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LJN Quarterly Update: 2024 Q2
Steve Salkin
The LJN Quarterly Update highlights some of the articles from the nine LJN Newsletters titles over the quarter. Articles include in-depth analysis and insights from lawyers and other practice area experts.
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Business Crimes Bulletin
DOJ’s Cyber Fraud Initiative: A Wake-up Call That Keeps Ringing
Randy S. Grossman, Kareem A. Salem and Kayla LaRosa
DOJ’s Cyber Fraud Initiative has been a wake-up call for companies to prioritize cybersecurity and adhere to stringent standards. By leveraging the FCA, DOJ has used a powerful enforcement tool to target a wide range of cybersecurity failures and misrepresentations. The increasing focus on cybersecurity by enforcement agencies means that robust cybersecurity practices are becoming a standard expectation, not just a best practice.
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Business Crimes Bulletin
The State of Supreme Court Jurisprudence On Public Corruption
Carrie H. Cohen and Allison M. Magnarelli
In the past decade, each time the Supreme Court has taken certiorari in a public corruption case, the court has reversed trial convictions and limited the types of conduct that constitute a federal bribery offense.
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Business Crimes Bulletin
Defending Against Extradition to the United States
Robert J. Anello and Richard F. Albert
The arm of U.S. extradition law is long. Fortunately, practitioners have defenses at their disposal that they may raise in the requested country’s courts to help either limit the scope of prosecution once extradition occurs, or to prevent it altogether.
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Business Crimes Bulletin
New DOJ Self-Disclosure Pilot Program Increases Risk for Startups
Jonathan Fahey, Jonathan P. Lienhard and Oliver Roberts
The DOJ has created new incentives for employee, or anyone, to report criminal misconduct allegedly committed by companies and their agents. Given their often laxer internal reporting structures and higher employee turnover rates, startup companies should pay particularly close attention to this new development to best mitigate legal risks.
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Business Crimes Bulletin
Antitrust Enforcement Agencies Target AI Companies
Sulaiman Abdur-Rahman
U.S. antitrust enforcement agencies may file complaints against the biggest companies advancing artificial intelligence, legal experts said in reaction to news reports of a handshake agreement between the Department of Justice and Federal Trade Commission.
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LJN Quarterly Update: 2024 Q1
LJN Editorial Staff
Highlights some of the in-depth analysis and insights from lawyers and other practice area experts from the nine LJN Newsletters titles over the first quarter of 2024.
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Business Crimes Bulletin
Second Circuit Holds No Special Standard for Charging Campaign Contributions As Bribes, Reinstates Charges Against Former NY Lieutenant Governor
Paul Tuchmann
We now have an opportunity to see whether the volume of campaign contribution bribery cases in the Second Circuit increases, and whether the government brings any cases that appear to infringe on the First Amendment interests of campaign contributors and candidates.
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Business Crimes Bulletin
Algorithms and Antitrust
Ediberto Roman
The economic benefits realized from generative AI are nothing short of astounding. That is why it is so concerning that the DOJ, the FTC, and a small choir of members of Congress seem intent on regulating algorithms away from the economy on antitrust grounds.
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Business Crimes Bulletin
How Will Criminal Law Enforcement Be Able to Police the Improper Use of AI?
Leo Tsao, Robert Luskin and Corinne Lammers
Given the DOJ’s limited tools to prosecute AI crimes where no one intended for the AI to violate the law, effective compliance likely will be the best defense for companies to avoid criminal charges for AI-based crimes.
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Business Crimes Bulletin
What Effective Cooperation With the SEC Looks Like, According to SEC Enforcement Director
Maria Dinzeo
Companies should be going above and beyond what’s legally required to earn leniency from the SEC, its top enforcement official said at a gathering of white collar defense attorneys and in-house counsel
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Business Crimes Bulletin
Worldwide Regulations Increasing Compliance Challenges
Chris O'Malley
Regulators worldwide — not just in the United States — are putting in place new programs and policies that will make steering clear of enforcement bunkers even more difficult. And one of the most worrisome, according to corporate attorneys, is a new DOJ pilot program that will provide stronger incentives for whistleblowers to rat out their co-workers and employers for misconduct.
