Regulation

Cybersecurity Law & Strategy

New U.S.-China Investment Dynamic Focuses On AI and Sensitive Technologies

David A. Holley

An Executive Order released by the Biden Administration on Aug. 9 places increased importance on due diligence when investing in specific foreign countries. The Executive Order will regulate outbound investments in China with a focus on key technologies critical to safeguarding U.S. national security, including artificial intelligence.

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Cybersecurity Law & Strategy

New York’s Latest Cybersecurity Commitment

Erik B. Weinick

On Aug. 9, 2023, Gov. Kathy Hochul introduced New York’s inaugural comprehensive cybersecurity strategy. In sum, the plan aims to update government networks, bolster county-level digital defenses, and regulate critical infrastructure.

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Cybersecurity Law & Strategy

The EU-U.S. Data Privacy Framework: Did Transferring Personal Data from the EU to the U.S. Just Get Easier?

Wim Nauwelaerts

Businesses and organizations that (regularly) transfer personal data from the EU to the U.S. should carefully assess, on a case-by-case basis, whether it makes sense to rely on the new EU-U.S. Data Privacy Framework or to use one of the other data transfer tools that are available under the GDPR.

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Cybersecurity Law & Strategy

10 Steps Legal Departments Should Be Taking to Prepare for the SEC’s Newly Adopted Cybersecurity Risk Governance Rule for Public Companies

Megan Silverman

By readying your company’s cybersecurity program now to comply with the SEC’s cyber rules, you will also arm your company with a better defense against cyberthreat actors, reduce the reputational harm that comes along with a cybersecurity incident and increase investor confidence in the company’s cybersecurity program.

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Business Crimes Bulletin

DOJ Calls On Companies to Incorporate Data Analytics In Anti-Corruption Compliance Programs

Fotis Konstantinidis, Michael Pace and Jason Wright

This article explains the DOJ’s recent emphasis on robust data analytics in anti-corruption compliance programs, outlines how data analytics can and should be used in these programs, and suggests an approach to help legal counsel and companies determine if corporate programs will pass muster with the DOJ.

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Business Crimes Bulletin

White-Collar Practitioners Weigh In On Defending Trump Indictments

Brad Kutner

They say every defendant deserves an attorney, and that surely includes a former president, but how does a lawyer defend someone facing multiple indictments in multiple districts all while they’re running a campaign to return to the White House? Several white-collar defense attorneys who spoke with Business Crimes Bulletin’s ALM sibling The National Law Journal have some ideas.

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Business Crimes Bulletin

SCOTUS: Courts Should Avoid Assigning ‘Breathtaking’ Scope to White-Collar Crime Statutes

Robert J. Anello and Richard F. Albert

The Supreme Court’s Dubin decision is another worthy entrant in the long running series of SCOTUS decisions applying judicial restraints where prosecutors seem unable to restrain themselves.

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Business Crimes Bulletin

FTC and DOJ Proposed Merger Guidelines Eye Effect On Competition

Maydeen Merino

The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have proposed merger guidelines that reflect the Biden administration’s aggressive enforcement approach to corporate acquisitions that considers not only their effect on competition but on the labor market, antitrust attorneys said.

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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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New York Real Estate Law Reporter

Guaranty Law Invalidated

Deborah E. Riegel

Consistent with the Second Circuit’s opinion, the District Court in March 2023 found that the Guaranty Law, a pandemic law that was implemented to protect struggling commercial tenants and small businesses, lacked the requisite reasonability to overcome a Contract Clause challenge,

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Entertainment Law & Finance

New FTC Guidelines for Social Media Influencers

Brad Kutner

Internet celebrities with big social-media followings are often approached for advertising and marketing deals, and the money flowing from these third-party arrangements can be in the millions. But the Federal Trade Commission (FTC) moved to update the guidelines for those who profit from such arrangements, and lawyers are saying the new rules involve big but unsurprising changes.

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Cybersecurity Law & Strategy

National Cybersecurity Strategy: Potential Impacts to Consider

Daron Hartvigsen

What are the impacts to civil society and government if the plan works? We should consider that “collecting intelligence, imposing economic costs, enforcing the law, and, conducting disruptive actions” will work by some measure, and if so, the impacts to the cybersecurity ecosystem could be profound.

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Commercial Leasing Law & Strategy

New York City’s Guaranty Law Invalidated

Deborah E. Riegel

New York's Guaranty Law was challenged as unconstitutionally restricting a plaintiff's contractual rights The District Court held the law to be constitutional because it advanced a significant and legitimate public purpose through reasonable and appropriate means.

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Business Crimes Bulletin

Potential Legal Pitfalls for Public Companies Due to SEC’s New Cybersecurity Rules

Tommy Smith

Some 16 months after first proposing rules for public companies and investment advisors, the SEC adopted new rules, chief among them that public companies disclose material cybersecurity breaches to investors within four days.

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Business Crimes Bulletin

Crypto Winter Leads to Explosion of Regulatory Activity

Mark Bini, Kaela Dahan and Victoria Jaus

In the past year, following the Crypto Winter, there has been an explosion of activity by United States regulators and enforcers. Crypto companies, for their part, have complained that it is not clear what digital assets, if any, are securities, and that they have not been given clear regulatory rules of the road.

