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Business Crimes Bulletin
Strategy vs. Tactics: Two Sides of a Difficult Coin
Emil Sayegh
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks now target the critical infrastructure of the most powerful country on the planet.
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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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Business Crimes Bulletin
Mutual Legal Assistance Treaties Are Best Option for International Subpoenas
Lanier Saperstein and Samuel Hickey
One provision of the AMLA was added with little fanfare and minimal discussion, yet it could have a significant impact on foreign financial institutions doing business in the United States.
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Business Crimes Bulletin
Government Secret Recording of Interviews Rarely In Best Interests of Witness
Joel Cohen
Secretly recording conversations or interviews is a dirty business, and it is almost never conducted by the government with the best interests of the witness in mind.
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Business Crimes Bulletin
Sorting Through the Trump Financial Documents: How Prosecutors Will Search for Clues
Nicholas Gaffney
A Q&A with Bobby Malhotra, Munger, Tolles & Olson LLP, Los Angeles
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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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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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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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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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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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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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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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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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Business Crimes Bulletin
Preserving the Privilege In the Corporate Setting
Jonathan S. Feld and Kevin Connor
Assessing the risks and liabilities of a potential transaction requires frank and open communication between the parties, including legal counsel. Understanding the scope and limitations of this privilege in transactional settings and who “holds” it is vital to its preservation.
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Business Crimes Bulletin
Scared of Your Clients’ Involvement With Cryptocurrency?
Ross Benson and Robert N. Driscoll
Given the rapid expansion of interest and participation in cryptocurrency transactions, it’s not a matter of whether you have an interest in crypto, think it’s all a bizarre techno-bubble, the eventual replacement for fiat currency, or somewhere in between. The fact of the matter is your clients, and future clients, are more likely than ever to have a connection to this market, and a brief review of the headlines can make this prospect seem terrifying.
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Business Crimes Bulletin
Telehealth: The Wave of the Future for Both Medicine and Enforcement
Jacqueline C. Wolff and Michael Herrmann
The prevalent view is that telehealth will remain an integral part of our healthcare system post-PHE and may even continue to expand. And that means criminal and civil enforcement focused on fraud committed using, or furthered by the use of, telehealth will be expanding as well, particularly when one looks at the dollars that a regulator can bring in for fraud or noncompliance.
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Business Crimes Bulletin
Employers Must Be Mindful of Pay Practices, As Criminal Charges for Underpayment of Workers Becomes Increasingly Common
Carolyn H. Kendall and Abraham J. Rein
Hillary Clinton's 2015 statement about the possibility of incarceration for employment-related failures was, to many, an alarming prospect. Since that time, this movement has grown, and has recently gained momentum. Today, prosecutors across the country increasingly seek criminal fines and jail time for what were previously seen as non-criminal labor violations.
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Business Crimes Bulletin
Federal Public Corruption Prosecutions
Elkan Abramowitz and Jonathan S. Sack
This article describes pending federal prosecutions, which level corruption charges against high-level officials, considers how the theories of prosecution in these cases might be viewed in light of court decisions in other public corruption cases, and concludes with some observations about the outer limits of federal public corruption prosecutions.
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Business Crimes Bulletin
Corporate ESG Integration Not Optional
Alexandra Poe and Bryan Sillaman
Corporate ESG (environmental, social and governance) integration is becoming less optional every day, driven by increasing regulation, investor demand and the recent embrace of stakeholder capitalism.
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Business Crimes Bulletin
Congress Leaves SEC Subject to Litigation Over Disgorgement
Sarah Aberg and Chris Bosch
Buried in the massive National Defense Authorization Act for Fiscal Year 2021 is §6501, a provision authorizing the SEC to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others.
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Business Crimes Bulletin
Criminal Liability of Executives and In-House Attorneys for Corporate Actions
Joseph G. Poluka and David J. Oberly
Data breaches, while frequent in number and severity, remain big news events today. Even more newsworthy is when a corporate in-house attorney is criminally prosecuted in connection with his role in responding to a data breach event.
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Business Crimes Bulletin
Anti-Money Laundering Enforcement Update
Kyle R. Freeny and Benjamin G. Greenberg
Over the last decade or so, anti-money laundering (AML), counter-terrorism financing (CFT), and sanctions compliance have been the subject of increased enforcement efforts. We expect this trend to accelerate in 2021 and beyond, propelled at least in part by the recent enactment of the Anti-Money Laundering Act of 2020.
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Business Crimes Bulletin
Telehealth Enforcement: Is It the Next Big Thing?
Ty E. Howard, Scarlett S. Nokes, Gene R. Besen and Jason P. Mehta
With the Biden administration and a DOJ led by Merrick Garland, predictions have begun about future trends in government enforcement. Two pieces of conventional wisdom emerge: First, the focus will shift to more white-collar crime enforcement actions. And second, the healthcare industry will continue to be a major focus for investigators and prosecutors.
