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The Intellectual Property Strategist
The First Amendment and the Lanham Act At the Supreme Court
Conor Tucker
In March, the Supreme Court heard a blockbuster trademark case with significant implications for trademark law. After argument, reversal seems likely as questioning from the justices suggests that a long-standing precedent is unlikely to survive unscathed. But the Court also indicated concern over the broader implications of this case in the arts, entertainment, and publishing. Here’s what you need to know about Jack Daniel’s v. VIP Products.
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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
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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The Bankruptcy Strategist
Innocent Business Partner’s Fraud Liability Survives Bankruptcy
Michael L. Cook
The decision by the Supreme Court has practical significance for corporate officers and others in an agency or partnership relationship, and also may have serious consequences for corporate Chapter 11 debtors whenever a “domestic governmental unit” is a creditor.
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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
Circuit Split Reflects Disagreement About the Relationship Between Scheme Liability and SEC Rule 10b-5(b)
Stefan Atkinson and Yi Yuan
Historically, federal courts generally agreed that scheme liability under SEC Rule 10b-5(a) and (c) requires something more than a misstatement or omission — with misstatements and omissions typically being litigated under Rule 10b-5(b) instead. However, the SCOTUS in Lorenzo v. SEC held that an individual who disseminates a misstatement, without other fraudulent conduct, is potentially liable under the scheme liability provisions of Rule 10b-5. Subsequently, a circuit split has emerged over the scope of Lorenzo’s holding.
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Entertainment Law & Finance
Report on Oral Arguments At Supreme Court In 'Warhol' Case
Scott Graham
During the recent oral arguments before it, the U.S. Supreme Court sounded open to extending more fair use protection to an Andy Warhol painting of rock icon Prince than the U.S. Court of Appeals for the Second Circuit did.
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The Intellectual Property Strategist
Supreme Court Set to Hear Transformativeness Fair Use 'Warhol' Case
Eric Alan Stone and Catherine Nyarady
In the October 2022 Term, the Supreme Court is set to decide whether courts assessing transformativeness under the first fair-use factor of the Copyright Act may consider “the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material.” The case may profoundly affect the fair use analysis, and in turn, the scope of copyright protection for many works.
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Business Crimes Bulletin
SCOTUS to Hear Cases on Limits of Mail and Wire Fraud Statutes
Robert J. Anello and Richard F. Albert
Federal courts long have struggled to define the limits of the mail and wire fraud statutes, laws famously characterized as the prosecutor’s true love for their vast breadth and catch-all adaptability. After sidestepping opportunities in the past, the U.S. Supreme Court is now wading into two different and controversial manifestations of that flexibility.
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Business Crimes Bulletin
Efforts to Provide Out-of-State Abortion Travel Benefits Face Rapidly Shifting Legal Landscape
Jessica Mach
Employment attorneys say the breadth of new state laws — and the pace at which they are going into effect — means in-house counsel at companies trying to create workarounds for employees in states with restrictive abortion laws by providing benefits that would allow them to travel out-of-state to access abortion services will need to be on high alert, since keeping up on top of the laws will be key to limiting their exposure to litigation — or even criminal penalties.
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The Intellectual Property Strategist
UPDATE: Did the Supreme Court's 'Arthrex’ Decision Open Pandora’s Box?
Robert E. Browne, Jr. and Ryan C. Deck
In June 2021, the Supreme Court ruled in U.S. v. Arthrex that the statutory scheme appointing Patent Trial and Appeal Board administrative patent judges to adjudicate IPRs violates the appointments clause of the U.S. Constitution. Specifically, the Court concluded that because APJ decisions in IPR proceedings are not reviewable by a presidentially appointed and Senate-confirmed officer, such determinations are not compatible with the powers of inferior officers. The PTO later decided that it would not accept requests for director review of institution decisions. This policy is now also being questioned in Arthrex’s wake.
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New York Real Estate Law Reporter
Supreme Court Again Addresses Municipal Sign Regulations
Steven M. Silverberg
In 2015, the U.S. Supreme Court applied strict scrutiny to a sign regulation as it related to directional signs placed by a local congregation that held services at different locations each week. In April 2022, the Court took another look at the issue of strict scrutiny relating to “off-premises” signs in City of Austin, Texas v. Reagan National Advertising.
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Commercial Leasing Law & Strategy
Supreme Court Addresses Municipal Sign Regulations, Again
Steven M. Silverberg
In 2015, the U.S. Supreme Court applied strict scrutiny to a sign regulation as it related to directional signs placed by a local congregation that held services at different locations each week. The Court took another look at the issue of strict scrutiny relating to “off-premises” signs in the case of City of Austin, Texas v. Reagan National Advertising , in which the majority concluded that strict scrutiny should not apply to determining whether the off-premises sign regulations at issue violated the First Amendment.
