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Cybersecurity Law & Strategy
Virtual Reality or the New Reality of Virtual Practice?
Mark Sangster
In response to the worst period on record for cyber attacks, the ABA published Formal Opinion 498 to address practicing law outside of the traditional brick-and-mortar office environment. It reminds lawyers that while the ABA Model Rules permit virtual practice, they provide minimum requirements and recommendations for virtual practice, particularly in the areas of competence, confidentiality and supervision.
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Business Crimes Bulletin
Best Practices for Investigations In Remote Environments
Colin Jennings, David Meadows, Nicole Wells and John Winkler
The landscape of corporate investigations has changed dramatically in the last year. New regulations, new market pressures, new data sources and more challenging…
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The Bankruptcy Strategist
Escape New York: Court Dismisses NRA’s Chapter 11 As Improper Tactic to Avoid New York’s Non-Profit Regulatory Scheme
Steven B. Smith and Silvia Stockman
This article explores the competing factors the Bankruptcy Court considered and the rationale underlying its decision to grant the drastic relief of dismissing the NRA’s bankruptcy case.
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Business Crimes Bulletin
Attorney Competence In Technology Is In the Spotlight. Are You Competent?
Tomas Suros
A summary of the key technology principles addressed in Formal Opinion 498, in which the ABA revised Model Rule 1.1 addresses virtual work environments and practices.
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Rent Act of 2015 Did Not Re-Regulate Deregulated Apartments
Tenant Waiver of Claims for Lost Profits Upheld
Landlord Not Liable for Tenant on Tenant Harassment
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The Intellectual Property Strategist
U.S. IP Reform Needed to Prepare for AI Era
Andrei Iancu and David J. Kappos
For the U.S. to maintain its technological edge, it must encourage Americans to make more discoveries in AI and other emerging technologies. This in turn requires providing strong IP rights to incentivize and protect the huge investments required to make those discoveries.
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Business Crimes Bulletin
Use of Deferred Prosecution Agreements In White Collar Investigations
Elkan Abramowitz and Jonathan S. Sack
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA’s new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
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Commercial Leasing Law & Strategy
American Rescue Plan Act Provides Pandemic Relief for Struggling Businesses
David J. Gellen and Constantine Christakis
As the U.S. economy continues to recover from the pandemic, the American Rescue Plan Act may help many businesses endure and overcome the historic challenges they have faced. While there is still uncertainty as to its impact on our economy, the Act nonetheless is a significant piece of federal legislation.
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Business Crimes Bulletin
Supreme Court Narrowly Interprets CFAA to Avoid Criminalizing ‘Commonplace Computer Activity’
Patricia Kim and Maren Messing
The Court held that only those who obtain information from particular areas of the computer which they are not authorized to access can be said to “exceed authorization.”
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Commercial Leasing Law & Strategy
Commercial Leases and Other Real Estate Transactions Are Subject to National Security Review
Gordon F. Peery
A second wave of national security concerns hit real estate markets in the United States -- the publication of rules focusing on real estate by the U.S. Department of the Treasury is the catalyst of national security reviews of certain leases, purchases, sales, joint ventures and other investments with non-U.S. parties.
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Business Crimes Bulletin
Is a Federal Insider Trading Law Coming?
David L. Axelrod and Hannah L. Welsh
For decades the SEC and the Department of Justice, with the endorsement of federal judges, have used the general securities fraud statutes to patch together a complex and problematic insider trading common law. After years of criticism, however, that could now be changing.
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Cybersecurity Law & Strategy
NY Privacy Act Stalls, Would Escalate Protections Above Other State & International Regulations
F. Paul Greene
The failure of NYPA to pass is not exceptionally noteworthy. What is noteworthy, however, is that it marks an escalation of data privacy protections and restrictions not seen in other major regulatory regimes, whether in the United States or abroad. And since most believe its failure to pass was due more to the end-of-session rush than its contents, don't be surprised if it pops up again in January 2022.
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The Intellectual Property Strategist
DOJ Looking to Develop New SEP Policies
Bruce Love
The Justice Department has confirmed it is looking to develop new policies surrounding how standard-essential patents might be used as tools for anticompetitive practices. The change in policy will mean big business for law firms that can combine highly technical IP advice with their antitrust and litigation practices.
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Commercial Leasing Law & Strategy
ESG Practices, Spurred By Pandemic, Will Play Role In Future of Real Estate Investment
Kelsi Maree Borland
Over the last decade, commercial real estate players have increasingly considered the environment and sustainability when underwriting investments and operating properties, but the pandemic has catalyzed rapid growth in ESG adoption.
