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Marketing The Law Firm
AI Regulation: What’s Coming and What You Need to Do
Kim Peretti, Dan Felz and Alysa Austin
Part One of a Two-Part Article
Despite the steady growth of global AI adoption, there is no comprehensive federal legislation on AI in the United States. Instead, the U.S. has a patchwork of various current and proposed AI regulatory frameworks. It is critical for organizations looking to harness this novel technology to understand these frameworks and to prepare to operate in compliance with them.
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Cybersecurity Law & Strategy
How to Avoid Running Afoul of Privacy Laws
Dan Panitz and Jerry McIver
Privacy laws and enforcement are causing big changes to global commerce and have now arrived at our doorstep. The million dollar questions are how this will affect our businesses and what, if anything, do we need to do about it?
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Cybersecurity Law & Strategy
Will Section 230 Protect AI Chatbots?
Cassandre Coyer
The lack of answers from the Supreme Court regarding the scope of Section 230 of the 1996 Communications Decency Act comes at a time when legal questions around generative AI are mushrooming.
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Business Crimes Bulletin
ITC General Exclusion Orders Targeting All Importers Are On the Rise
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For importers of products potentially implicated by a requested GEO, the GEO can be a major threat even if the importer is not a respondent in the case.
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The Intellectual Property Strategist
IP Considerations for ITC General Exclusion Orders
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For IP owners facing infringing imported products from numerous elusive sources, a GEO can be a powerful remedy to tackle all infringing products at once.
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Business Crimes Bulletin
Ticket Resellers’ Campaign Raises Securities Law and Money Laundering Issues
Chris Castle
Some markets allow for the sale of a future contract for tickets that have not gone on sale as yet (i.e., “speculative ticketing”). The future contract, like an option or a commodities future, allows someone to purchase the right to buy a ticket once the tickets are offered for sale. This seems to implicate securities law issues, broker-dealer regulations and potentially the general solicitation rule.
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Cybersecurity Law & Strategy
INFOGRAPHIC: Keeping Up with the Evolving Patchwork of Laws: An Interactive Map of State Privacy Laws
CLS Staff
An Interactive Map of State Privacy Laws
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Rio Tinto’
Anthony Michael Sabino
Part Three of a Three-Part Article
The first two installments exposited Janus Capital Group, Inc. v. First Derivative Traders and Lorenzo v. S.E.C., both essential to understanding S.E.C. v. Rio Tinto, the Second Circuit’s most recent holding regarding Rule 10b-5 “scheme” liability. Now we examine how the “Mother Court” of federal securities law has tended to that branch of the mighty judicial oak rooted in that venerable regulation.
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Business Crimes Bulletin
Acquitted-Conduct Sentencing: A Quagmire Neither the Supreme Court Nor the U.S. Sentencing Commission Can Continue to Avoid
Harry Sandick and Nicole Scully
It has been common knowledge to criminal practitioners for years that a criminal defendant’s sentence for a crime which they have been convicted can be increased based on consideration of conduct that the jury acquitted. This outcome can make a partial acquittal in federal court into a pyrrhic victory.
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Business Crimes Bulletin
Limitations on Omissions Liability for Opinions Following 'Omnicare'
Gregory Silbert and Joshua Wesneski
“Everyone is entitled to his own opinion, but not his own facts.” The Supreme Court has applied this maxim to the securities laws, holding in Omnicare v. Laborers District Council , that while statements of opinion generally are not actionable, there are some narrow circumstances in which such statements entail or imply false or misleading assertions of fact.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Lorenzo’
Anthony Michael Sabino
Part Two of a Three-Part Article
This three-part series discusses the Second Circuit’s recent Securities law landmark case, S.E.C. v. Rio Tinto. However, in order to discuss Rio Tinto, it is important to first understand the Supreme Court landmark cases upon which Rio Tinto is based: Janus Capital Group, Inc. v. First Derivative Trader, discussed in the first installment, and S.E.C v. Lorenzo, discussed here.
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New York Real Estate Law Reporter
Revision to the Definition of ‘Waters of the United States’
Steven M. Silverberg
In April of 2020, the EPA and the Department of the Army began the process of revising the definition of the term Waters of the United States (WOTUS). After the new administration took office in 2021, a new final rule was recently published. The changes are scheduled to take effect this year. The definition is significant for a multitude of land uses, as it places limitations on activities that may be conducted within and adjacent to such waters or, in some instances, requires the issuance of permits before certain activities may be conducted.
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Entertainment Law & Finance
Music Publishing and Recording Rates and Royalties 2023: Past, Present and Future
Jeff Brabec and Todd Brabec
Part Two of a Two-Part Article
In the United States and in most foreign countries, the “performance right” is one of the most important rights of copyright and, in many cases, the most lucrative. In the United States, there is no statutory license under the Copyright Act for this right. Songwriters, composers, lyricists (jointly “writers”) and music publishers join these organizations, which in turn negotiate licenses with the users of music, collect the license fees from those users and distribute the monies to writers and publishers based on surveys of performances, specific payment schedules and distribution rules, as well as other factors.
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Entertainment Law & Finance
What’s Happening With the Concerns Over How Event Tickets Are Sold Online?
Stan Soocher
The November 2022 tech meltdown of online access that slowed or barred consumers from buying tickets from Ticketmaster for Taylor Swift’s Eras Tour, her first since 2018 and the largest one-day ticket demand Ticketmaster had ever faced, generated worldwide coverage and outrage from her fans. But the incident also resulted in a sizzling convergence of many of the issues that have plagued online sales of live events for years.