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Business Crimes Bulletin
OFAC, Commerce, and DOJ Emphasize Pursuit Of Enforcement Actions Against Non-U.S. Persons and Entities
Harry Sandick and Sarah Hardtke
The guidance mirrors the recent, broader impulse among U.S. prosecutors and regulatory agencies to extend application of U.S. law to foreign persons and entities, even when those persons and entities have only threadbare connections to the U.S.
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Business Crimes Bulletin
Privilege in Public Relations: Can Clients Protect Communications Between Their Lawyers and PR Firms?
Jonathan B. New, Patrick T. Campbell and Rachel H. Ofori
Because PR firms may be considered third parties for privilege purposes, it is crucial that communications between a company’s counsel and its PR firm are handled with care to avoid waiving the attorney-client privilege.
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Business Crimes Bulletin
Navigating the SEC’s New Cybersecurity Disclosure Rules
Olivia J. Greer, Catherine Kim and Jeeyoon Chung
With the first cybersecurity rule for public companies, and the landscape of ongoing scrutiny and enforcement, SEC registrants should not lose time in reviewing their cybersecurity postures and policies to ensure compliance and, even ahead of formal adoption of certain still-pending rules, align with best practices.
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Business Crimes Bulletin
Understanding the Difference Between Advocacy and Obstruction When Facing Government Investigations
Christopher D. Carusone
Corporate counsel must understand the difference between advocacy and obstruction when facing government investigations.
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Business Crimes Bulletin
FTC Finalizes Ban On Noncompete Agreements
Maydeen Merino
The rule will generally ban employers from entering, maintaining or attempting to enter a noncompete agreement with an employee, or conveying — absent a good-faith basis — that a worker is subject to a noncompete clause.
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Business Crimes Bulletin
SCOTUS Curbs ‘Pure Omissions’ Lawsuits
Jimmy Hoover
In a unanimous victory to the securities industry, the U.S. Supreme Court curbed investor lawsuits based on a company’s mere failure to disclose known trends likely to affect their revenues.
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Business Crimes Bulletin
Common Pitfalls In Personal Device Collection
Marjorie Peerce and Marguerite O’Brien
Both the DOJ and the SEC have made it clear that they will look at company BYOD policies when assessing how to resolve matters under their purview. To avoid pitfalls — and sanctions — counsel must take proactive steps to ensure proper preservation and collection of personal mobile data and verify that clients comply.
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Business Crimes Bulletin
FCPA Compliance Guidance for Global Businesses
Cole Callihan
The Biden administration and its Justice Department have established countering corruption as a core U.S. national security interest. Companies with any international operations should ensure they have a robust written policy and compliance program focused on anti-bribery and corruption.
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Business Crimes Bulletin
Regulators Want AI Companies to Respect Antitrust and Consumer Protection Laws
Karen Hoffman-Lent and Kenneth Schwartz
The new era of AI technology has ushered in competition concerns alongside consumer-protection fears. Accordingly, regulators and lawmakers are taking note of the AI craze and are keen on ensuring that companies involved in AI are respecting both antitrust and consumer protection laws.
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Business Crimes Bulletin
Will the Corporate Transparency Act Smother the Cannabis Industry?
Steve Schain
The CTA requires business entities to file information on their “beneficial owners” with FinCEN, which, in turn, may disclose it to domestic and foreign law enforcement agencies, prosecutors, judges and financial institutions.
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Business Crimes Bulletin
California DOJ’s Mission: Reinvigorate Criminal Prosecutions Program
Maria Dinzeo
California hasn’t brought a case for criminal antitrust violations in more than 20 years. But that’s about to change, according to California Assistant Attorney General Paula Blizzard.
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Business Crimes Bulletin
FTC Chair Concerned About Dominant Tech Firms
Maydeen Merino
The concentration of dominant technology firms could harm U.S. national interests and global leadership, Federal Trade Commission Chair Lina Khan said in March at a Carnegie Endowment for International Peace event.
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Business Crimes Bulletin
Decoding DOJ’s New ‘Justice AI’ Initiative
James D. Gatta, Allan J. Medina and Ian Q. Rogers
The DOJ is likely to face many practical challenges and novel issues as it begins coding its own algorithm for AI-related enforcement. This article briefly examines three areas of AI-related enforcement where such practical challenges and novel issues may arise.