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Business Crimes Bulletin
Congress Expands SEC Powers Just In Time for New Administration
Robert J. Anello and Richard F. Albert
Wall Street has greeted Gary Gensler’s nomination as Chair of the SEC with some trepidation, perhaps with good reason. Congress, by contrast, may have presented him with a powerful signing bonus.
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Business Crimes Bulletin
Global Increase of FCPA Bribery Cases Raises Specter of Piling On
Sozi Pedro Tulante and Joshua Drew
The increasing number of regulators and enforcement agencies bringing foreign bribery cases across the globe raises the specter of successive or “carbon copy” cases. Policymakers and practitioners need to be aware of this developing risk and take steps to mitigate it.
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Business Crimes Bulletin
Does Corporate Attorney-Client Privilege Extend to Company Executive?
Elkan Abramowitz and Jonathan S. Sack
The question of when does company counsel also represent a company executive often comes up in white-collar issue investigations.
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Business Crimes Bulletin
Best Practices for Virtual Internal Investigations
Peter W. Baldwin, Daniel E. Pulliam, Elizabeth B. Boggia and Sophie H. Gotlieb
In order to ensure that remote internal investigations are probative and effective, companies and their outside counsel should employ a few simple and practical practices.
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Business Crimes Bulletin
Considerations When Entering Into a Tolling Agreement
Evan T. Barr and Christopher H. Bell
Defense counsel in complex white-collar investigations are often asked to waive these important protections by entering into tolling agreements, stopping the clock on the statute of limitations at issue. Whether such an agreement is actually in a target or subject’s best interest presents a difficult question, and COVID-19 has impacted the calculus.
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Business Crimes Bulletin
Leveraging Data to Drive Innovation in A Post-Pandemic World
Debra Baker
With a new year and fresh outlook for the future, the time is ripe for legal technologists and innovators to take the delivery of legal services and client experience to the next level. One key is recognizing that successful innovation is equal parts mindset, method and message.
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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
Second Circuit Ruling on Personal Benefit Test Widens Scope of Criminal Insider Trading
Robert J. Anello and Richard F. Albert
The holding in Blaszczak significantly widens the scope of criminal insider trading. It also creates the anomaly of extending the criminal law beyond the SEC’s civil enforcement authority.
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Business Crimes Bulletin
Equal Justice Should Apply to All, Including the President’s Friends
Harry Sandick and Jacob Tuttle Newman
This article considers certain positions taken by DOJ in cases involving Roger Stone, Michael Flynn and the subpoenas duces tecum issued by the New York District Attorney’s Office in connection with its investigation into the Trump Organization.
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Business Crimes Bulletin
Defending Attorneys Against Extortion Charges Presents Unique Challenges
Bradley A. Marcus
Although the criminal prosecution of lawyer misconduct is nothing new, the recent indictment of a plaintiffs’ lawyer in Maryland and sentencing of two plaintiffs’ lawyers in Virginia illustrate the particular danger to attorneys who arguably cross the line during negotiations with potential litigation counterparties.
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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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Business Crimes Bulletin
SCOTUS Set to Address Circuit Split in Interpreting CFAA
Elkan Abramowitz and Jonathan S. Sack
The Computer Fraud and Abuse Act (CFAA) is the sort of broadly worded criminal statute which gives white-collar prosecutors considerable power — and makes defense counsel and judges uneasy. The meaning of “or exceed[ing] authorized access” is not so clear.
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Business Crimes Bulletin
Biden Administration May Bring Uptick In White-Collar Work
Andrew Maloney
With a change in priorities, and issues such as health care, climate and another stimulus package potentially on the agenda for President-elect Joe Biden, white-collar defense lawyers anticipate an uptick in enforcement work.
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Business Crimes Bulletin
Ransomware: To Pay or Not to Pay Is Not the Question
Michel Sahyoun
It is not the ransom but the costs associated with the failure to prevent the attack and the consequent remediation that may prove to be a real company killer.
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Entertainment Law & Finance
Inside Prosecutors’ 5Dimes Deal for Offshore Online Sports Betting
Ross Todd
Laura Varela was unaware that her husband, William Sean Creighton, was under investigation by the U.S. Department of Homeland Security and prosecutors in the Eastern District of Pennsylvania for his 5Dimes sports betting website until Creighton was kidnapped — and later found dead.
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Business Crimes Bulletin
No ‘Fishing’ In Trump Tax Return Case
Steven A. Cash
“Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime.” Judge Victor Marrero, writing in a decision dismissing the President’s civil suit under the Civil Rights Act, neither gives a fish, nor teaches how to fish — rather he explains what fishing is.
