly fraudulent claims must be included in a complaint.
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Business Crimes Bulletin
Companies Need to Focus On Compliance to Protect Against Aggressive Post COVID-19 White-Collar Prosecution
G. Zachary Terwilliger
Consider another paradox of the post-COVID world: The pandemic that initially disrupted federal prosecution of corporations has now heightened potential exposure in a number of areas. This is especially the case for those organizations that took advantage of government aid or today struggle to navigate snarled global supply chains.
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Business Crimes Bulletin
Climate Change Risk and Disclosure: A New Focus for SEC Enforcement
Jacqueline C. Wolff
Given the massive amount of dollars being poured into ESG funds and the SEC’s renewed focus on both the funds and the companies in the funds, there is no time like the present for companies to engage in an assessment of their climate risks and how these risks and the status of the companies’ ESG goals are being relayed to investors.
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Commercial Leasing Law & Strategy
Commercial Real Estate Market Sees Shift Toward ‘Densification’ As Firms Look Long Term
Jessie Yount
Real estate executives say the construction of the office of the future is well underway within the legal industry, despite a dip in leasing activity at the beginning of the year. However, there is a shift toward “densification,” as firms take advantage of favorable market conditions and make longer-term commitments.
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Business Crimes Bulletin
Government Looking Into Insider Trading By Tipping Block Trades
Michael Miller and Daniel Podair
How the government might frame insider trading cases based on allegations of tipping before the execution of block trades in securities.
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The Bankruptcy Strategist
Why Subchapter V Is More Appealing Than Chapter 11 for Small Businesses
By Stuart B. Newman and Steven H. Newman
The Small Business Reorganization Act created a new pathway for small businesses to remain in control of running their businesses, which is the usual reason for choosing to seek relief under Chapter 11, while eliminating many of the reasons that typical Chapter 11 proceedings exhausted the patience, and wallets, of both debtors and creditors.
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Business Crimes Bulletin
Individual Liability and Criminalizing Cybersecurity Response
Jonathan S. Sack and Christopher M. Hurley
To date, cybersecurity has generally been viewed as an organizational responsibility, and data breaches similarly have been treated as organizational weaknesses or failures. Against this backdrop of organizational responsibility, the Department of Justice has brought a noteworthy criminal case against an individual for his personal response to a corporate data breach.
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Entertainment Law & Finance
SAG-AFTRA’s Influencer Agreement and Waiver
Francelina M. Perdomo
For years, the legal framework governing the collaboration between influencers, advertisers and brands has been comparable to the Wild West, presenting multiple legal challenges to navigate. Influencer marketing exponentially grew when the COVID-19 pandemic drew performers to social media as the principal outlet to connect with their audience. As a result, SAG-AFTRA decided to venture into the fast-growing influencer market.
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Cybersecurity Law & Strategy
California Consumer Privacy Law Cases Climbing, and Not Just In California
Jessica Mach
Plaintiffs filed 145 lawsuits last year to enforce provisions under the CCPA, a 60% increase from 2020. Lawsuits alleging violations of the California law were also filed across the country, pending at one point in 33 courts across 20 states.
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Business Crimes Bulletin
Repairing the Foreign Agents Registration Act
Harry Sandick and George Carotenuto
In recent years, mostly due to the well-publicized prosecution of Trump campaign manager Paul Manafort, FARA has become more of a focus for federal prosecutors. As a result, white-collar attorneys have been consulted more often about whether particular conduct requires registration under the Act.
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Accounting And Financial Planning For Law Firms
The Biden Administration’s 2023 Budget: Déjà Vu All Over Again
Lawrence L. Bell
The Treasury’s Greenbook commenting and explaining budget recommendations for FY 2023 raises warnings of tax increases. But what are the odds Congress passes anything before the midterm elections this November? This article presents a summary of the proposed tax increases and the likelihood of these provisions being enacted into law.
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Business Crimes Bulletin
Strategies for Advising Foreign Clients As DOJ Pursues Extraterritorial Criminal Cases
Emil Bove
This article addresses some issues to consider, including foreign arrest procedures, contesting extradition, and engaging with prosecutors before a defendant arrives in the United States.
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Commercial Leasing Law & Strategy
Fifth Circuit Ruling Gives Commercial Lessees Likely Protection In Bankruptcy Court Free and Clear Asset Sales
Michael L. Cook
The Fifth Circuit signaled that it would not approve in later cases a bankruptcy court asset sale of real property that summarily cuts off the rights of the debtor’s lessees.
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The Bankruptcy Strategist
Fifth Circuit Resolves ‘Clash’ Between FERC and Bankruptcy Courts
Douglas S. Mintz and Michael L. Cook
A Chapter 11 debtor’s “rejection [(under Code §365(a)] of a filed-rate [natural gas] contract … relieve[d] it of the obligation to continue performance absent the approval of FERC [(the Federal Energy Regulatory Commission],” held the U.S. Court of Appeals for the Fifth Circuit.
