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Entertainment Law & Finance
SAG-AFTRA’s Influencer Agreement and Waiver
Francelina M. Perdomo
For years, the legal framework governing the collaboration between influencers, advertisers and brands has been comparable to the Wild West, presenting multiple legal challenges to navigate. Influencer marketing exponentially grew when the COVID-19 pandemic drew performers to social media as the principal outlet to connect with their audience. As a result, SAG-AFTRA decided to venture into the fast-growing influencer market.
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Cybersecurity Law & Strategy
California Consumer Privacy Law Cases Climbing, and Not Just In California
Jessica Mach
Plaintiffs filed 145 lawsuits last year to enforce provisions under the CCPA, a 60% increase from 2020. Lawsuits alleging violations of the California law were also filed across the country, pending at one point in 33 courts across 20 states.
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Business Crimes Bulletin
Repairing the Foreign Agents Registration Act
Harry Sandick and George Carotenuto
In recent years, mostly due to the well-publicized prosecution of Trump campaign manager Paul Manafort, FARA has become more of a focus for federal prosecutors. As a result, white-collar attorneys have been consulted more often about whether particular conduct requires registration under the Act.
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Accounting And Financial Planning For Law Firms
The Biden Administration’s 2023 Budget: Déjà Vu All Over Again
Lawrence L. Bell
The Treasury’s Greenbook commenting and explaining budget recommendations for FY 2023 raises warnings of tax increases. But what are the odds Congress passes anything before the midterm elections this November? This article presents a summary of the proposed tax increases and the likelihood of these provisions being enacted into law.
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Business Crimes Bulletin
Strategies for Advising Foreign Clients As DOJ Pursues Extraterritorial Criminal Cases
Emil Bove
This article addresses some issues to consider, including foreign arrest procedures, contesting extradition, and engaging with prosecutors before a defendant arrives in the United States.
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Commercial Leasing Law & Strategy
Fifth Circuit Ruling Gives Commercial Lessees Likely Protection In Bankruptcy Court Free and Clear Asset Sales
Michael L. Cook
The Fifth Circuit signaled that it would not approve in later cases a bankruptcy court asset sale of real property that summarily cuts off the rights of the debtor’s lessees.
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The Bankruptcy Strategist
Fifth Circuit Resolves ‘Clash’ Between FERC and Bankruptcy Courts
Douglas S. Mintz and Michael L. Cook
A Chapter 11 debtor’s “rejection [(under Code §365(a)] of a filed-rate [natural gas] contract … relieve[d] it of the obligation to continue performance absent the approval of FERC [(the Federal Energy Regulatory Commission],” held the U.S. Court of Appeals for the Fifth Circuit.
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Business Crimes Bulletin
The FTC Gets Into the College Athlete NIL Game
Nicole Demas, L. Andrew Tseng and Sean P. McConnell
As national champions are crowned in men’s and women’s basketball, hundreds of thousands of college athletes are entering the influencer marketplace for the first time and now find themselves attractive candidates in the fast growing influencer marketing arena. With influencer marketing potentially providing a 5x return on investment, many brands are eager to get into the industry, but it doesn’t come without risks as the FTC Commissioner is taking a closer look at the use of influencers for marketing.
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Business Crimes Bulletin
First Dark Web Insider Trading Case Shows Government Active In Policing Tech
Ian McGinley
In a first of its kind prosecution, the Southern District of New York brought an insider trading case against defendant for selling inside information on the Dark Web. The SEC also brought a civil regulatory action against the defendant for the same conduct. In a rare move, however, SDNY and SEC charged this same conduct under different insider trading statutes. This difference underscores the legal complexities involved when the origin of inside information in the digital world is unknown.
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Commercial Leasing Law & Strategy
Landlords Turn the Tech to Keep Up With Sustainability Requirements
Paul Bergeron
Government policies are pushing landlords to meet new sustainability requirements, heaping pressure on investors to back up their efforts to go green. In response, more owners are relying on AI and other technologies to help them meet the challenge and avoid steep financial penalties.
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Business Crimes Bulletin
Second Circuit ‘Connolly’ Ruling Shows Limits of Mail and Wire Fraud Statutes
Elkan Abramowitz and Jonathan Sack
The Connolly decision draws attention to the limits of the mail/wire fraud statutes — laws that are quite expansive but can also be stretched too far when applied to conduct in financial markets, especially markets tied to opaque rules and practices.
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Cybersecurity Law & Strategy
SEC Proposed Rules Include Disclosure of Cybersecurity Risk Assessment Strategy
Greg Andrews
Cybersecurity compliance, already an anxiety-inducing topic for many in-house counsel, is about to get even trickier. The SEC rolled out a host of proposed new cybersecurity rules for public companies.
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The Bankruptcy Strategist
Wrestling With the Meaning of ‘Ordinary’ Under the Bankruptcy Code
Andrew C. Kassner and Joseph N. Argentina Jr.
The Bankruptcy Code protects regular, ordinary commercial transactions between distressed companies and vendors willing to continue the relationship. But what is ordinary?
