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Cybersecurity Law & Strategy
Biometric Privacy: A Year In Review (2021) and The Year Ahead (2022)
Lauren Caisman and Christian Auty
The year started with Portland, Oregon’s ban on the use of facial recognition technology by private entities in places of “public” accommodation. It concluded with the rendering of important appellate decisions on the Illinois Biometric Information Privacy Act. In the middle, was the continued flurry of litigation, class action settlements, and legislative activity.
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Business Crimes Bulletin
Biden Administration Corporate Enforcement Policies More Symbolism than Effective Reform
Robert J. Anello and Richard F. Albert
By undoing some of the higher profile policy changes of the prior administration that many perceived as business-friendly, the current administration has served notice on the business and financial community of a return to practices characteristic of a more aggressive enforcement regime.
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New York Real Estate Law Reporter
Enforcement of Obligations Imposed In SEQRA Findings Statements
Stewart E. Sterk
When, at the culmination of environmental review under the State Environmental Quality Review Act (SEQRA), a municipality resolves to require a developer to ameliorate environmental impacts, can anyone other than the municipality itself enforce the requirement?
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Business Crimes Bulletin
With ‘Great Resignation’, Corporations Need to Prepare for the Great Investigation
Veeral Gosalia
Major crisis events, such as political uprisings or financial downturns, are typically followed by an increase in fraud in the business sector and heightened risk to corporate IP and other sensitive information. Anecdotally, this seems to be proving out again in the recent and ongoing fallout from the pandemic. Even before this Great Resignation movement, corporations across the globe were reporting increases in suspicious activity, data leakage, IP theft and other data risks stemming from departing employees and remote workers.
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Cybersecurity Law & Strategy
Cybersecurity and Corporate Privacy Enforcement Is Focus of Feds
David Saunders and Julian L. André
It started as a hushed rumor in the beltway, then became a known fact by those going to join the administration. And now we all know: The Biden administration has brought with it a renewed focus on data privacy and cybersecurity.
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Cybersecurity Law & Strategy
‘Never Trust, Always Verify’: Zero Trust Security
Rebecca L. Warren
Recognizing the ever-increasing cyber threats to businesses, government entities, and individuals, the White House announced that Federal Civilian Executive Branch agencies must migrate toward Zero Trust Cybersecurity Architecture by September 2024. Under Zero Trust, trust is the ultimate vulnerability of any system and, therefore, trust has to be eliminated from a business’ cybersecurity approach.
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Business Crimes Bulletin
Potential Criminal and Civil Penalties of Digital Asset Exchanges
Nola B. Heller and Samson Enzer
This article discusses the potential criminal and civil penalties that companies can face if their employees engage in insider trading in digital assets, and suggests several measures that exchanges can take to reduce their exposure from such risks.
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Business Crimes Bulletin
Feds Jumping Into Corporate Privacy and Cybersecurity Enforcement
David Saunders and Julian L. André
The past 12 months have seen a steady drumbeat of action by federal law enforcement and regulatory agencies of which in-house counsel should take note. Whether new guidance, regulation, investigations, or enforcement activity, the message is clear: The federal government is paying close attention to how companies are handling and protecting their data — especially consumer and sensitive data.
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Cybersecurity Law & Strategy
What You Need to Know About China’s New Privacy Law
Devin Chwastyk and Christian Wolgemuth
The Personal Information Protection Law of the People’s Republic of China (PIPL) went into effect on Nov. 1 and brought with it a suite of new requirements and lingering questions.
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Business Crimes Bulletin
Can A Private Citizen Perform An Official Act?
Harry Sandick and George Fleming
This article discusses the importance of the “official act” requirement established in McDonnell v. United States, and how its logic should lead to a parallel requirement that private citizens should not be chargeable with the commission of official acts as part of a scheme to deprive the public of honest services.
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Business Crimes Bulletin
Being Selective: How Companies May Best Protect Privilege When Cooperating With a Government Investigation
Jonathan B. New, Patrick T. Campbell and Francesca Rogo
This article explores a key consideration for companies under government investigation: whether voluntary disclosure of privileged information in an effort to obtain cooperation credit waives the privilege vis-à-vis third parties in subsequent litigation.
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Cybersecurity Law & Strategy
New State Statutes and Federal Guidelines Create Basket Weave of Cybersecurity Compliance
Kenya Parrish-Dixon
The U.S. doesn’t have a federal cybersecurity law, but that doesn’t mean there is no cybersecurity industry standard. There are regulations, case law, guidelines and state laws that, when combined, create an industry standard applicable to almost all business sectors.
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Commercial Leasing Law & Strategy
New York Cannabis Law’s Lease Mandate Catch-22
Marjorie J. Peerce, Michael P. Robotti and Kamera Boyd
New York’s recently enacted cannabis law, the Marijuana Regulation and Taxation of 2021 (MRTA), created a maze of new legal requirements that affect not only cannabis companies, but also the companies that conduct business with them.
