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The Intellectual Property Strategist
How the Changing Concept of ‘Work’ May Jeopardize Employers’ IP Ownership
Sarah Schaedler and Jennifer T. Criss
A key step to ensure that employers own their intellectual property is having employees sign agreements which assign to the employer all intellectual property created in the course of employment.
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Business Crimes Bulletin
Second Circuit Narrows Reach of Wire Fraud and Insider Trading Prohibitions
Harry Sandick, Anna Blum and Abigail Marion
The Second Circuit's long-anticipated decision in United States v. Blaszczak limits the government’s ability to bring fraud or insider trading prosecutions where the information used to achieve an advantage is regulatory information held by the government. It also brings the Second Circuit in greater alignment with the Supreme Court’s wire fraud jurisprudence.
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Entertainment Law & Finance
Online Extra: Live Nation Taps Prominent Antitrust Attorney Ahead of Congressional Showdown
Chris O’Malley
Girding itself for scrutiny by Congress and regulators over anti-competitive concerns, Live Nation Entertainment has retained prominent antitrust attorney-turned-lobbyist Seth Bloom.
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Business Crimes Bulletin
Regulators Reaching Deep In Their Toolbox to Prosecute Users of Encrypted Messages
Andrey Spektor and Laura S. Perlov
If you use Whatsapp or similar platforms for work-related communications, then you’ve probably heard that regulators are putting an end to that practice. Ephemeral and encrypted messaging, they have noted, evades monitoring and prevents retention. A seldom used doctrine allows prosecutors to charge executives with misdemeanor offenses just for being in the position of power when others commit the misconduct. Rather than take a wait-and-see approach, companies and their leaders would do well to prepare for prosecutors to reach deep into their toolbox.
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Business Crimes Bulletin
SEC Tightens Rules on Scheduling Trades In Advance
Maria Dinzeo
General counsel may find themselves pulled into difficult conversations with top executives as the Securities and Exchange Commission tightens its rules on company insiders looking to dump their stock.
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Entertainment Law & Finance
Copyright Claims Board: Now Entering the “Active Phase"
Michelle Davis
2023 is shaping up to be a big year for small claims. Since making its debut in June of 2022, the Copyright Claims Board (CCB) has received over 250 claims, and at least 11 have made it to the “active phase,” with more on the way. Active phase means a respondent was served, failed to “opt out,” and now the esteemed three-member tribunal of copyright experts may finally get a chance to make some rulings.
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New York Real Estate Law Reporter
Court Declines to Block Retroactive Application of HSTPA
Randi Beth Gilbert, Richard T. Walsh, Jillian N. Bittner, and Niles C. Welikson
The Housing Stability and Tenant Protection Act amended the Rent Stabilization Law and, among other draconian changes, severely curtailed landlords’ incentives to modernize and otherwise improve rent regulated apartments by limiting the ability to recover the costs of individual apartment improvements (IAIs) to vacant apartments.
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Business Crimes Bulletin
Trouble Prosecuting Trump Allies Signifies DOJ’s Difficulties In Prosecuting Non-Traditional Foreign Influence Cases
Robert J. Anello and Richard F. Albert
Despite the broad language of the Espionage Act, the DOJ has faced significant hurdles in pursuing prosecutions outside the traditional espionage context, and particularly where the alleged foreign agent’s activity involves ostensibly legitimate international business dealings.
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Entertainment Law & Finance
The NFT Market and Fallout from the FTX Scandal
Mark Cianci, Charles Humphreville, Kelley Chandler and Ty Owen
The FTX bankruptcy scandal that has shaken the largely unregulated cryptocurrency world has slowed but isn’t likely to end the roll-out of celebrity-related, non-fungible digital token (NFT) offerings. But how might the FTX story impact a push for federal regulation of the NFT market?
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Business Crimes Bulletin
Cryptocurrency: Rich In Investment Opportunity; Ripe for Fraud Schemes
Melissa Davis and Mark Parisi
The recent implosion of FTX Trading leaves investors and their advisers wondering whether any crypto investment is safe. There have been dozens of cryptocurrency-related fraud schemes in recent years including Ponzi schemes and investment schemes using crypto and the blockchain to facilitate the fraud scheme.
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The Intellectual Property Strategist
Are You Ready for Europe’s New Patent System?
Marianne Schaffner and Thierry Lautier
In Europe, the patent system is changing and will offer to companies a new patent protection and a new patent court. It should start in April 2023, with a sunrise period starting in January 2023.
