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Business Crimes Bulletin
Corporate ESG Integration Not Optional
Alexandra Poe and Bryan Sillaman
Corporate ESG (environmental, social and governance) integration is becoming less optional every day, driven by increasing regulation, investor demand and the recent embrace of stakeholder capitalism.
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Cybersecurity Law & Strategy
California Privacy Protection Agency Roster Set
Mike Scarcella
California named five members to the inaugural board of the California Privacy Protection Agency, a new entity created by voters in 2020 that will enforce the state’s sweeping consumer privacy laws.
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Business Crimes Bulletin
Congress Leaves SEC Subject to Litigation Over Disgorgement
Sarah Aberg and Chris Bosch
Buried in the massive National Defense Authorization Act for Fiscal Year 2021 is §6501, a provision authorizing the SEC to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others.
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Business Crimes Bulletin
Criminal Liability of Executives and In-House Attorneys for Corporate Actions
Joseph G. Poluka and David J. Oberly
Data breaches, while frequent in number and severity, remain big news events today. Even more newsworthy is when a corporate in-house attorney is criminally prosecuted in connection with his role in responding to a data breach event.
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Commercial Leasing Law & Strategy
Can Landlords and Tenants Stipulate to Rent Regulation?
Jeffrey Turkel
Legal disputes as to the rent regulated status of an apartment are as old as rent regulation itself. On occasion, landlords and tenants have purported to “agree” in a lease or stipulation as to whether a unit is regulated. This article surveys case law as to how courts treat such agreements.
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Cybersecurity Law & Strategy
Telehealth Enforcement: Is It the Next Big Thing?
Ty E. Howard, Scarlett S. Nokes, Gene R. Besen and Jason P. Mehta
With the start of the Biden administration and a DOJ very likely led by Merrick Garland, predictions have begun about future trends in government enforcement. Two pieces of conventional wisdom emerge: First, the focus will shift to more white-collar crime enforcement actions. And second, the healthcare industry will continue to be a major focus for investigators and prosecutors.
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Business Crimes Bulletin
Anti-Money Laundering Enforcement Update
Kyle R. Freeny and Benjamin G. Greenberg
Over the last decade or so, anti-money laundering (AML), counter-terrorism financing (CFT), and sanctions compliance have been the subject of increased enforcement efforts. We expect this trend to accelerate in 2021 and beyond, propelled at least in part by the recent enactment of the Anti-Money Laundering Act of 2020.
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Commercial Leasing Law & Strategy
NY Court Rewrites Rules On Liquidated Damages In Surrender Agreements
Adam Leitman Bailey and Dov Treiman
In a recent decision, the NY Court of Appeals handed down a decision with a new interpretation of the law of liquidated damages with regard to surrender agreements. Trustees of Columbia v. D’Agostino rewrites the rules of when a tenant simply gives up on the space.
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Commercial Leasing Law & Strategy
Drawing the Line Between Real Property and Personal Property In the UCC
Barbara M. Goodstein
The back-and-forth is certainly confusing, but what is clear is that it can be unclear exactly where the line between real property and personal property should be drawn.
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Business Crimes Bulletin
Congress Expands SEC Powers Just In Time for New Administration
Robert J. Anello and Richard F. Albert
Wall Street has greeted Gary Gensler’s nomination as Chair of the SEC with some trepidation, perhaps with good reason. Congress, by contrast, may have presented him with a powerful signing bonus.
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Cybersecurity Law & Strategy
NY Proposed Privacy Bill of Rights Could Add to Compliance Confusion
Frank Ready
New York Gov. Andrew Cuomo’s executive budget proposal includes plans for a comprehensive data privacy law that rather than bring more clarity to an increasingly fragmented U.S. privacy landscape, could place even more strain on corporate legal departments attempting to get a handle on compliance.
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The Intellectual Property Strategist
From the PTO to the FDA: What to Consider When Branding Clinical Trials
Brandon Leahy Susanna Lichter and Eva Yin
The legal implications of branding generally arise initially for companies during the process of selecting a company name and any initial product or service names. For drug development companies, however, careful consideration should also be paid to the implications of branding a clinical trial.
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The Bankruptcy Strategist
The Small Business Reorganization Act: How It Started. How it’s Going. Where to Next?
Jack O’Connor
By further expanding access to a streamlined Chapter 11 process, the SBRA will ensure that a wider array of debtors have the ability of reorganizing themselves, when Chapter 11 was previously too cost-prohibitive for such debtors.
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Business Crimes Bulletin
Second Circuit Ruling on Personal Benefit Test Widens Scope of Criminal Insider Trading
Robert J. Anello and Richard F. Albert
The holding in Blaszczak significantly widens the scope of criminal insider trading. It also creates the anomaly of extending the criminal law beyond the SEC’s civil enforcement authority.
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Business Crimes Bulletin
SCOTUS Set to Address Circuit Split in Interpreting CFAA
Elkan Abramowitz and Jonathan S. Sack
The Computer Fraud and Abuse Act (CFAA) is the sort of broadly worded criminal statute which gives white-collar prosecutors considerable power — and makes defense counsel and judges uneasy. The meaning of “or exceed[ing] authorized access” is not so clear.