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Accounting And Financial Planning For Law Firms

The Future of IRS Summonses After Supreme Court ‘Poselli’ Ruling

Jeremy H. Temkin

In Polselli v. Internal Revenue Service, the U.S. Supreme Court unanimously refused to limit the IRS’s ability to issue summonses without notice to situations in which it seeks records of accounts in which a delinquent taxpayer has an interest. This article discusses the court’s decision, Justice Jackson’s concurring opinion, and the potential for future challenges to the IRS’s issuance of summonses without notice.

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Business Crimes Bulletin

Recent DOJ Losses In Antitrust Cases Don’t Tell the Whole Story

Jennifer Fischell and Thomas Schubert

Many of the Biden Administration’s antitrust enforcement actions have involved attempts to regulate anticompetitive conduct in labor markets by means…

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Business Crimes Bulletin

Biden Administration ESG Initiative Draws Scorn from Republican Lawmakers

Maydeen Merino

The Biden administration’s efforts to establish environmental, social, and corporate governance requirements on corporations has drawn scorn from Republican lawmakers even as companies learn to navigate the ESG initiative with an unclear regulatory framework.

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Business Crimes Bulletin

Regulators Put Pressure On Fintech Platforms to Improve Customer Disclosures

Chris O'Malley

Regulators cranking up scrutiny of digital-payment platforms after fund-access and customer service problems in recent years are now broadening their gaze into what happens if they collapse. That’s placing additional pressure on these fintech platforms to improve customer disclosures and possibly even find new ways to backstop against potential insolvency.

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Cybersecurity Law & Strategy

Assess Your Information Governance Practices In Light of DOJ and SEC Crackdown on Use of Personal Devices and Messaging Apps

Jonathan B. New, Patrick T. Campbell, James A. Sherer and Luke E. Record

This article summarizes the DOJ’s recent guidance and the SEC’s enforcement trends and priorities in this area, and it provides information governance best practices companies can implement now to ensure they are meeting regulators’ expectations and recordkeeping rules.

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Entertainment Law & Finance

Keeping Tabs On Antitrust Actions In Entertainment Industry Sectors

Stan Soocher

The growth in size of companies dominating sectors of the entertainment industry has been subject to antitrust challenges with mixed results. What are some notable recent developments in this area?

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Business Crimes Bulletin

The Message Is Clear: Assess Your Information Governance Practices In Light of DOJ and SEC Crackdown on Use of Personal Devices and Messaging Apps

Jonathan B. New, Patrick T. Campbell, James A. Sherer and Luke E. Record

Regulators increasingly are scrutinizing employee use of personal devices and third-party messaging apps. This article summarizes the DOJ’s recent guidance and the SEC’s enforcement trends and priorities in this area, and it provides information governance best practices companies can implement now to ensure they are meeting regulators’ expectations and recordkeeping rules.

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The Intellectual Property Strategist

Understanding the Supreme Court Cases that Didn’t Destroy the Internet: 'Gonzalez v. Google' and 'Twitter v. Taamneh'

Erick Franklund

The Internet is still standing, but the Supreme Court’s reasoning in the Gonzalez opinion remains perplexing. Gonzalez and Taamneh are a story about how the Supreme Court “saved” the Internet from itself, and the Court needed both cases to do so.

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New York Real Estate Law Reporter

Do We Need A Title Theft Statute?

Stewart E. Sterk

Recent years have seen numerous reports of what has colloquially been called “property theft” or “deed theft” in New York. The state Attorney General has championed a statute, now introduced in the state legislature, making “Property Theft” a crime. Would the statute be helpful?

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The Intellectual Property Strategist

Should Foreign Companies Face Lanham Act Sanctions for Trademark Infringement Occurring Abroad?

Lauren Gregory Leipold

The U.S. Supreme Court is considering whether the federal Lanham Act should be interpreted so broadly that domestic companies can leverage it to bar trademark infringement by — and seek significant damage awards against — foreign entities operating almost entirely overseas.

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Business Crimes Bulletin

Despite Rhetoric On Individual Accountability, Recent FCPA Enforcement Has Targeted Entities

Robert J. Anello and Richard F. Albert

With ample bravado, in recent years the FCPA unit of the DOJ and the SEC have proclaimed that holding individuals accountable for foreign bribery schemes is of “critical importance,” with the FCPA saying “it is unambiguously this department’s first priority” to prosecute individuals in corporate criminal matters. Reviewing the enforcement record, however, one sees that the volume of FCPA enforcement activity with respect to individuals has steadily declined in the last three years.

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Commercial Leasing Law & Strategy

The Fed Worries About Bank CRE Loans for a Good Reason

Erik Sherman

The Federal Reserve and other regulators have been focused of late on bank problems, and well they should. But concern is now spreading to commercial real estate and the possibility that interplays between CRE borrowers and lenders could, under current conditions, create a positive feedback loop that could increasingly hurt both.

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Marketing The Law Firm

AI Regulation In the U.S.: What’s Coming, and What You Need to Do, Part 2

Kim Peretti, Dan Felz and Alysa Austin

Part Two of a Two-Part Article

In Part One, last month, 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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Business Crimes Bulletin

SEC Selective Enforcement Throws Doubt On Whether Securities Rules Apply to Crypto

Cassandre Coyer

Digital assets have created a jurisdictional tug of war between the SEC and the CFTC over whether cryptocurrencies should be regulated as commodities or securities. Also tugging on that rope sit those who say cryptocurrencies are neither, and need new bespoke rules.

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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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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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