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Entertainment Law & Finance
Supreme Court’s Breyer Ruling on Mistakes In Copyright Registrations
Scott Graham
The Ninth Circuit had ruled in 2020 that §411(b)(1)(A) of the federal Copyright Act excuses inadvertent mistakes of fact on copyright registrations but not mistakes of law. The Supreme Court has now ruled 6-3 that the provision covers both mistakes of facts and law.
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The Intellectual Property Strategist
Issues Addressed In Supreme Court ‘Unicolors’ Argument
Robert W. Clarida and Thomas Kjellberg
Some of the major issues the court addressed in the Unicolors oral argument, and some questions that are likely to remain open no matter the outcome.
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The Bankruptcy Strategist
Will Supreme Court Settle Sale of Tax Liens Issue?
Kenneth L. Baum
There's a split among circuit courts on whether tax foreclosure sales may be avoidable as preferential and fraudulent transfers by property owners who subsequently seek relief under the Bankruptcy Code. If the Supreme Court eventually weighs in to resolve this circuit split, property owners, municipalities, and potential bidders for tax liens across the country will receive greater clarity on this critical issue.
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The Bankruptcy Strategist
SCOTUS Passes on Bankruptcy Law Cases, Leaving Circuit Court Splits
Corinne Ball
‘Purdue Pharma’ Looms
Although four cases presenting important bankruptcy issues were teed up for the Supreme Court’s consideration this term, the Court denied certiorari for each. Each of these petitions involve splits among the circuit courts of appeals, influencing choice of venue and the extent to which bankruptcy decisions are subject to meaningful appeal.
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Entertainment Law & Finance
U.S. Supreme Court Considers Copyright Registration of Multiple Works
Rex A. Donnelly
The 'Unicolors' case highlights the value of copyright registration, not only for creators who rely on the exclusivity of their content for making a living, but also for anyone with copyright eligible works in their IP portfolio.
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Business Crimes Bulletin
Van Buren Continues Supreme Court’s Pattern of Statutory Interpretation to Avoid Criminalizing Trivial Acts
Robert J. Anello and Richard F. Albert
The Van Buren decision fits into a pattern of the court’s modern criminal law jurisprudence that appears motivated by concerns about the ever-expanding reach and severity of federal criminal law.
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The Intellectual Property Strategist
U.S. Supreme Court Could Make Copyright Officer Significant Player In Copyright Infringement Litigation
Robert W. Clarida and Robert J. Bernstein
The U.S. Supreme Court granted certiorari in Unicolors v. H&M Hennes & Mauritz to address the following question: “Did the Ninth Circuit err in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. §411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration?”
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The Bankruptcy Strategist
Supreme Court’s Denial to Hear Student Debt Discharge Case Leaves Ambiguity
Joseph Pack and Jessey Krehl
With federal student loan forbearance set to expire at the end of September, many hoped the high court would provide, if not clarity, at least uniformity for the millions of Americans who currently are on the hook for student loans.
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The Intellectual Property Strategist
U.S. Supreme Court Narrows Assignor Estoppel Doctrine In Continuation Patent Case
John Bowler and Kristie Butler
Nearly a century after endorsing the doctrine of assignor estoppel, the Court concluded that it applies “when, but only when, the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent.”
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The Intellectual Property Strategist
Supreme Court Looking to Resolve Federal Circuit Split In Patent Act §101 Case
Eric Alan Stone and Catherine Nyarady
The Supreme Court is considering a petition in a §101 case, in which the Federal Circuit split six-to-six in denying rehearing en banc, and in which the Supreme Court recently called for the views of the Solicitor General.
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Cybersecurity Law & Strategy
SCOTUS 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,” and the statute does not — as the government had argued — cover behavior where a person accesses information which he is authorized to access but does so for improper purposes.
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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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The Intellectual Property Strategist
U.S. Supreme Court Largely Upholds IPR Proceedings In 'Arthrex'
Robert E. Browne, Jr. and Ryan C. Deck
In a decision authored by Chief Justice Roberts, the Supreme Court ruled that the statutory scheme appointing PTAB administrative patent judges (APJs) to adjudicate IPRs violates the appointments clause of the U.S. Constitution.