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Business Crimes Bulletin
Second Circuit May Address SEC’s ‘Tolling Agreements’ Tool
Tom McParland
The U.S. Court of Appeals for the Second Circuit signaled last month that it may fully address, for the first time, the question of whether a decades-old change to federal law rendered a commonly used tool for extending U.S. Securities and Exchange Commission investigations unenforceable in federal court.
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Cybersecurity Law & Strategy
Where Is the Consumer In Consumer Privacy Legislation?
Rita W. Garry
In the past four months of 2021, the amount of state legislative activity around consumer data privacy laws has been frantic, by state legislatures standards. So much so, it is not easy to discern the cause for all this effort.
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New York Real Estate Law Reporter
Court Addresses Issues Relating to RLUIPA Safe Harbor and the Equal Protection Clause
Steven M. Silverberg
Recently the United States District Court for the Southern District of New York grappled with issues relating to local zoning restrictions on houses of worship.
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Commercial Leasing Law & Strategy
Issues Relating to RLUIPA Safe Harbor and the Equal Protection Clause
Steven M. Silverberg
Recently the United States District Court for the Southern District of New York grappled with issues relating to local zoning restrictions on houses of worship.
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Entertainment Law & Finance
Novel TAA Claim Played Role In Agency’s Suit Against Athlete
Ross Todd
When NBA star Jimmy Butler’s former sports agency sued him last year seeking a portion of the proceeds from a $5 million Nike endorsement contract, Butler’s lawyer didn’t just stick to playing defense.
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Business Crimes Bulletin
Developments in Federal Whistleblowing Programs: What Compliance Officers Need to Know
Jonathan B. New, Patrick T. Campbell and Lauren Lyster
This article examines recent developments and trends concerning federal whistleblower programs that compliance officers need to know and provides best practices recommendations for ensuring that your company maintains a robust whistleblower and anti-retaliation program in light of increased whistleblower activity.
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The Bankruptcy Strategist
Cross-Border Insolvency In Brazil: The UNCITRAL Model Law Dances to A Samba Beat
Nyana Abreu Miller and Raul Torrao
After years of debate, Brazil recently enacted legislation amending its bankruptcy statute and modernizing the Brazilian insolvency system.
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Business Crimes Bulletin
OFAC Asks Non-U.S. Persons to Advance U.S. Foreign Policy
Harry Sandick and Gautam Rao
In recent years, U.S. prosecutors and regulators have shown increasing interest in prosecuting people and entities with little or no connection to the United States. This trend has been especially pronounced in the context of the Foreign Corrupt Practices Act (FCPA) and has also extended beyond the FCPA to the prosecution of white-collar crime more generally.
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Accounting And Financial Planning For Law Firms
The CAA’s Impact on Health and Welfare Plans
Lawrence L. Bell
In addition to funding the government and further COVID-19 relief, the recently signed Consolidated Appropriations Act (CAA) included significant provisions impacting health benefit coverage.
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Commercial Leasing Law & Strategy
Government Policies Could Be Concern for Commercial Real Estate Lenders
Les Shaver
Significant concerns aren’t necessarily issues caused by real estate lending, borrowing or underwriting. They’re caused by government policy.
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Commercial Leasing Law & Strategy
Negotiating with Small Office Tenants on Pandemic Issues
Erika Morphy
Small businesses make up the backbone of the commercial office sector. Until recently, by virtue of their small size, they had little sway with landlords when it came to renegotiating or negotiating a lease. Then the pandemic happened.
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Business Crimes Bulletin
Scared of Your Clients’ Involvement With Cryptocurrency?
Ross Benson and Robert N. Driscoll
Given the rapid expansion of interest and participation in cryptocurrency transactions, it’s not a matter of whether you have an interest in crypto, think it’s all a bizarre techno-bubble, the eventual replacement for fiat currency, or somewhere in between. The fact of the matter is your clients, and future clients, are more likely than ever to have a connection to this market, and a brief review of the headlines can make this prospect seem terrifying.
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Business Crimes Bulletin
Telehealth: The Wave of the Future for Both Medicine and Enforcement
Jacqueline C. Wolff and Michael Herrmann
The prevalent view is that telehealth will remain an integral part of our healthcare system post-PHE and may even continue to expand. And that means criminal and civil enforcement focused on fraud committed using, or furthered by the use of, telehealth will be expanding as well, particularly when one looks at the dollars that a regulator can bring in for fraud or noncompliance.
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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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