David Smyth

David Smyth

Brooks Pierce

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Spuds MacKenzie Runs into FCPA/Whistleblower Buzzsaw

Ha. I’m just kidding. I don’t think Spuds MacKenzie has been a thing for years. But his former patron, Anheuser-Busch InBev, ran into some FCPA problems last month, and tacked on a whistleblower charge for good measure....more

10/21/2016 - Anheuser-Busch Books & Records Enforcement Actions FCPA Foreign Official Internal Controls Rule 21F SEC Separation Agreement Whistleblower Protection Policies

SEC Opens up the Toolbox to File First Stand-alone Whistleblower Retaliation Case

Welcome back to Whistleblower Week here at Cady Bar the Door. It is a glorious time. Today we discuss In re International Game Technology, Inc., filed on September 29th. While it has done this before alongside other...more

10/20/2016 - Anti-Retaliation Provisions Dodd-Frank Employer Liability Issues Internal Investigations Popular Rule 21F SEC Whistleblowers

OSHA Also Hates It When You Discourage Whistleblowers

Following up on our recent coverage of the SEC’s administrative orders in BlueLinx Holdings and Health Net, we now bring you the somewhat dated “news” of interim guidance issued by the Occupational Safety and Health...more

10/20/2016 - BlueLinx Holdings Health Net Interim Guidance Liquidated Damages OSHA SEC Severance Agreements Whistleblower Protection Policies

SEC Smacks Another Company for Impeding Whistleblowers by Prohibiting Monetary Awards

As we discussed, in early August the SEC sued BlueLinx Holdings, Inc. for violations of Rule 21F-17(a) for the way it structured its severance agreements to prevent departing employees from collecting monetary awards if they...more

10/18/2016 - BlueLinx Holdings Health Net SEC Severance Agreements Whistleblower Awards

The SEC Hates It When You Discourage Whistleblowing

There have been lots of developments on the whistleblower front over the last couple months, and we’ve covered none of them here at Cady Bar the Door. Let’s try to catch up. Today we’ll discuss the first of this recent...more

10/17/2016 - BlueLinx Holdings Contract Terms Former Employee Rule 21F SEC Severance Agreements Whistleblower Protection Policies

Audit Partner Violates Independence Rule in Way He Probably Never Expected

I’ve been thinking about these auditor independence cases since the administrative orders were issued a few weeks ago. They’re very interesting to me for a couple of reasons, but let’s start with the rules...more

10/13/2016 - Audits GAAS PCAOB Regulation S-X SEC

The Insider Trading Cartoon Series, Vol. X -- Tipping (pre-Newman) [Video]

Are you getting geared up for United States v. Salman in the U.S. Supreme Court?  First, how does one become liable in a "tipping" insider trading case?  We have some characters that will tell you:...more

9/30/2016 - Insider Trading US v Salman

Municipal Bond Actions May Be about to Get Ugly

Back in the 1970s, SEC Enforcement Director Stanley Sporkin had a problem. He had stumbled onto what looked like a vast number of illicit payments from public companies to people who shouldn’t have been receiving them,...more

9/6/2016 - MCDC Municipal Bonds SEC Voluntary Disclosure

Being a Returned Fugitive from Justice May Not Be the Worst Thing

But don’t flee justice! This is not legal advice to you, but I really don’t mean to recommend avoiding problems with federal prosecutors by going to other countries where it’s hard for those prosecutors to catch up with you....more

8/26/2016 - Indictments Money Laundering Securities Fraud Spoliation Wire Fraud

Turns Out the Second Circuit . . . Uh, Heh Heh . . . Tossed Gibson Dunn for a Very Good Reason

So yesterday I wrote about the seemingly wrongheaded decision by the U.S. Court of Appeals for the Second Circuit to strike Gibson Dunn’s appearance from Lynn Tilton’s case in that court. Its apparent issue was that Judge...more

8/4/2016 - Administrative Hearings Appeals Gibson Dunn Impartiality Judges Legal Ethics SEC

Second Circuit Tosses Gibson Dunn from Lynn Tilton’s Case for Some Reason or Another

You may know about Lynn Tilton’s fight with the SEC, which has accused (link is external) the Patriarch Partners chief of defrauding her investors. The SEC brought its case in administrative court (link is external), which...more

8/3/2016 - Administrative Hearings Advisory Opinions Ethics Impartiality Judges SEC

Ninth Circuit Says You’re Going to Jail for Visiting That Website without Permission

Zounds, right? But that is arguably what the U.S. Court of Appeals for the Ninth Circuit said about the Computer Fraud and Abuse Act in Facebook v. Power Ventures, Inc. on July 12th. Let’s get to it....more

7/28/2016 - Appeals Cease and Desist Computer Fraud and Abuse Act (CFAA) Facebook Revocation Terms of Use Unauthorized Access US v Nosal Web Scraping

Ninth Circuit Interprets “Without Authorization” under the Computer Fraud and Abuse Act