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Business Crimes Bulletin
Fifth Amendment Protection of Cellphone Passwords Remains Murky As Supreme Court Declines to Weigh In
Robert J. Anello and Richard F. Albert
When law enforcement seeks to compel a subject to provide a passcode to allow them to rummage through a cellphone, courts have not spoken with a unified voice. Some, including New Jersey’s highest court, have arrived at the dubious conclusion that requiring an individual to communicate cellphone passcodes to the government does not warrant Fifth Amendment protection. Commentators had hoped that the U.S. Supreme Court would reject that expansive view, however, the Supreme Court declined to wade in, seemingly guaranteeing that continued uncertainty on this critical issue will continue to bedevil criminal practitioners.
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Entertainment Law & Finance
Supreme Court on APIs and Fair Use
Scott Graham
Google didn’t get an answer from the U.S. Supreme Court on whether the Java Application Programming Interfaces (APIs) it copied from Sun Microsystems were copyrightable. But it got just about everything else it could have hoped for in a decision that ended its 11-year copyright clash with Sun's successor, Oracle.
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The Intellectual Property Strategist
Supreme Court Leaves As Many Questions As It Answers In 'Google v. Oracle'
Shaleen Patel
The Court cleared Google of copyright infringement in terminating a 16-year long dispute as to whether Google’s Android mobile platform had infringed Oracle’s Java programming language’s copyright. However, the Court did not answer the question of whether specific components of computer software qualifies for copyright protection at all.
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The Bankruptcy Strategist
U.S. Supreme Court Allows Repossessing Secured Lender to Hold Collateral Pending Bankruptcy Stay
Michael L. Cook
A secured lender’s “mere retention of property [after a pre-bankruptcy–repossession] does not violate” the automatic stay provision of the Bankruptcy Code, held a unanimous U.S. Supreme Court in City of Chicago v. Fulton.
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Business Crimes Bulletin
Not-So-Incidental Byproducts of 'Kelly'
Gary Stein
Early returns are in, and they indicate that the Supreme Court’s decision in the so-called “Bridgegate” case will be an effective tool for pruning the wild overgrowth that has built up around the federal fraud statutes.
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Business Crimes Bulletin
Implications of a More Conservative Supreme Court for White-Collar Practitioners
Robert J. Anello and Richard F. Albert
A review of recent decisions of the Roberts court and of decisions in which Barrett participated during her limited tenure on the U.S. Court of Appeals for the Seventh Circuit provides some hints regarding how the Supreme Court’s future decisions may affect the law relevant to white-collar criminal practice.
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The Intellectual Property Strategist
Testing for Genericness After USPTO v. Booking.com
Alex Simonson
In the recent U.S. Supreme Court case of USPTO v. Booking.com, the U.S. Supreme Court held that the term Booking.com is not necessarily generic merely because it is composed of two components, each itself generic. In so deciding, Justice Ginsburg averred that there is an appropriate metric to determine if such a term is indeed generic, that of consumer perception.
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The Intellectual Property Strategist
Alice and Incongruity In PTAB Appeals
James W. Soong
This article discusses the significant contrast between consideration of issues related to the U.S. Supreme Court’s decision in Alice Corp. v. CLS Int’l in prosecution and their resolution by the PTAB.
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The Intellectual Property Strategist
States Win Some and Lose Some on Copyright Front at Supreme Court This Term
Jason Bloom
The Supreme Court decided two copyright cases this term, both involving states. This article discusses the cases and their likely impact on copyright law going forward.
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Business Crimes Bulletin
Supreme Court Reins in Broad Reading of Fraud Statutes with ‘Bridgegate’ Case Ruling
Robert J. Anello and Richard F. Albert
When federal prosecutors focus their attention on high profile misconduct that is not an obvious violation of federal criminal law, they often cannot resist the attractions of broadly worded “catch-all” fraud statutes. From time to time, however, the U.S. Supreme Court has pushed back on efforts to further expand the boundaries of these statutes, leading to reversals of some well-publicized criminal convictions.
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The Intellectual Property Strategist
Eliminating Willfulness as a Prerequisite to Recovering an Infringer’s Damages in Dilution Cases
Sarah Benowich
Romag Fasteners, Inc. v. Fossil, Inc.
The Supreme Court, settling a circuit split, held that, although highly important, willfulness is not a prerequisite for a trademark infringement plaintiff to obtain a profits award.
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The Intellectual Property Strategist
U.S. Supreme Court Rejects ‘Defense Preclusion’ in Trademark Suit
Anthony J. Dreyer
On May 14, 2020, the U.S. Supreme Court resolved a circuit split, finding that any preclusion of litigation defenses must comply with traditional res judicata principles, and ruling that Lucky Brand was not precluded from asserting its defenses in its long-standing trademark litigation against Marcel Fashions Group
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The Intellectual Property Strategist
Supreme Court Rules States Cannot Be Involuntarily Liable for Copyright Infringement
Shaleen J. Patel
The U.S. Supreme Court has ruled that individual states are free to commit copyright infringement. The Court held that Congress attempted to abrogate states’ sovereign immunity in an unconstitutional manner when enacting the Copyright Remedy Clarification Act of 1990 (CRCA).