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Cybersecurity Law & Strategy
Corporate Compliance Programs and the DOJ’s Emphasis on Data Analytics: What Companies Need to Consider
Jonathan B. New, Jimmy Fokas, Patrick T. Campbell and Bari R. Nadworny
In recent months, the U.S. Department of Justice has raised expectations for companies to use data analytics to monitor the effectiveness of their compliance programs and to identify potential misconduct.
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Cybersecurity Law & Strategy
Fall 2020 Data Privacy Updates
Rebecca Perry
America and the EU continue altering data privacy frameworks for businesses.
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Business Crimes Bulletin
No ‘Fishing’ In Trump Tax Return Case
Steven A. Cash
“Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime.” Judge Victor Marrero, writing in a decision dismissing the President’s civil suit under the Civil Rights Act, neither gives a fish, nor teaches how to fish — rather he explains what fishing is.
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Business Crimes Bulletin
The ‘Right to Control’ Wire Fraud Theory Should Be Eliminated
Harry Sandick and Ian Eppler
In recent decades, federal fraud prosecutions have relied on the theory that a defendant can fraudulently deprive a victim of the intangible “right to control” its assets, even if the victim is not deprived of any tangible money or property. While this theory has been repeatedly affirmed by the Second Circuit, it is incompatible with a series of recent Supreme Court cases in which the Court has narrowed the scope of federal white-collar criminal statutes by adopting narrow definitions of the term “property.”
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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
DOJ’s China Initiative Poses Growing Risks for Those with Chinese Ties
John N. Joseph, Carolyn H. Kendall and Yune D. Emeritz
In the two years since it’s unveiling, the Initiative has expanded its scope from prosecutions of individuals suspected of stealing for China to those who simply have Chinese ties. The department is now increasing its mission to investigate individuals who are merely associated with Chinese recruitment programs.
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New York Real Estate Law Reporter
Ninth Circuit Upholds Most FCC Restrictions on Local Government Review of Wireless Installations
Steven M. Silverberg and Katherine Zalantis
The Ninth Circuit Court of Appeals’ recent decision in City of Portland v. Unites States significantly affects the ability of local governments to regulate the installation of so called “small cell” wireless facilities and addresses the ability of wireless providers to utilize utility poles.
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The Bankruptcy Strategist
COVID Shutdown Orders v. Statutory Rent Obligations
Brett S. Theisen and Mark B. Conlan
Even though payment of post-petition rent under a nonresidential lease (prior to rejection) has historically been an absolute requirement, bankruptcy courts, as courts of equity, have the ability during these extraordinary times to take a more flexible approach.
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The Intellectual Property Strategist
Deciphering the USPTO’s Material Alteration Standard for Amending Marks
Chris Bussert
As brands mature over time, their owners often seek to update marks that are subject to a federal registration or registration application. In some cases, the impetus for the amendment may be deliberately to freshen, tweak, or otherwise modernize the subject mark. In other cases, brand owners may recognize after the fact that their current usage of a mark does not match the mark as originally registered or applied for.
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Business Crimes Bulletin
Corporate Compliance Programs and the DOJ’s Emphasis on Data Analytics: What Companies Need to Consider
Jonathan B. New, Jimmy Fokas, Patrick T. Campbell and Bari R. Nadworny
In recent months, the Dept. of Justice has raised expectations for companies to use data analytics to monitor the effectiveness of their compliance programs and to identify potential misconduct.
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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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Business Crimes Bulletin
Particularized Pleading of Underlying Illegal Acts in the Second Circuit
Steven Paradise and Matthew Catalano
Gamm v. Sanderson Farms, establishes a high burden for a plaintiff to plead adequately failure to disclose illegal conduct — regardless of how much circumstantial evidence a plaintiff is able to amass or how much news coverage the alleged conduct attracts.
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Business Crimes Bulletin
The Updated FCPA Resource Guide
Jacqueline C. Wolff
Something Old, Something New, Something Borrowed, Something Blue
this second edition contains some new “hypotheticals” — facts of actual cases the DOJ finds important enough to focus on — and, in keeping true to its name, has included additional resources and links for chief compliance officers looking to design and audit their companies’ anticorruption compliance programs.
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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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Business Crimes Bulletin
Where Will the Needle Land?
Scott Pink and John Dermody
COVID-19 Contact Tracing v. Protecting Personal Privacy
As states roll back stay-at-home orders, contact tracing has quickly emerged as an essential tool to manage the spread of the coronavirus and allow the country to return to work safely. But innovative contact tracing methods raise a host of privacy concerns, forcing a reckoning with how we balance privacy and public health.
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The Bankruptcy Strategist
The Bankruptcy Code’s Anti-Discrimination Section and COVID-19
Andrew C. Kassner and Joseph N. Argentina Jr.
The pandemic has spurred analysis of legal issues as businesses grapple with their respective relationships with both private and public entities. In this article, the authors examine Section 525 of the Bankruptcy Code — the anti-discrimination section, and its implications during COVID-19.