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Business Crimes Bulletin
The ‘Right to Control’ Wire Fraud Theory Should Be Eliminated
Harry Sandick and Ian Eppler
In recent decades, federal fraud prosecutions have relied on the theory that a defendant can fraudulently deprive a victim of the intangible “right to control” its assets, even if the victim is not deprived of any tangible money or property. While this theory has been repeatedly affirmed by the Second Circuit, it is incompatible with a series of recent Supreme Court cases in which the Court has narrowed the scope of federal white-collar criminal statutes by adopting narrow definitions of the term “property.”
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Business Crimes Bulletin
Don’t Set It & Forget It: The Importance of Evaluating & Evolving Healthcare Compliance Programs
Brian Bewley, James D. Gatta and Kaitlyn L. Dunn
The federal government won or negotiated over $2.6 billion in healthcare fraud judgments and settlements in 2019. The government’s investment of resources toward combatting fraud, waste and abuse in healthcare can be expected to continue in full force, irrespective of a change in political administration. Accordingly, it is important for healthcare companies to focus on maintaining flexible and effective compliance programs.
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Business Crimes Bulletin
Corporate Compliance Programs and the DOJ’s Emphasis on Data Analytics: What Companies Need to Consider
Jonathan B. New, Jimmy Fokas, Patrick T. Campbell and Bari R. Nadworny
In recent months, the Dept. of Justice has raised expectations for companies to use data analytics to monitor the effectiveness of their compliance programs and to identify potential misconduct.
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Business Crimes Bulletin
The Potential for Fraud or Misbehavior In the Time of COVID-19
A roundtable discussion on the topic of government investigations, corporate compliance efforts, and the potential for fraud or misbehavior in the time of COVID-19.
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Business Crimes Bulletin
Particularized Pleading of Underlying Illegal Acts in the Second Circuit
Steven Paradise and Matthew Catalano
Gamm v. Sanderson Farms, establishes a high burden for a plaintiff to plead adequately failure to disclose illegal conduct — regardless of how much circumstantial evidence a plaintiff is able to amass or how much news coverage the alleged conduct attracts.
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Business Crimes Bulletin
The Updated FCPA Resource Guide
Jacqueline C. Wolff
Something Old, Something New, Something Borrowed, Something Blue
this second edition contains some new “hypotheticals” — facts of actual cases the DOJ finds important enough to focus on — and, in keeping true to its name, has included additional resources and links for chief compliance officers looking to design and audit their companies’ anticorruption compliance programs.
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Business Crimes Bulletin
FIFA Decision Confirms Long Arm of Honest Services Fraud
Robert J. Anello and Richard F. Albert
United States v. Napout
The U.S. government’s lead role in the prosecution of corruption within the Zurich-based FIFA may be a paradigmatic example of U.S. law enforcement acting as the world’s policeman. If corruption is based on foreign executives violating their duties of loyalty to foreign private entities, how does that translate into a violation of U.S. criminal law? Does it matter that the conduct in which the foreign executive engaged — commercial bribery — may not be illegal under the law of the executive’s home country?
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Business Crimes Bulletin
Is an ‘Official Act’ An Element of Public and Private Corruption?
Elkan Abramowitz and Jonathan S. Sack
This article discusses cases that have begun to address whether “official act” is an element in a private honest services fraud prosecution.
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Business Crimes Bulletin
Lessons from the Insider Trading Prohibition Act After Its Likely Demise In the Senate
Telemachus P. Kasulis
For a moment there, it really looked like it was going to happen. After a long and winding road, insider trading reform had reached the floor of the House of Representatives for a vote. The Insider Trading Prohibition Act (ITPA) had support on both sides of the aisle and on Dec. 5, 2019, the House voted to pass the ITPA. Then the bill went to the Senate and vanished. We should take this opportunity to learn what lessons we can from the successes and failures of the ITPA as a bill with an eye toward fashioning the best possible legislation next time — whenever that may be.
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Business Crimes Bulletin
An Ounce of Prevention: Preparing for CARES Act Fraud Investigations
Nekia Hackworth Jones
The government appears to be fulfilling its commitment to rooting out PPP fraud, even when the amount at issue falls below the $2 million threshold. No matter the size of the loan, a company that obtained PPP funds is not immune from a possible government investigation or audit. Borrowers have already started to submit loan forgiveness applications, and many more will be submitted in the weeks ahead, and both lenders and the government will be scouring these submissions for red flags.
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Business Crimes Bulletin
Survey Says: Tips On Getting Over the Daubert Hurdle
Rebecca Kirk Fair, Peter Hess and Vendela Fehrm
This article draws on a review of over 300 U.S. court rulings in cases involving surveys, including over 150 Daubert motions, and provides suggestions for getting survey evidence admitted for consideration in court. Our recommendations fall under two broad categories: relevance and reliability.
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