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Business Crimes Bulletin
What the SEC May Be Signaling Through Its Approach to NFTs and F-NFTs
Mark Cianci, Charles Humphreville, Kelley Chandler and Ty Owen
Recent actions by the U.S. Securities and Exchange Commission (SEC), together with certain statements by SEC commissioners, may indicate a shift in approach toward a rebuttable presumption that digital assets are securities, without deference to formal legal tests.
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Business Crimes Bulletin
Impact of ‘Hoskins’ Cases on the FCPA and White-Collar Law
Elkan Abramowitz and Jonathan Sack
This article examines the impact of Hoskins on three issues of importance to white-collar practitioners: the scope of the FCPA; the interpretation of white-collar criminal statutes; and the authority of the district court to consider at the outset of a prosecution threshold questions of the reach of the law to foreign individuals.
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The Intellectual Property Strategist
Criminal Considerations and Federal Authorities In Trade Secrets Disputes
Jeffrey A. Pade and Anand B. Patel
Part One of this article discussed the passing of the Economic Espionage Act to combat the growing concerns surrounding trade secret theft and the criminal components of trade secret theft. Part Two covers considerations in favor of approaching federal authorities on trade secrets theft. Part Three concludes the series with a look at the potential consequences in approaching federal authorities on trade secrets theft.
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Cybersecurity Law & Strategy
Data Minimization Meets Defensible Disposition: Just Say No to ROT and Over-Retention of Personal Information
Martin Tully and Nick Snavely
Like a good diet and regular exercise for the body, data minimization and routine, defensible purging of outmoded documents are essential to maintaining healthy organizational information hygiene.
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Business Crimes Bulletin
Using Anti-Bribery and Corruption Regimes for ESG Concerns
Stephanie Yonekura, Ann Kim and Derek Centola
Compliance leaders recognize that Environmental, Social and Governance (ESG) is a growing concern for U.S. companies, but face challenges in determining how to embed compliance structures into their programs. One solution is to look to already existing anti-bribery and corruption (AB&C) compliance measures.
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Business Crimes Bulletin
Insider Trading Evolving Beyond Just Securities As DOJ Targets NFTS and Crypto
Robert J. Anello and Richard F. Albert
In two recent notable cases involving NFTs and cryptocurrency markets, the DOJ has brought insider trading charges under the wire fraud statute without claiming that any securities were involved. These cases demonstrate the substantial flexibility federal prosecutors have — or at least believe they have — in charging insider trading and underscore the oft-recognized need for a federal statute expressly addressing insider trading.
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Business Crimes Bulletin
Regulators Renew Focus on Individual Liability for Gatekeepers
Robert Stern and Sarah Coyne
A rising tide of regulation is headed for corporate compliance officers and in-house lawyers. Corporate accountability is a key priority for the DOJ and SEC, and both agencies have renewed their focus on individual liability for gatekeepers, including lawyers, accountants, underwriters and auditors.
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Business Crimes Bulletin
Recent Decisions Fill Gap In §951 Notification Requirement for Agents of Foreign Governments
David Aaron
The Northern District of Illinois recently issued an opinion which criminalizes acting in the United States as an agent of a foreign government without notifying the attorney general.
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Cybersecurity Law & Strategy
Arm Yourself Against Crypto Regulatory Uncertainty
Kristin L. Burnett
The promise that the crypto and digital assets markets bring comes bundled with uncertainty — especially on the regulatory front. Until jurisdictions adopt unified and consistent frameworks that account for the unique facets and features of cryptocurrencies, institutional investors and other market participants must keep abreast of ever-changing, dynamic laws to avoid sanctions and fines.
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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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The Intellectual Property Strategist
WTF? The Board Weighs In on Failure to Function Refusals
Christopher P. Bussert
Many trademark practitioners have noted the USPTO’s recent penchant for issuing refusals to register trademarks on the ground of failure to function as a trademark. The Trademark Trial and Appeal Board picked a colorful case to set precedent and provide some initial guidance on how it will evaluate failure-to-function refusals going forward.
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The Intellectual Property Strategist
Criminal Considerations and Federal Authorities In Trade Secrets Disputes
Jeffrey A. Pade and Anand B. Patel
Part Two of a Three-Part Series
Part One of this article discussed the passing of the Economic Espionage Act to combat the growing concerns surrounding trade secret theft and the criminal components of trade secret theft. Part Two covers considerations in favor of approaching federal authorities on trade secrets theft.
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Business Crimes Bulletin
New Fraud Section Chief Talks Corporate Compliance
Andrew Goudsward
After nearly nine years in the private sector, Glenn Leon returned to the U.S. Department of Justice to take over a section that has grown both in staff and in stature as it pursues some of the government’s biggest white-collar cases.
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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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