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Cybersecurity Law & Strategy
Lessons Learned from Recent FTC Data Security Enforcement Orders
Julia B. Jacobson, Natalia J. Kerr and Courtney K. Stout
Proposed class actions against Zoom are illustrative of a challenge many businesses face: what is “reasonable” data security? The FTC’s key data-security-related enforcement can help guide businesses in developing their data security programs.
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Business Crimes Bulletin
Shareholder Class Actions During, and After, COVID-19
Margaret A. Dale and Mark D. Harris
Given the current turmoil in the markets, an increasing number of plaintiffs are bringing shareholder class action suits, citing corporate statements about COVID-19. As first-quarter earnings season draws to a close, now is a good time to reflect on the shareholder class actions that have been brought to date related to COVID-19, and others potentially yet to come.
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Business Crimes Bulletin
What TARP Investigations Can Teach Us About Stimulus Fraud
Terence M. Grugan, David L. Axelrod and Emilia McKee Vassallo
For more than 10 years, federal investigators have investigated criminal conduct in connection with the 2008 recession-era TARP program. From those investigations, U.S. Attorneys across the country brought cases and earned convictions for offenses spanning the federal criminal code. We can expect that these same agencies will use the same techniques and strategies to investigate crimes and bring cases involving fraud related to the COVID-19 stimulus packages.
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Business Crimes Bulletin
SEC Targeting Fraudulent Disclosures During Pandemic
Russell Koonin and Adam Schwartz
In the midst the current COVID-19 pandemic, the SEC is paying attention. The Division of Enforcement has made clear that it will act, and act quickly, to stop fraudulent conduct that falls under its jurisdiction related to the pandemic.
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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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Accounting And Financial Planning For Law Firms
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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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
Corporate Criminal Liability in the COVID-19 Era
Carolyn H. Kendall
Compliance Programs Offer Companies an Opportunity to Mitigate Risk
This article outlines the principles of corporate criminal liability, including the factors prosecutors consider when making charging decisions, and the potentially available sanctions in light of applicable U.S. Sentencing Guidelines, and offers strategies for minimizing risk, including lessons from recent criminal enforcement actions.
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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
Defending FCA Actions Related to Pandemic Programs
Steve Sozio, Rebecca Martin, Rajeev Muttreja and Mark Rotatori
There will likely be some fraud in connection with the pandemic-related programs that should be pursued by the DOJ and the Inspectors General, who have said they will keep close eyes on these programs. They will have no shortage of targets, given the many recipients of government funds, and the breadth of the requisite certifications.
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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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Cybersecurity Law & Strategy
A CCPA Private Right of Action on the Horizon
David Keating, Jim Harvey and Dan Felz
Class Action Complaints Test Whether Plaintiffs Can Sue for Any Violation of the CCPA
This article provides an overview of how the CCPA addresses private rights of action, summarizes recent class action complaints that attempt to use CCPA violations as the basis for class-wide claims, and provides suggestions for prioritizing activity in CCPA compliance programs in this new litigation environment.
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Cybersecurity Law & Strategy
Privacy and Compliance Services: Why the Market Is Rumbling Against the Big Four
Leigh Vickery
With the advent of stringent privacy regulations in Europe and the United States, corporations are spending more time and money scrambling to ensure their privacy and compliance processes are able to withstand these high levels of scrutiny. At the same time, competition to provide these services is heating up as the Big Four professional services firms plant their stakes more broadly in this fertile ground.
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The Intellectual Property Strategist
IP News
Shaleen J. Patel
VARA Lives On: A $6.75M Lesson on Respecting Moral Rights
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Cybersecurity Law & Strategy
COVID-19: Companies, Trade Organizations Seek to Postpone CCPA Enforcement Date
Dan Clark
Over 30 trade associations and companies co-signed a letter last month to California Attorney General Xavier Becerra asking him to push back the enforcement date for the California Consumer Privacy Act due to the new coronavirus and a lack of clarity on the enforcement rules.
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Cybersecurity Law & Strategy
The California Consumer Privacy Act is HERE: Are You Litigation Ready?
Ann Marie Mortimer, Jason J. Kim and Lisa J. Sotto
Most companies doing business in California are well aware of the CCPA and prepared diligently in advance of the law’s Jan. 1, 2020 compliance deadline. While compliance certainly is key, even compliant businesses must consider — and prepare for — the eventual onslaught of class action litigation that is coming.
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Cybersecurity Law & Strategy
States Take the Lead on Securing IoT
Ashley Thomas
The California IoT Security Law is the first of its kind in the nation and pushes device manufacturers to adopt cybersecurity standards during the product development and design stages where none have existed before.
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New York Real Estate Law Reporter
Neighbor Standing to Challenge SEQRA Determinations
Stewart E. Sterk
When does an immediately adjacent neighbor have standing to challenge a SEQRA determination? In Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals, the Court of Appeals made it clear that adjacent neighbors have presumptive standing to challenge zoning determinations.
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