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Commercial Leasing Law & Strategy
New Definition of ‘Waters of the United States’
Steven M. Silverberg
In April of 2020 the EPA and the Department of the Army began the process of revising the definition of the term Waters of the United States (WOTUS). After the new administration took office in 2021, further study was conducted and a new final rule was recently published. The changes are scheduled to take effect this year, if currently pending challenges are unsuccessful.
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Business Crimes Bulletin
Victims’ Rights In Corporate Deferred Prosecutions
Elkan Abramowitz and Jonathan S. Sack
Deferred Prosecution Agreements (DPAs) have become a significant part of white-collar criminal practice. But DPAs are not without controversy. These agreements have been attacked as too lenient, not forcing companies to be held accountable for illegal conduct. They are also seen as a way for prosecutors to appear tough on white-collar crime while not bringing charges against individuals.
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Business Crimes Bulletin
What to Expect from the Next Era In White-Collar Enforcement
Walt Brown, Melinda Haag, Joshua Hill and JiLon Li
In February 2023, in a significant update to its corporate criminal enforcement policies and procedures, the DOJ announced a voluntary self-disclosure policy applicable in all U.S. Attorney’s Offices nationwide. This article discusses the DOJ’s recent pronouncements and recent cases with an eye toward identifying trends that companies should keep in mind when preparing for the next enforcement era.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Supreme Court and ‘Janus’
Anthony Michael Sabino
Part One of a Three-Part Article
This three-part series discusses the Second Circuit’s recent Securities law landmark case, S.E.C. v. Rio Tinto. However, in order to discuss Rio Tinto, it is important to first understand the Supreme Court landmark cases upon which Rio Tinto is based: Janus Capital Group, Inc. v. First Derivative Trader and S.E.C v. Lorenzo. Janus is discussed here in the first installment.
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Business Crimes Bulletin
Securities Litigation In 2023 Showing Continued Muscle Flexing from the SEC
Jay A. Dubow, Joanna J. Cline and Kaitlin L. O’Donnell
Newer trends — such as environmental, social, and governance (ESG), cybersecurity-related disclosure violations, and cryptocurrency regulation — are likely to provide further fuel for securities litigation and enforcement.
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Cybersecurity Law & Strategy
AI Regulation in the U.S.: What’s Coming, and What Companies Need to Do In 2023
Kim Peretti, Dan Felz and Alysa Austin
Part Two of a Two-Part Article
In Part One, the authors addressed the industries most affected by AI, and began the discussion on U.S. federal and state regulations to expect in 2023. Part Two, continues the discussion on potential federal AI regulation and what companies can do to prepare.
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New York Real Estate Law Reporter
The Impact of Local Law 97
Matthew Schneid
Local Law Number 97 was enacted by the City of New York to achieve reductions in greenhouse gas emissions by 2050. This is accomplished by requiring buildings to retrofit their systems with more energy efficient systems or purchase certain permitted carbon offsets.
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Business Crimes Bulletin
The Criminal Division’s Enforcement Policy: What’s New for Companies Deciding Whether to Voluntarily Disclose?
Jacqueline C. Wolff
Since the DOJ announced a new policy under which companies that voluntarily disclosed violations of the Foreign Corrupt Practices Act has attempted to encourage companies to voluntarily disclose all manner of criminal misconduct beyond violations of just the FCPA, while general counsels worldwide have been wrestling with the question of whether and when it is in the company’s best interest to so disclose.
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The Intellectual Property Strategist
How to Diversify the Pool of Inventors — and Improve Innovation
Christine E. Hollis, Jonathan C. Hughley and David C. Read
Efforts to diversify the inventive population will not only foster innovation across a wide range of businesses and industries but will also help greatly expand the pool of inventors across racial, gender and ethnic categories, and the country as a whole will realize numerous benefits.
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Business Crimes Bulletin
SEC to Continue to Punish Wrongdoers and Deter Misconduct
Jonathan H. Hecht and Emily S. Unger
The Division of Enforcement will likely continue to use “every tool in its toolkit” and expect that public companies and other market participants will think rigorously about their business and appropriately tailor compliance practices and internal controls and policies to match.
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The Bankruptcy Strategist
Fifth Circuit Adds Color to Abstention Issue
Francis J. Lawall and Brenden Dahrouge
Rules Bankruptcy Court Lacked Jurisdiction to Decide State-Governed Question
Jurisdictional boundaries within the federal system as between bankruptcy and district courts as well as various federal agencies can be a maze that is at times nearly impossible to navigate. Further complicating matters are those cases involving state-regulated issues that add abstention to the mix.
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Commercial Leasing Law & Strategy
The Impact of Fed Rate Hikes on CRE Financing
Erik Sherman
When experiencing pain, the natural human response is to ask when it might stop. That is what commercial real estate, among other industries, have been doing. When will inflation end and the Federal Reserve stop hiking rates?
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Business Crimes Bulletin
Circuit Split Reflects Disagreement About the Relationship Between Scheme Liability and SEC Rule 10b-5(b)
Stefan Atkinson and Yi Yuan
Historically, federal courts generally agreed that scheme liability under SEC Rule 10b-5(a) and (c) requires something more than a misstatement or omission — with misstatements and omissions typically being litigated under Rule 10b-5(b) instead. However, the SCOTUS in Lorenzo v. SEC held that an individual who disseminates a misstatement, without other fraudulent conduct, is potentially liable under the scheme liability provisions of Rule 10b-5. Subsequently, a circuit split has emerged over the scope of Lorenzo’s holding.
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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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