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Business Crimes Bulletin
The FTC Gets Into the College Athlete NIL Game
Nicole Demas, L. Andrew Tseng and Sean P. McConnell
As national champions are crowned in men’s and women’s basketball, hundreds of thousands of college athletes are entering the influencer marketplace for the first time and now find themselves attractive candidates in the fast growing influencer marketing arena. With influencer marketing potentially providing a 5x return on investment, many brands are eager to get into the industry, but it doesn’t come without risks as the FTC Commissioner is taking a closer look at the use of influencers for marketing.
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Business Crimes Bulletin
First Dark Web Insider Trading Case Shows Government Active In Policing Tech
Ian McGinley
In a first of its kind prosecution, the Southern District of New York brought an insider trading case against defendant for selling inside information on the Dark Web. The SEC also brought a civil regulatory action against the defendant for the same conduct. In a rare move, however, SDNY and SEC charged this same conduct under different insider trading statutes. This difference underscores the legal complexities involved when the origin of inside information in the digital world is unknown.
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Commercial Leasing Law & Strategy
Landlords Turn the Tech to Keep Up With Sustainability Requirements
Paul Bergeron
Government policies are pushing landlords to meet new sustainability requirements, heaping pressure on investors to back up their efforts to go green. In response, more owners are relying on AI and other technologies to help them meet the challenge and avoid steep financial penalties.
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Business Crimes Bulletin
Second Circuit ‘Connolly’ Ruling Shows Limits of Mail and Wire Fraud Statutes
Elkan Abramowitz and Jonathan Sack
The Connolly decision draws attention to the limits of the mail/wire fraud statutes — laws that are quite expansive but can also be stretched too far when applied to conduct in financial markets, especially markets tied to opaque rules and practices.
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Cybersecurity Law & Strategy
SEC Proposed Rules Include Disclosure of Cybersecurity Risk Assessment Strategy
Greg Andrews
Cybersecurity compliance, already an anxiety-inducing topic for many in-house counsel, is about to get even trickier. The SEC rolled out a host of proposed new cybersecurity rules for public companies.
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The Bankruptcy Strategist
Wrestling With the Meaning of ‘Ordinary’ Under the Bankruptcy Code
Andrew C. Kassner and Joseph N. Argentina Jr.
The Bankruptcy Code protects regular, ordinary commercial transactions between distressed companies and vendors willing to continue the relationship. But what is ordinary?
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Business Crimes Bulletin
Inside Cryptocurrency Pump-and-Dump Schemes
Jonathan Bick
Cryptocurrency pump-and-dump schemes (CPDs) are becoming increasingly prevalent. As in the case of traditional “pump and dump” schemes, CPDs lead to short-term trading perturbations — exaggerated increases and/or decreases in prices, volume, or volatility.
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Commercial Leasing Law & Strategy
How the SEC’s ESG Disclosure Rules Might Effect Commercial Real Estate
Erik Sherman
After years of discussions and hints, the Securities and Exchange Commission (SEC) finally released its proposed environmental disclosure rule for public company reporting. Getting the information and making the determinations will be a challenge for any sized company that comes under the SEC’s purview. But there are significant questions about who is responsible for gathering and reporting information from commercial real estate facilities.
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Cybersecurity Law & Strategy
Cyber-Insecurity: Will the Looming Regulatory Crackdown on Cybersecurity Practices Help Protect Financial Institutions from Attack?
Lori Van Auken and Adam Jamieson
A slew of new regulations targeting the cybersecurity practices of financial institutions will come into effect during 2022. But will they have any real bearing on protecting financial firms from attack?
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Cybersecurity Law & Strategy
The Rise of False Claims Act Cybersecurity Litigation
Annie Railton, James Gatta, Jud Welle and Emily Notini
While the DOJ Civil Cyber-Fraud Initiative is still in its early stages and cybersecurity regulations are evolving, whistleblower plaintiffs have already begun leveraging the FCA to pursue alleged noncompliance with government cybersecurity requirements.
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Entertainment Law & Finance
Artist’s Talent Agencies Act Claim In CA Doesn’t Bar Personal Managers’ NY Lawsuit
Stan Soocher
What happens if a personal manager files a lawsuit in a court outside of California against a talent client who has raised a California Talent Agencies Act claim in California?
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The Intellectual Property Strategist
Litigating Redesigns At the ITC
Frank Liu, Dustin Ferzacca and Gwen Tawresey
An overview of redesigns at the ITC, a discussion of the ITC’s recent determination in Certain Audio Players and Controllers, and identifies some considerations to keep in mind when litigating redesigns at the ITC.
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Business Crimes Bulletin
The DOJ Goes Phishing: The Rise of False Claims Act Cybersecurity Litigation
Annie Railton, James Gatta, Jud Welle and Emily Notini
While the DOJ Civil Cyber-Fraud Initiative is still in its early stages and cybersecurity regulations are evolving, whistleblower plaintiffs have already begun leveraging the FCA to pursue alleged noncompliance with government cybersecurity requirements.
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