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Business Crimes Bulletin
Inside Cryptocurrency Pump-and-Dump Schemes
Jonathan Bick
Cryptocurrency pump-and-dump schemes (CPDs) are becoming increasingly prevalent. As in the case of traditional “pump and dump” schemes, CPDs lead to short-term trading perturbations — exaggerated increases and/or decreases in prices, volume, or volatility.
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Commercial Leasing Law & Strategy
How the SEC’s ESG Disclosure Rules Might Effect Commercial Real Estate
Erik Sherman
After years of discussions and hints, the Securities and Exchange Commission (SEC) finally released its proposed environmental disclosure rule for public company reporting. Getting the information and making the determinations will be a challenge for any sized company that comes under the SEC’s purview. But there are significant questions about who is responsible for gathering and reporting information from commercial real estate facilities.
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Cybersecurity Law & Strategy
Cyber-Insecurity: Will the Looming Regulatory Crackdown on Cybersecurity Practices Help Protect Financial Institutions from Attack?
Lori Van Auken and Adam Jamieson
A slew of new regulations targeting the cybersecurity practices of financial institutions will come into effect during 2022. But will they have any real bearing on protecting financial firms from attack?
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Cybersecurity Law & Strategy
The Rise of False Claims Act Cybersecurity Litigation
Annie Railton, James Gatta, Jud Welle and Emily Notini
While the DOJ Civil Cyber-Fraud Initiative is still in its early stages and cybersecurity regulations are evolving, whistleblower plaintiffs have already begun leveraging the FCA to pursue alleged noncompliance with government cybersecurity requirements.
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Entertainment Law & Finance
Artist’s Talent Agencies Act Claim In CA Doesn’t Bar Personal Managers’ NY Lawsuit
Stan Soocher
What happens if a personal manager files a lawsuit in a court outside of California against a talent client who has raised a California Talent Agencies Act claim in California?
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The Intellectual Property Strategist
Litigating Redesigns At the ITC
Frank Liu, Dustin Ferzacca and Gwen Tawresey
An overview of redesigns at the ITC, a discussion of the ITC’s recent determination in Certain Audio Players and Controllers, and identifies some considerations to keep in mind when litigating redesigns at the ITC.
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Business Crimes Bulletin
The DOJ Goes Phishing: The Rise of False Claims Act Cybersecurity Litigation
Annie Railton, James Gatta, Jud Welle and Emily Notini
While the DOJ Civil Cyber-Fraud Initiative is still in its early stages and cybersecurity regulations are evolving, whistleblower plaintiffs have already begun leveraging the FCA to pursue alleged noncompliance with government cybersecurity requirements.
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Business Crimes Bulletin
Examining the SEC’s Rulemaking Process
Jonathan S. Sack and Penina Moisa
SEC Chair Gary Gensler's agenda raises important questions of both substance and process, including the technical, but very important, matter of SEC rulemaking: What is required for the Commission to create new rules, or change well-established rules? The answers to these questions, in turn, may determine what can realistically be accomplished given timing and political constraints.
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Business Crimes Bulletin
DOJ 2021 Fraud Section Report Shows COVID Effect Dissipating
Kevin Muhlendorf
Although billed as an annual look-back, the U.S. Department of Justice Criminal Division’s Fraud Section annual report provides important insight for individuals, entities, and their lawyers as to where the Fraud Section is setting its sights for 2022 and beyond.
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The Intellectual Property Strategist
Clarity on Patent Eligibility Law Could Be Coming In 2022
Scott Graham
The murkiness around patent eligibility is one reason innovators have been turning more toward trade secret law to protect their inventions.
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Business Crimes Bulletin
Mail and Wire Fraud Post 'Kelly v. United States'
Elkan Abramowitz and Jonathan S. Sack
This article discusses the holding by the U.S. Supreme Court Kelly v. U.S. and explains its impact on subsequent cases and concludes with a discussion of the “right to control” theory of mail and wire fraud, which has been challenged in light of the Kelly decision.
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Business Crimes Bulletin
Anti-Bullying and Corporate Responsibility
Michael W. Peregrine
As boards implement anti-bullying policies to protect against a toxic management-to-employee workplace environment, they should also consider extending similar protection to the vital interactions between the general counsel and the CEO.
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Business Crimes Bulletin
Insurance Fraud Remains Key Area of Government Focus
Michael A. Sirignano
During the past year, there were important government reports examining the defrauding of health insurance programs, new trends and government initiatives relating to fraud, and insurance fraud cases involving significant numbers of defendants. When added together, it is not difficult to understand why insurance fraud remains such a key area of focus for government officials, carriers and attorneys.
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Business Crimes Bulletin
Fourth Circuit: Shareholders Face High Bar In Demonstrating Scienter
Michael W. Mitchell and Edward Roche
A recent Fourth Circuit decision held that shareholders must meet a high bar in demonstrating scienter to avoid early dismissal of the case. The decision also shows the fact-intensive approach courts use to distinguish fraudulent statements from those that, even if mistaken, were made innocently.
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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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