S&C Critical Insights

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.

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.

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.

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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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.

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.

Grant of Certiorari in Pivotal Software v. Zhung Tran

In this episode of S&C’s Critical Insights, David Rein and Julia Malkina discuss the Supreme Court’s recent grant of certiorari in Pivotal Software v. Zhung Tran. The issue before the Court is whether the automatic stay of discovery pending a motion to dismiss for securities actions in federal court also applies in state court. David and Julia discuss how this issue has been decided in state courts, the key issues and arguments likely to be presented to the Supreme Court, and the implications that might result from the Court’s eventual decision.

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Supreme Court Business Review: Series Overview, Collins v. Yellen and California v. Texas

In this episode of S&C’s Critical Insights, litigation partners Judd Littleton and Julia Malkina introduce the second annual podcast series accompanying S&C’s Supreme Court Business Review. The Review summarizes the decisions from each Term that are most relevant to business leaders, and offers practical guidance on the implications of those decisions.

 

Judd and Julia preview upcoming episodes and discuss two of the most interesting and closely watched business-related decisions from this Term: the Court’s June 23 decision in Collins v. Yellen, in which the Court considered a constitutional challenge to the statutory limits on the President’s ability to remove the director of the Federal Housing Finance Authority; and the Court’s June 17 decision in California v. Texas, in which the Court considered another legal challenge to the constitutionality of the Affordable Care Act.

 

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Updates From the Antitrust Agencies and Implications for Enforcement

In this episode of S&C’s Critical Insights, Renata Hesse, former Acting Assistant Attorney General of the Antitrust Division at the Department of Justice, and Sophie Vandergrift, former attorney in the Mergers IV Division of the FTC’s Bureau of Competition, discuss a flurry of recent developments at the U.S. antitrust agencies—including the confirmation of Big Tech critic Lina Kahn to the Federal Trade Commission—and the potential implications for companies engaged in M&A activity or who may otherwise be subject to antitrust scrutiny.

 

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Rodge Cohen, Karen Seymour and Jay Clayton Discuss Board Priorities in Podcast

Rodge Cohen, Karen Seymour and Jay Clayton discuss what board directors need to be focused on in 2021 in a S&C Critical Insights podcast. All three agreed that the “first, indeed, existential issue for every board” is cybersecurity. “The number of cyber attacks and their sophistication is increasing exponentially,” Rodge observed. Jay agreed, adding that “every company should have a regularized approach for the board to be informed about and consider its company’s cyber profile, the threats, the potential attacks, and the defenses.” Karen said that companies should always be preparing for and considering how they would respond to a potential cyber attack. “All of this should have been rehearsed,” she said, so that if an attack occurs, “this isn’t the first time you are thinking what would happen in a crisis.”

The partners also discuss topics ranging from ESG issues to executive compensation to the independence of board leadership.