S&C Critical Insights

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October 15, 2021  

Recent SEC Cybersecurity Enforcement Actions

In this episode of S&C’s Critical Insights, Bob Downes, Tony Lewis and Chas Kerin discuss five recent SEC cybersecurity enforcement actions, with a focus on deficient corporate procedures and disclosure controls. They cover the background of the actions, including noteworthy aspects and common issues between them. They also explore how the SEC is addressing cybersecurity issues outside of enforcement, including from the examination and rulemaking perspectives. They conclude with a few takeaways and best practices.

October 6, 2021  

Culture Audits: Taking Stock of Your Workplace Culture

In this episode of S&C’s Critical Insights, Annie Ostrager, co-head of our Labor & Employment Group, and Katharine Rodgers discuss strategies employers should consider when taking stock of workplace culture. Annie and Katharine provide an overview of workplace culture, and why its importance is rising in terms of both employee satisfaction and company risk management. They also explore the components of a proactive culture audit, which can serve as a jumping off point to facilitate employee feedback and the implementation of any workplace improvements.

For more information on this topic, watch our recent webinar, “The Impact of Maintaining a Diverse, Equitable and Inclusive Workforce,” and subscribe to our blog, “Legal Developments Affecting the Workplace.”

September 29, 2021  

Developing a Robust Multi-National Compliance Program

In this episode of S&C’s Critical Insights, Brendan Cullen and Tony Lewis provide key takeaways for building and sustaining an effective compliance program.

 

Brendan and Tony build on their last podcast and discuss the updated guidance from certain U.S. enforcement agencies, talk about certain changes to foreign enforcement regimes and conclude with a few best practices. They also explain the importance of compliance programs, especially in the enforcement context.

 

For more information about this topic, please see Brendan and Tony’s chapter in the Guide to Corporate Compliance, titled “Developing a Robust Compliance Programme in Latin America.”

September 21, 2021  

Supreme Court Business Review: United States v. Arthrex, Minerva Surgical v. Hologic and Google v. Oracle

In the sixth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Dustin Guzior, co-head of S&C’s Intellectual Property & Technology Litigation practice, to discuss three intellectual property cases that the Supreme Court decided last Term and key takeaways for businesses.

In United States v. Arthrex, the Supreme Court sidestepped an issue that had the potential to affect significantly patent litigation:  whether the Patent Trial and Appeal Board’s administrative patent judges must be appointed by the President with approval of the Senate.  The Court instead held that PTAB’s structure violated the Appointment Clause of the Constitution because the director of the U.S. Patent and Trademark Office did not have sufficient power to review the PTAB’s decisions.  In Minerva Surgical v. Hologic, the Court narrowed the scope of “assignor estoppel,” which precludes the assignor of a patent from later challenging the patent’s validity, by holding that assignor estoppel does not extend to circumstances that did not exist at the time of the assignment. Lastly, in Google v. Oracle, the Court held that Google’s copying of some of Oracle’s application program interface code for Java was fair use.  Because the Court assumed without deciding that such code can be copyrighted in the first place, it left that important question for another day.

August 19, 2021  

Supreme Court Business Review: NCAA v. Alston

In the fifth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Renata Hesse, co-head of the Firm’s Antitrust Group and the former Acting Assistant Attorney General of the DOJ Antitrust Division, to discuss the Supreme Court’s antitrust decision from last Term, NCAA v. Alston.

 

The Supreme Court held that certain NCAA restrictions on the types of benefits that student-athletes may receive violated federal antitrust law. Renata explains the Court’s reasoning, and how certain language in the decision could make it more difficult to establish antitrust liability from joint venture activity.

August 10, 2021  

Supreme Court Business Review: Van Buren v. United States and Facebook v. Duguid

In the fourth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Tony Lewis and Kamil Shields to discuss two technology-related decisions from the past Term.

In Van Buren, the Court limited the application of the Computer Fraud and Abuse Act to exclude defendants who access information for an improper purpose that they are otherwise authorized to access. The Facebook decision narrowed the meaning of “automatic telephone dialing system” in the Telephone Consumer Protection Act, significantly reducing the scope of conduct prohibited by that Act. Tony and Kamil discuss the impact of these decisions for companies, government officials and law enforcement.

August 5, 2021  

U.K. Financial Conduct Authority: Updates and Implications for Non-U.S. Banks and Commercial Organizations

In this episode of S&C’s Critical Insights, Annie Ostrager and Kamil Shields discuss recent activity by the U.K. Financial Conduct Authority and how its approach toward whistleblowers differs from its U.S. counterpart. Annie and Kamil discuss the FCA’s increased focus on non-financial misconduct, such as sexual harassment. They also provide an overview of a new whistleblowing campaign launched by the FCA, “In confidence, with confidence,” and touch on related legislative activity. Finally, they discuss the implications of this government activity for non-U.S. banks and commercial organizations.

 

Annie and Kamil earlier discussed the increased focus by U.S. agencies on the use of whistleblowers in investigations involving alleged money laundering and corruption. Listen to that episode here.

August 2, 2021  

Supreme Court Business Review: Federal Republic of Germany v. Philipp

In the third episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Sharon Cohen Levin, former head of the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney’s Office for the Southern District of New York, to discuss the Supreme Court’s recent decision in Federal Republic of Germany v. Philipp.

 

The case considered whether an exception to the Foreign Sovereign Immunities Act allowed the heirs of a group of Jewish art dealers to bring a lawsuit against Germany in U.S. federal court based on the Nazi regime’s expropriation of German medieval relics. The Court held that the heirs’ claim did not fall within the FSIA’s expropriation exception and therefore was barred by sovereign immunity.

 

Sharon shares the implications of this decision for future FSIA litigants, including heirs of Holocaust victims and victims of other genocides seeking to recover property taken by foreign governments.

 

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July 28, 2021  

Supreme Court Business Review: Ford Motor Co. v. Montana and TransUnion v. Ramirez

In the second episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton and Julia Malkina are joined by Bill Monahan, head of the Firm’s Products Liability & Mass Torts Group, to discuss the implications of two important business decisions from the October 2020 Term. In Ford Motor Company v. Montana Eighth Judicial District Court, the Supreme Court gave further guidance on when state courts can exercise specific personal jurisdiction over nonresident defendants. In TransUnion v. Ramirez, the Court addressed the concrete harm requirement for Article III standing in the context of unnamed class members.

July 20, 2021  

Implications of the Anti-Money Laundering Act of 2020’s Whistleblower Provision

In this episode of S&C’s Critical Insights, Annie Ostrager and Kamil Shields discuss the recent increased focus by the Department of the Treasury, the Securities and Exchange Commission, and the Department of Justice on the use of whistleblowers in investigations involving alleged money laundering and corruption. Annie and Kamil address the role of whistleblowers in these matters from multiple angles, including regulatory, criminal and employment perspectives.

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