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Business Crimes Bulletin
The FTC and DOJ’s New Guidelines Promise Sharper Scrutiny of Mergers
Karen Hoffman Lent and Kenneth Schwartz
From loosened structural presumptions to unconventional theories of harm such as “ecosystem competition” to consideration of a merger’s effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
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Business Crimes Bulletin
Supreme Court Set to Decide On Competing Interpretations of Federal Corruption Statute
Elkan Abramowitz and Jonathan Sack
In this article, we describe the competing interpretations of Section 666 and comment on the implications of a Supreme Court decision in United States v. Snyder, where it will decide whether the law criminalizes “gratuities,” and not simply “bribes,” given to state and local officials.
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Business Crimes Bulletin
The Role of the SEC In Cryptocurrency Regulation and Enforcement
Jay Dubow, Joanna Cline and Milica Krnjaja
The SEC's cryptocurrency-related actions reached a new high in 2023, jumping more than 50% when compared to 2022. We expect the SEC’s enforcement efforts in this area to continue at a high pace in 2024, even though whether or not cryptocurrency should be classified as a security or something else remains uncertain.
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Business Crimes Bulletin
Global Antitrust Competition Enforcers Are Back, According to Report
Gail J. Cohen
Labor markets, artificial intelligence and consumer-related issues are going to be under the microscope from antitrust investigators around the globe in 2024, according to a report from Morgan, Lewis & Bockius.
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Business Crimes Bulletin
SEC Keeping Eye On Non-GAAP Financial Disclosures
Kirsten Ulzheimer
The SEC’s Division of Corporation Finance continues to provide comments to issuers about non-GAAP financial measures, and the SEC’s Division of Enforcement continues to investigate the accuracy of such non-GAAP metrics and, when necessary, will enforce charges against a company for providing misleading non-GAAP financial measures.
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Business Crimes Bulletin
Artificial Intelligence: The New Weapon of Insider Threats
Peter Collins
It is imperative that every organization acknowledges and takes seriously the potential harm that can be caused by insiders who misuse AI as a weapon for personal gain or to settle scores.
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Business Crimes Bulletin
Contours of Bribery Analyzed By Second Circuit In Bank Corruption Case
Elkan Abramowitz and Jonathan Sack
This article analyzes the Second Circuit’s decision, which rejected the defense’s arguments for narrowing the definition of “corruptly” and a “thing of value” in the context of Section 215(a)(2).
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Business Crimes Bulletin
SEC Revises Beneficial Ownership Reporting Rules
Sarah Heaton Concannon and Alexander Schwartz
This article identifies certain information asymmetries in the SEC’s beneficial ownership reporting rules, discusses the extent to which those information asymmetries are addressed (or not) under the SEC’s recent rule amendments, and considers whether additional rule amendments or SEC guidance continue to be necessary.
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Business Crimes Bulletin
SEC Chief Warns Against 'AI Washing'
Maydeen Merino
Artificial intelligence could drive greater efficiency and lower costs in the finance sector but U.S. Securities and Exchange Commission Chair Gary Gensler warned last month about companies potentially making false claims about using the technology, a nefarious practice known as “AI washing.”
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Business Crimes Bulletin
SCOTUS Seeks to Provide Clarity Over Investor Suits
Jimmy Hoover
In a case that could either stem or unleash a tide of investor lawsuits, the Supreme Court searched for a narrow way to rule that might still be of some value to the securities bar.
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Business Crimes Bulletin
The Benefits of Utilizing a Written Joint Defense Agreement Properly Tailored to Limit Future Conflicts
Robert J. Anello and Richard F. Albert
A recent decision from the U.S. District Court for the Southern District of Florida illustrates a benefit of utilizing a written joint defense agreement properly tailored to limit future conflicts, rather than relying on the oral agreements that are common among many practitioners.
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Business Crimes Bulletin
Navigating the Complexities of Internal Investigations In the Current Climate
Carrie Cohen, Brian Michael and Christine Wong
Today, internal investigations have taken on added complexity given the government’s current emphasis on voluntary disclosures, the increased vigor of social justice movements, the 24/7 news cycle, and other heightened risks that often require companies to respond quickly to an unexpected event or potential crisis. To help companies navigate these complexities and best address such situations, the following strategies should be considered.
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Business Crimes Bulletin
The DOJ’s Corporate Enforcement Policy: One Year Later
Jolie Apicella
The DOJ’s Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ’s implementation of the new policy in practice.
