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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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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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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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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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Business Crimes Bulletin
Implications of Second Circuit Ruling on Fugitive Disentitlement
Elkan Abramowitz and Jonathan S. Sack
Historically, the “fugitive disentitlement” doctrine has foreclosed challenges to criminal charges by a defendant who does not physically submit to a U.S. court’s jurisdiction. As a consequence, to make even threshold challenges to an indictment, a defendant who lives abroad must leave home, waive the right to oppose extradition, and risk pre-trial detention in the United States.
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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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Business Crimes Bulletin
Why Are Courts Making Cybersecurity Forensics Reports Not Privileged?
David P. Saunders
Internal corporate investigations can be, and frequently are, privileged. However, it is difficult to square that concept with the recent spate of federal court opinions that have concluded that cybersecurity forensic reports generally are not privileged.
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Business Crimes Bulletin
Are Government Investigation Disclosures Protected Under the Common Interest Doctrine?
Elkan Abramowitz and Jonathan S. Sack
This article discusses whether disclosures made when a subject of a government investigation borrows money or sells all or part of its business are protected from discovery on the basis of the attorney-client privilege and pursuant to the common interest doctrine.
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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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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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