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Accounting And Financial Planning For Law Firms
Supreme Court Defers to State Law on Ownership of Tax Refund
Michael L. Cook
Federal courts should “turn to state law to resolve” a “fight over a tax refund,” held a unanimous U.S. Supreme Court in Rodriquez v. FDIC (In re United W Bancorp., Inc.).
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The Bankruptcy Strategist
Supreme Court Defers to State Law on Ownership of Tax Refund
Michael L. Cook
High Court Rejects Application of Bob Roberts Rule
Federal courts should “turn to state law to resolve” a “fight over a tax refund,” held a unanimous U.S. Supreme Court in Rodriquez v. FDIC (In re United W Bancorp., Inc.)
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The Bankruptcy Strategist
Move Quickly: Supreme Court Holds that Bankruptcy Court’s Denial of Motion for Relief from the Automatic Stay Is a Final Appealable Order
Louis F. Solimine, James J. Henderson and Andrew L. Turscak, Jr.
In a recent, unanimous opinion authored by Justice Ginsburg, the U.S. Supreme Court affirmed lower court decisions holding that a bankruptcy court order denying a motion for relief from the automatic stay constitutes a final order that must be appealed within the time provided under Federal Rule of Bankruptcy Procedure 8002.
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The Intellectual Property Strategist
U.S. Supreme Court Reaffirms the American Rule In De Novo Challenges to the PTO
Jonathan Moskin
In 2013, the PTO adopted a new policy under which any party commencing a de novo proceeding challenging a PTO decision would be responsible to pay a pro rata share of the salaries of the government attorneys working on the matter. On Dec. 11, 2019, the U.S. Supreme Court rejected the PTO’s new interpretation of the Patent Act and held that the American Rule, a centuries-old principle under which each party bears its own attorneys’ fees, does apply to this statute.
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Entertainment Law & Finance
How Judges Are Interpreting Supreme Court’s Copyright ‘Registration’ Ruling
Stan Soocher
In Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, the U.S. Supreme Court held that, under 17 U.S.C. §411(a), “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright” — that is, acts on a registration application, rather than when an applicant delivers the registration materials to the Copyright Office.
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Business Crimes Bulletin
Challenge to SEC’s Disgorgement Authority Reaches Supreme Court
Jodi Misher Peikin and Jacob Mermelstein
The U.S. Supreme Court granted certiorari in Liu v. Securities and Exchange Commission to address a question that, until fairly recently, seemed clear: whether the SEC has authority to obtain disgorgement in civil actions to enforce the federal securities laws.
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Business Crimes Bulletin
Supreme Court Asked to Assess Per Se Rule Tension in Criminal Antitrust
Robert J. Anello and Richard F. Albert
In recent years, practitioners have observed a tension between criminal enforcement of the broadly written terms of the Sherman Antitrust Act of 1890 and the modern Supreme Court’s notions of statutory interpretation and due process in the criminal law context. A certiorari petition filed in late August in Sanchez et al. v. United States, asks the Supreme Court to address this tension, as embodied in the judge-made per se rule.
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Business Crimes Bulletin
Supreme Court’s October Term 2018 Contains Hints of Things to Come
Harry Sandick and Tara Norris
Part Two of a Two-Part Article
In Part One of this article last month, we discussed several of the key business crimes cases from the recently concluded October Term 2018. We resume this discussion in Part Two of our article and offer some concluding thoughts about where the Court may go next in the years to come.
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The Intellectual Property Strategist
Supreme Court, Finally, Takes Up Google v. Oracle
Scott Graham
The U.S. Supreme Court has jumped into a titanic copyright battle between Oracle Corp. and Google LLC with both barrels. The court’s involvement is sure to reignite a 50-year-old debate over how much, if any, software should be subject to copyright, and the contours of the fair use defense in the digital age.
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The Intellectual Property Strategist
IP News
Anthony H. Cataldo
U.S. Supreme Court to Hear Booking.com Trademark Case
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Business Crimes Bulletin
Supreme Court’s October Term 2018 Contains Hints of Things to Come
Harry Sandick and Tara Norris
Part One of a Two-Part Article
In its recently ended October Term 2018, the U.S. Supreme Court decided several notable criminal law decisions that will have a meaningful impact on white-collar practitioners’ work and, importantly, offer clues regarding the movement of the criminal law in subsequent terms. In this two-part article, we review several of the key decisions and consider their implications, both for practitioners in this area and for Court-watchers interested in future Court decisions.
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