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The Bankruptcy Strategist
Appellate Court Holds FCC Penalty Claim Survives Chapter 11 Corporate Debtor’s Discharge
Michael L. Cook
A Chapter 11 corporate debtor’s monetary penalty obligation owed to the FCC, resulting from “fraud on consumers,” survived the debtor’s reorganization plan discharge, even when the FCC “was not a victim of the fraud,” the U.S. District Court for the Southern District of New York recently held.
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Cybersecurity Law & Strategy
Ransomware Insurance: Understanding the Developing Legal & Regulatory Landscape
J. Andrew Moss, David M. Cummings and Jessica E. Gopiao
In light of the ever-growing ransomware threat, it is important to understand the developing legal and regulatory landscape in order to take the proper steps at the first sign of an attack, including getting the insurance company involved immediately.
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Business Crimes Bulletin
Disclosure of Investigations: Whether and When for Public Companies
Jacqueline C. Wolff and Karin M. Bell
You should be thinking about disclosure long before you even hear from a whistleblower, specifically, in terms of setting up policies and procedures governing how to handle the information flow from the investigative side of the house to the disclosure side.
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Business Crimes Bulletin
Smoke & Mirrors: The New York Cannabis Law’s Illusory Lease Mandate
Marjorie J. Peerce, Michael P. Robotti and Kamera Boyd
New York’s recently enacted cannabis law, the Marijuana Regulation and Taxation of 2021 (MRTA), created a maze of new legal requirements. These provisions affect not only cannabis companies, but also the companies that conduct business with them.
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Business Crimes Bulletin
As Federal Antitrust Prosecutions Rise, Potential Criminal Pitfalls Loom for HR Professionals
Laily Sheybani
The Biden administration seeks to position itself as one that will crack down on employers’ attempts to limit their employees’ mobility and pay through allegedly non-competitive measures.
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New York Real Estate Law Reporter
Appellate Division Upholds West Side Tower
Stewart E. Sterk
In a dispute over West Side development, the First Department handed a victory to developers seeking to build a 39-story building on the block between West 65th and West 66th Street, and Columbus Avenue and Central Park West.
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Commercial Leasing Law & Strategy
Selective Reassessment of Only Commercial Properties Violates the Uniformity Clause
Alan Nochumson and Clementa Amazan
The Commonwealth Court of Pennsylvania recently analyzed whether the City of Philadelphia’s selective reassessment in tax year 2018 of only commercial properties at current market value violated the Uniformity Clause and the Assessment Law’s requirement that the City assess all properties annually at actual market value.
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The Bankruptcy Strategist
Retention of Title Disputes: Don’t Take the Uniform Commercial Code for Granted
Eva D. Gadzheva, Jeremy M. Downs and David E. Morrison
This article reminds us of the conflict-of-laws analysis at the heart of such retention of title disputes, and then discuss the multi-step UCC analysis that is also required.
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The Bankruptcy Strategist
Second Circuit Applies Federal Bankruptcy Law, Not Securities Law, In Madoff SIPA Liquidation
Michael L. Cook
The Second Circuit applied federal bankruptcy law when holding that good faith is an affirmative defense.
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Entertainment Law & Finance
Proposed Changes In UCC Address Virtual Currency Financing
Barbara M. Goodstein
Financial institutions are beginning to accept virtual currencies as collateral for financings. Could this become common for independent film productions and other entertainment industry ventures? This article examines the scope of UCC Article 9 with a focus on virtual currencies, taking into consideration issues of classification and perfection.
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The Intellectual Property Strategist
How NY Courts Find Copyright Preemption of State Law Right of Publicity Claims
Stan Soocher
To survive preemption under §301 of the Copyright Act, courts consider whether a state law claim in a lawsuit has an “extra element” that qualitatively distinguishes it from a federal copyright claim. Courts typically find that state law claims, such as breach of contract, have an extra element. Other state law claims, such as conversion, get varying court determinations as to whether they are preempted.
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Entertainment Law & Finance
Newberg, McCabe, Carson Will Preside Over Copyright Claims Board
Scott Graham
The U.S. Copyright Office has found some big names for its Copyright Claims Board.
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Business Crimes Bulletin
How Will Courts Determine Business Expense Legitimacy Under SEC’s New Disgorgement Authority?
Jorge deNeve, Michael Simeone and David Cohen
Answering that question will force defendants facing SEC enforcement actions to focus on demonstrating the legitimacy of expenses in developing their litigation strategies.
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The Bankruptcy Strategist
Abbreviated Name Makes UCC Financing Statement Defective
Rudolph J. Di Massa Jr. and Keri L. Costello
In In re Bryant, the U.S. Bankruptcy Court for the Middle District of Georgia determined that a lender’s UCC-1 financing statements were “seriously misleading” under the Georgia Commercial Code because the financing statements identified the individual debtor with his middle name abbreviated.
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The Intellectual Property Strategist
USPTO Looking to Beef Up Its Own Trademark Protection
Scott Graham
The agency announced that the Department of Commerce has applied to register the USPTO’s marks in a bid to crack down on scammers who are impersonating the agency.
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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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