Recent events have brought renewed attention to the push for greater diversity in the boardroom. In this alert, we discuss several developments highlighting the need for public company directors to remain focused on diversity...more
10/26/2020
/ Anti-Discrimination Policies ,
Board of Directors ,
Corporate Governance ,
Diversity ,
Diversity and Inclusion Standards (D&I) ,
Gender Equity ,
Publicly-Traded Companies ,
Regulation S-K ,
Securities Violations ,
Shareholder Litigation ,
Woman Board Members
Building off a 2018 alert outlining cyber threats generally, and following the federal indictment for money laundering of the founders of the offshore cryptocurrency exchange BitMEX, on Oct. 8, 2020, the U.S. Department of...more
10/13/2020
/ Bitcoin ,
BSA/AML ,
Cryptocurrency ,
Department of Justice (DOJ) ,
Digital Assets ,
Distributed Ledger Technology (DLT) ,
Enforcement Priorities ,
Federal Agency Taskforce ,
FinCEN ,
Money Laundering ,
Money Services Business ,
Popular ,
White Collar Crimes
The Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) has published a risk alert, warning SEC-registered investment advisers, brokers and dealers about the increasing use of...more
10/1/2020
/ Broker-Dealer ,
Cyber Attacks ,
Cybersecurity ,
Data Protection ,
Financial Institutions ,
Investment Adviser ,
OCIE ,
Regulation S-ID ,
Regulation S-P ,
Risk Alert ,
Risk Management ,
Securities and Exchange Commission (SEC) ,
Securities Regulation
In Wong v. Restoration Robotics, Inc., Case No. 18CIV02609 (Cal. Sup. Ct. Sept. 1, 2020), the Superior Court of California for the County of San Mateo recently dismissed claims against an issuer and its directors and officers...more
Can management of a Delaware corporation block members of the board of directors from gaining access to the company’s privileged information? The Delaware Court of Chancery recently addressed this question in the ongoing...more
9/1/2020
/ Board Members ,
Board of Directors ,
Conflicts of Interest ,
Corporate Counsel ,
Corporate Governance ,
Corporate Sales Transactions ,
Discovery Disputes ,
First Impression ,
Joint Clients ,
Privileged Communication ,
SoftBank ,
Special Committees
On July 16, the European Court of Justice (ECJ or the Court) struck down the EU-U.S. Privacy Shield program. The ruling invalidated an earlier European Commission (Commission) decision (Privacy Shield adequacy determination)...more
On July 3, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released the Second Edition of their joint Resource Guide to the U.S. Foreign Corrupt Practices Act (Resource Guide or Guide). ...more
Three years ago, in a footnote to its unanimous opinion in Kokesh v. S.E.C., the Supreme Court left open two questions: “whether courts possess authority to order disgorgement in SEC enforcement proceedings” and “whether...more
The outbreak of the novel coronavirus disease 2019 (COVID-19) and the uncertainty surrounding its long-term implications have caused a noticeable disruption in the consummation of mergers and acquisitions (M&A) transactions....more
On May 7, 2020, the Supreme Court unanimously overturned the convictions of two public officials charged in the “Bridgegate” political corruption scandal. ...more
5/13/2020
/ Appeals ,
Bridgegate ,
Criminal Convictions ,
Federal-Program Fraud ,
Governor Christie ,
Intent to Obtain Money or Property ,
Kelly v United States ,
Political Scandals ,
Public Officials ,
Reversal ,
SCOTUS ,
Wire Fraud
On April 13, the New York State Department of Financial Services (DFS) issued guidance to its regulated institutions on how to manage cyber-risks connected to remote working, amid a “significant” increase in cybercrime...more
On April 20, the Supreme Court agreed to review the Eleventh Circuit’s decision in United States v. Van Buren, which broadly interpreted the Computer Fraud and Abuse Act (CFAA), the main federal anti-hacking statute, as...more
On April 7, in Arkansas Teacher Retirement System, et al. v. Goldman Sachs Group, Inc., a Second Circuit panel declined to narrow the scope of the inflation-maintenance theory of securities fraud and split 2-1 in affirming...more
In a prior alert, we discussed Delaware Vice Chancellor J. Travis Laster’s Jan. 13, 2020, decision in Lebanon County Employees’ Retirement Fund v. AmerisourceBergen Corporation, a Section 220 books and records action brought...more
At the end of January, the U.S. Securities and Exchange’s Office of Compliance Inspections and Examinations (OCIE) released its “Observations on Cybersecurity and Resiliency Practices” (Observations)....more
2/13/2020
/ Best Practices ,
Bring Your Own Device (BYOD) ,
Business Continuity Plans ,
