Expert Analysis

• How Growing Cyber Scrutiny Affects Corporate Compliance

  

  In the face of overlapping cybersecurity initiatives at the U.S. Departments of Justice and Health and Human Services, health care companies and government contractors should prepare for microscopic scrutiny by ensuring specific components are included in compliance programs and being mindful of reporting obligations under existing corporate integrity agreements, say attorneys at Verrill Dana.

• Opinion

  Why We're Losing The Battle Against Illicit Finance

  

  The recent Pandora Papers investigation highlights how the U.S. Department of the Treasury's anti-money laundering and combating the financing of terrorism framework is failing to address known vulnerabilities in the financial sector that should be replaced with a proactive approach to close loopholes and streamline enforcement, say Kristen Patel at Syracuse University and attorney William Lichtenfels.

• Opinion

  Implementing McGirt Can Provide Tribal Self-Determination

  

  Following a recent string of tribal reservation rulings from the Oklahoma Court of Criminal Appeals, the federal government should apply the U.S. Supreme Court’s 2020 ruling in McGirt v. Oklahoma in order to allow for meaningful tribal self-determination in the provision of criminal justice, says Stephen Greetham at the Chickasaw Nation.

• Med Device Case Highlights Physician IP Deal Best Practices

  

  The U.S. Department of Justice's recent settlement with Arthrex over False Claims Act allegations demonstrates how physician intellectual property arrangements present compliance risks, which medical device companies can mitigate through best practices covering training, governance and other protocols, say attorneys at Paul Hastings.

• Without Leadership Buy-In, Law Firm DEI Efforts Stand To Fail

  

  A law firm's diversity, equity and inclusion strategies need the full attention and support of its top leadership to succeed, and requiring the firm's key decision makers to join the DEI committee can make the difference, says Noble Allen at Hinckley Allen.

• Best Practices In Preparation For FCPA Enforcement Surge

  

  As the U.S. Department of Justice enhances its ability to detect and prosecute Foreign Corrupt Practices Act violations, companies should evaluate and improve their risk assessment methodologies, anti-corruption policies and other compliance tools to help mitigate the consequences of alleged wrongdoing, says Norman Harrison at Kroll.

• Series

  Confronting Origination Credit: Self-Advocacy Tips For Attys

  

  Female lawyers and lawyers of color have historically not been privy to the rules of the origination credit game, but they can employ various strategies to increase the chances of receiving the credit they are due, such as enlisting allies for support and tracking inequity patterns, says Marianne Trost at The Women Lawyers Coach.

• SEC's Alleging An Asset Is A Security Does Not Make It So

  

  In Audet v. Fraser, a Connecticut federal jury recently disagreed with the U.S. Securities and Exchange Commission's position that so-called hashlets are investment contracts, showing that the SEC's overreach in classifying digital assets, and the complexity of cryptocurrencies, require further guidance and case law to clarify the limits of federal securities law, say Nick Morgan and Ken Herzinger at Paul Hastings.

• A Real-World Guide To Staying Discovery In Federal Court

  

  Pleas for stay of discovery under the Federal Rules of Civil Procedure are often rejected when motions to dismiss are pending due to a tenacious tangle of case law, imposing financial and administrative burdens on parties, but some unambiguous rules of thumb can be gleaned to maximize the chances of a discovery stay, says Amir Shachmurove at Reed Smith.

• SEC Warning To Crypto Attys Harkens To Prior Crackdowns

  

  U.S. Securities and Exchange Commission Chair Gary Gensler recently admonished fintech lawyers who help clients circumvent federal securities laws, which is a throwback to similar warnings to attorneys during the 2018 initial coin offering bonanza and 1990 savings and loan crisis, suggesting those who control access to crypto investors may face increased scrutiny, says cybersecurity consultant John Reed Stark.

• How Advice-Of-Counsel Defense May Fare In Bannon Case

  

  While it appears that Steve Bannon will say he relied on the advice of his counsel to defend contempt of Congress charges for noncompliance with a House subpoena, the viability of this argument turns on the precise contours of the legal advice his attorney provided, says Steven Gordon at Holland & Knight.

• 2nd Circ. Madoff Ruling Is A Win For Asset Recovery Trustees

  

  In the Bernie Madoff investor clawback case, the Second Circuit recently ruled that the inquiry notice standard for considering a transferee's good faith applies in liquidation proceedings, which means Securities Investor Protection Act trustees can now rely on a lesser standard and may face less difficulty surviving a motion to dismiss, say attorneys at Seward & Kissel.

• How DOJ May Beat The White Collar Fraud Clock Post-COVID

  

  The U.S. Department of Justice will likely employ creative strategies to try to sidestep the five-year statute of limitations in certain complex white collar matters following widespread delays due to the pandemic, but each method comes with nuances and weaknesses that may allow appropriate challenges from defense counsel, say Michael Harwin at Stearns Weaver and David Chaiken at ChaikenLaw.

• Auto Cos. Must Prep For State AG Action On Fuel Efficiency

  

  State attorneys general continue to demonstrate their active interest in fuel efficiency standards, so automotive companies should monitor state AGs' statements and activity to respond quickly to new regulatory and enforcement initiatives, say James Koukios and Nathan Reilly at MoFo.

• Insurance Tips For Mitigating DOJ Cyber Initiative Risks

  

  For companies and executives involved in False Claims Act actions alleging cybersecurity failures like those envisioned by the U.S. Department of Justice's new cyber fraud initiative, certain insurance policies could help defray the substantial costs of defense and even settlement liability, say attorneys at Hunton.