White Collar

Expert Analysis

• Opinion

  The Case For A Nonpolitical Federal Judiciary

  

  For the last 20 years, at the insistence of both parties, U.S. Supreme Court nominations have been fierce ideological battles — which is bad for the country and bad for the public's perception of the legitimacy of the court, say Judge Eric Moyé, Judge Craig Smith and Winston & Strawn partner Tom Melsheimer.

• The Keys To A Better Privilege Logging Paradigm

  

  Current privilege logging practices to identify what information is being withheld from discovery often lead to costly disputes, so practitioners should adopt a system based on trust and good faith, similar to the presumptions embedded in the business judgment rule for corporate directors and officers, say Kevin Brady at Volkswagen and Charles Ragan and Ted Hiser at Redgrave.

• Opinion

  Pending Changes Pose Threat To SEC Whistleblower Program

  

  If the U.S. Securities and Exchange Commission approves changes to the Dodd-Frank Act whistleblower rules on Wednesday, it will weaken protections for tipsters and radically undermine a regime that has returned $750 million to investors and collected over $2.5 billion in sanctions, says Stephen Kohn of Kohn Kohn & Colapinto.

• White House Due Process Memo Could Reform Enforcement

  

  A little-noticed memo recently issued by the Trump administration in response to the pandemic, directing federal agencies to provide greater due process to individuals and companies under regulatory investigation, represents a long-overdue sea change in the way justice is carried out in enforcement proceedings, say Joan Meyer and Norman Bloch at Thompson Hine.

• What Shifting FCPA Enforcement Means For Financial Cos.

  

  In this brief video, Tom Firestone and Daniela Fonseca Puggina at Baker McKenzie analyze how Foreign Corrupt Practices Act enforcement is placing greater emphasis on bribe recipients, and what this trend means for financial institutions and their know-your-customer policies and practices.

• Uber Exec's Charges In Data Breach Case Reveal Novel Risks

  

  After the recently announced felony charges against a former Uber executive for failing to inform the Federal Trade Commission of a data breach, there are several action items general counsel should now consider to guard against this disturbing new risk of individual criminal liability, say attorneys at V&E.

• Law Firm Hiring Considerations In A COVID-19 Economy

  

  Financially robust law firms are entering the recruiting market aggressively knowing that dislocations like the COVID-19 crisis present rare competitive opportunities, and firms that remain on the sidelines when it comes to strategic hiring will be especially vulnerable to having their best talent poached, says Brian Burlant at Major Lindsey.

• Self-Disclosure Trends In FCPA Corporate Enforcement Policy

  

  A review of 41 actions undertaken since the U.S. Department Justice's Foreign Corrupt Practices Act corporate enforcement policy was introduced four years ago reveals that the DOJ and U.S. Securities and Exchange Commission consistently reward timely self-disclosure and full cooperation, say attorneys at Ropes & Gray.

• Opinion

  Lawyers Must Act To Preserve Democracy This Election

  

  COVID-19 concerns and glaring gaps in registration threaten to dampen voter turnout in the 2020 election, so attorneys should take on the problem by leveraging their knowledge and resources in seven ways, says Laura Brill at Kendall Brill.

• New FCPA Guide Signals Laxer Successor Liability Approach

  

  Recent updates by the U.S. Department of Justice and U.S. Securities and Exchange Commission to the Foreign Corrupt Practices Act resource guide focus on timeliness and thoroughness of post-acquisition due diligence, indicating a potential relaxation of stringent requirements for M&A successor liability, say Paige Ammons and Bree Murphy at Buckley.

• How To Effectively Defend Witnesses In Remote Depositions

  

  When a witness is isolated from the defending lawyer during a remote deposition, carefully planning the logistics and building witness confidence are critical to avoiding damaging admissions, say Jessica Staiger at Archer Daniels and Alec Solotorovsky at Eimer Stahl.

• Discarded Phone Rulings Misapply 4th Amendment Case Law

  

  Recent Nevada and Louisiana state court decisions, allowing police to conduct warrantless searches of cellphones deemed abandoned, are part of a growing trend of state and federal courts not following the U.S. Supreme Court's Fourth Amendment jurisprudence that should concern criminal defense attorneys, privacy rights advocates and employers, says Brandon Boxler at Spencer.

• Whether And How To Compel Remote Arbitration

  Excerpt from Practical Guidance

  

  As the pandemic delays in-person arbitration hearings, mediator and arbitrator Theodore Cheng provides arbitrators with a checklist to examine the rationale and authority for compelling parties to participate in remote hearings.

• Series

  AGs In A Pandemic: James Talks NY Response

  

  New York Attorney General Letitia James highlights her office's efforts to ease financial burdens for New York residents and businesses struggling during the pandemic by fighting fraud, policing employers, assisting with debt relief and more.

• Basic Mandamus Questions Support DC Circ.'s Flynn Ruling

  

  The D.C. Circuit's decision allowing a trial judge to continue his inquiry into the U.S. Department of Justice's request to abandon its case against Michael Flynn is not difficult to digest when one focuses on the two basic mandamus elements, says Douglas Lang at Dorsey & Whitney.