C-Suite Executives ,
Corporate Governance ,
Cybersecurity ,
Data Breach ,
Data Breach Plans ,
Data Loss Prevention ,
Data Management ,
Data Protection ,
Denial of Service Attacks ,
Disclosure Requirements ,
Incident Response Plans ,
Malware ,
Mobile Device Management ,
Mobile Devices ,
OCIE ,
Policies and Procedures ,
Popular ,
Ransomware ,
Regulatory Requirements ,
Risk Management ,
Securities and Exchange Commission (SEC) ,
Third-Party Liability ,
Vendors
In a 63-page decision issued on Jan. 13, 2020, in Lebanon County Employees’ Retirement Fund v. AmerisourceBergen Corporation, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery found that stockholders of...more
1/28/2020
/ Books & Records ,
Controlled Substances ,
Controlled Substances Act ,
Corporate Governance ,
DEA ,
Delaware General Corporation Law ,
Demand Letter ,
Depositions ,
Discovery ,
Drug & Alcohol Abuse ,
Drug Distribution ,
Enforcement Actions ,
Government Investigations ,
Inspection Rights ,
License Suspensions ,
Litigation Strategies ,
Opioid ,
Pain Management ,
Pharmaceutical Industry ,
Popular ,
Prescription Drugs ,
Rule 30(b)(6) ,
Sales & Distribution Agreements ,
Section 220 Request ,
Shareholder Litigation ,
Shareholders ,
Split of Authority
When Law No. 2016-1691 (Sapin II Law) created the convention judicaire d’intérêt public (CJIP), modeled after the American deferred prosecution agreement (DPA), it was feared that the existence of potentially dueling French...more
8/21/2019
/ AFA ,
Anti-Corruption ,
CJIP ,
Cooperation ,
Corporate Misconduct ,
Criminal Prosecution ,
Deferred Prosecution Agreements ,
France ,
Internal Investigations ,
Sapin II ,
Self-Reporting ,
White Collar Crimes
In a recent decision, the Delaware Court of Chancery ruled that the seller in a merger could enforce a provision in the merger agreement protecting its privilege over premerger emails with its counsel. Although pursuant to...more
On June 18, in Marchand v. Barnhill, the Delaware Supreme Court reversed a ruling by the Delaware Court of Chancery in a shareholder derivative suit alleging a breach of the duty of loyalty. While the standard for a...more
7/23/2019
/ Blue Bell Creameries ,
Breach of Duty ,
Caremark claim ,
DE Supreme Court ,
Derivative Suit ,
Derivatives ,
Duty of Loyalty ,
Food Contamination ,
Food Safety ,
Personal Liability ,
Shareholder Litigation
New York is gearing up to enact some of the toughest cybersecurity, privacy and data protection laws in the country. Modeled on the European Union’s General Data Protection Regulation (GDPR) and the California Consumer...more
7/18/2019
/ Biometric Information ,
California Consumer Privacy Act (CCPA) ,
Cybersecurity ,
Data Collection ,
Data Privacy ,
Data Protection ,
General Data Protection Regulation (GDPR) ,
Legislative Agendas ,
Notification Requirements ,
Pending Legislation ,
Personal Data ,
Personally Identifiable Information ,
SHIELD Act ,
State and Local Government ,
State Data Breach Notification Statutes
1. Binding Corporate Rules To Facilitate Intragroup Data Transfer -
Personal data is meant to circulate without boundaries inside the European Union (EU). The General Data Protection Regulation (GDPR) subjects personal...more
On April 30, 2019, Brian A. Benczkowski, the assistant attorney general for the Criminal Division of the United States Department of Justice, announced the release of an updated version of the Criminal Division’s guidance for...more
Until recently, whistleblowing raised many concerns in France and other European countries. Reporting on colleagues’ behavior, even if unlawful, was seen as risky business that could lead to dismissals and criminal sanctions...more
Evidence gathering differs greatly between common law and civil law jurisdictions. For example, while a U.S. judge may in many instances allow extensive pretrial discovery, a French judge would generally consider nearly any...more
4/5/2019
/ Blocking Statutes ,
CLOUD Act ,
CNIL ,
Cross-Border ,
Data Protection ,
Discovery ,
Evidence ,
Extraterritoriality Rules ,
France ,
General Data Protection Regulation (GDPR) ,
Hague Convention ,
Litigation Strategies ,
Regulatory Standards
In its 2011 Janus decision, the Supreme Court emphasized that SEC Rule 10b-5 imposes liability for a false statement in connection with a securities transaction only on the “maker” of the statement, the “person or entity with...more
4/3/2019
/ Appeals ,
Enforcement Actions ,
False Statements ,
Fines ,
Intent to Defraud ,
Investment Banks ,
Lorenzo v SEC ,
Material Dissemination ,
Misleading Statements ,
Reaffirmation ,
Rule 10b-5 ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Suspensions