When we last left David Nosal, he had escaped liability under the Computer Fraud and Abuse Act after convincing some of his former colleagues at executive search firm Korn/Ferry to use their log-in credentials to download...more

7/28/2016 - Computer Fraud and Abuse Act (CFAA) Confidentiality Agreements Convictions Criminal Liability Former Employee Misappropriation Passwords Popular Trade Secrets Unauthorized Access US v Nosal

Taking a Walk Back to a Kinder, Gentler Interpretation of the Computer Fraud and Abuse Act

We don’t usually talk about four-year-old court decisions in the first instance here. But the Ninth Circuit has issued a pair of noteworthy opinions interpreting the Computer Fraud and Abuse Act in the last few weeks. And...more

7/26/2016 - Aiding and Abetting Computer Fraud and Abuse Act (CFAA) Confidential Information Criminal Liability En Banc Review Former Employee Popular Trade Secrets Unauthorized Access US v Nosal Young Lawyers

Fourth Circuit Says Embezzlement Is Not Theft under the Immigration and Nationality Act

Is embezzlement theft? Some people think it is. Even common sense suggests it. But the U.S. Court of Appeals for the Fourth Circuit can’t live in the world of common sense. It lives in a world of statutes that have words,...more

6/27/2016 - Aggravated Felony Board of Immigration Appeals Consent Embezzlement Immigration and Nationality Act Lawful Permanent Residents Prior Conviction Theft

Supreme Court Says Prosecutors Can’t Judge the Cases They Prosecute

Not all of the justices would put it that way. To be fair to the dissenters, and because his version is shorter, we’ll use Justice Thomas’s description of the underlying facts from his dissent in Williams v. Pennsylvania,...more

6/16/2016 - Brady Violation Convictions Criminal Prosecution Death Penalty Due Process Fourteenth Amendment Post Conviction Relief Act Recusal SCOTUS Williams v Pennsylvania

Don’t even think about violating that penny stock bar.

The penny stock world can be rough. So rough that breaking the rules in that corner of the securities markets ban bring its own kind of injunction, one that’s much more specific than the typical don’t-break-the-law-anymore...more

6/13/2016 - Enforcement Actions Neither Admit Nor Deny Settlements Penalties Penny Stocks Permanent Injunctions SEC Securities Exchange Act Suspensions & Debarments

Fourth Circuit Says Law Enforcement Doesn’t Need a Warrant to Figure out Where You Are

Like many people, Aaron Graham and Eric Jordan carried cell phones around in 2011. Unlike most people, Graham and Jordan were convicted of crimes arising from their participation in a series of armed robberies in that period,...more

6/6/2016 - Cell Phones Criminal Investigations Fourth Amendment Law Enforcement Location Data Reasonable Expectation of Privacy Search Warrant Stored Communications Act

The Insider Trading Cartoon Series, Vol. IX -- Tender Offers [Video]

I want to talk about Rule 14e-3, because it has significant implications for insider trading liability. But to do that, we first have to talk about tender offers, and what they are....more


Phil Mickelson is very glad United States v. Newman is the law in the Second Circuit.

Phil Mickelson, whom the SEC describes as a “successful professional golfer,” was not charged with insider trading earlier today. I wasn’t either, and I’m glad about that. And you probably weren’t either! High fives all...more

5/20/2016 - Disgorgement DOJ Equitable Relief Insider Trading Material Nonpublic Information Personal Benefit Popular Prejudgment Interest SEC US v Newman

Custody rule examiners need to, you know, examine.

Here’s a thing I know: South Carolina doesn’t require vehicle inspections. Dumb, right? If your car is properly registered, you can drive it there all you want no matter how dangerous it is. Here’s a thing I think I know:...more

5/13/2016 - Administrative Proceedings Custody Rule Enforcement Actions Examiners Investment Adviser SEC

Stop Faxing

I’ve long thought that sending faxes was a pretty silly means of communication. Don’t send me a fax. I don’t want it. At some point I’m hoping that even my kids’ doctor’s office will get dragged into the 20th century and...more

5/11/2016 - Administrative Proceedings Broker-Dealer Cease and Desist Orders Data Protection Data Security Faxes Penalties Personally Identifiable Information Regulation S-P SEC Securities Exchange Act

The Insider Trading Cartoon Series, Vol. VIII — Negligence? [Video]

Can you resolve your insider trading case with a negligence-based charge? Probably not. If you're lucky enough to get there, it'll only be after a long, painful fight....more

5/11/2016 - Insider Trading Professional Negligence

First Circuit Opens New World of Potential Liability for Video Producers

You may be too young for this to have been a big thing to you, but almost 30 years ago, D.C. Circuit Judge Robert Bork was nominated to the Supreme Court, and Washington, D.C. went into a tizzy. Coming as it did just a year...more

5/4/2016 - Adobe Behavioral Advertising Cartoon Network Data Collection Geolocation Mobile Apps Personally Identifiable Information Putative Class Actions Reversal Subscribers Third-Party Service Provider Video Privacy Video Privacy Protection Act

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