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Business Crimes Bulletin
Lack of Transparency In SEC Settlement Penalty Calculations May Frustrate Self-reporting
Michael J. Osnato Jr., Meaghan Kelly and Stephanie Hon
SEC settlements often lack explanation as to how the civil monetary penalties were calculated per the statutory framework or why such penalties were appropriate under the circumstances. This lack of transparency tends to create market confusion and may frustrate certain behavior the SEC seeks to encourage, namely self-reporting.
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Business Crimes Bulletin
Business Crimes Bulletin Is Going Digital Only. Here’s What You Need to Know.
Steve Salkin
The final print edition of Business Crimes Bulletin will be our January issue.
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Business Crimes Bulletin
Leveraging Data and Deal Terms to Meet the Demands of the DOJ’s New M&A Safe Harbor
Patrick T. Campbell, Jonathan B. New, James A. Sherer, and Lauren E. Sternbach
This article describes the DOJ’s new M&A safe harbor policy and also provides practical insights on how companies engaged in M&A can meet the DOJ’s expectations.
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Business Crimes Bulletin
AI Is Attracting Antitrust Regulatory Scrutiny
Gretchen L. Jankowski and Abigail L. Cessna
While some jurisdictions are enacting or proposing AI-specific regulation, many existing regulatory frameworks apply to new technologies, including antitrust. Companies may experience different potential antitrust risks depending on the type of AI technology and their use of that technology.
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Business Crimes Bulletin
Are Law Firms Ready for the Corporate Transparency Act?
Ross Aronowitz
With the beginning of a new year around the corner and the introduction of new compliance obligations under the Corporate Transparency Act (CTA), many law firms are scrambling to determine how they will assist clients who may be subject to these additional regulations.
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Business Crimes Bulletin
The White House’s AI Executive Order Has Teeth, But Does It Bite?
Cat Casey
Packing more tricks and treats than a suburban soccer mom, this sweeping order was ambitious, to say the least, artfully seeking to thread the needle and balance fear and desire when it comes to the AI renaissance sweeping the globe. And yet, hidden within the body of the order lay something that might make this sweeping and ambitious order flop.
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Business Crimes Bulletin
EU’s New Foreign Subsidies Regulation Creates Risk for Foreign Companies
Linda A. Thompson
Now, large companies doing business in the EU must report any financial contribution received from a government in a non-EU country in the last three years.
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Business Crimes Bulletin
Enhanced Oversight of Search Warrants and Title III Wiretaps
Harry Sandick, Bonnie Robinson and Thomas Kicak
Search warrants and wiretaps were once used primarily to investigate organized crime, drug dealing and terrorism. In recent years, however, prosecutors have employed these tools increasingly in the context of white-collar crime to the point where it is now commonplace.
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Business Crimes Bulletin
FIFA Decision Curtail U.S. Efforts to Police Foreign Commercial Bribery
Robert J. Anello and Richard F. Albert
Heeding the U.S. Supreme Court’s clear message that ever-expanding constructions of the general fraud statutes are out of style, the latest decision out of the U.S. District Court for the Eastern District of New York in the long-running FIFA saga has the potential to substantially curtail U.S. efforts to police foreign commercial bribery.
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Business Crimes Bulletin
Managing Regulatory Risks In Times of Hyper-Aggressive Enforcement
Trudy Knockless
Companies need to be proactive and super-responsive to investigators to manage regulatory risks in this area of hyper-aggressive enforcement, according to in-participants in a recent panel at ALM Global’s General Counsel East in New York City.
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Business Crimes Bulletin
Restitution Rights for Victims of White-Collar Crime
Seth Farber, Marcelo Blackburn and Sarah Viebrock
However, when corporate misconduct rises to the level of a crime, and when that crime results in a federal criminal conviction, victims have an alternative: an order of restitution as part of the corporate defendant’s criminal sentence. As discussed below, victims enjoy several strategic advantages in a restitution proceeding that they do not in civil litigation.
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Business Crimes Bulletin
SPAC Transaction Challengers Face Uphill Battle
Jay A. Dubow, Joanna J. Cline and Erica H. Dressler
Recent decisions by the Delaware Court of Chancery demonstrate that when a special purpose acquisition company (SPAC) transaction and the disclosures surrounding it are challenged, defendants may face an uphill battle to prevail on a motion to dismiss, especially where breach of fiduciary duty claims have been asserted.
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