D.C. Circuit Court of Appeals Judge and Supreme Court nominee Brett Kavanaugh proves a staunch defender of attorney-client privilege for companies. In FTC v. Boehringer Ingelheim Pharms., Inc., one of his final opinions before stepping away from casework because of his Supreme Court nomination, Judge Kavanaugh solidified his stance taken in the 2014 case In re Kellogg Brown & Root, Inc. Continue Reading
The U.S. Supreme Court has adopted three amendments to the Federal Rules of Criminal Procedure (“Rules”). They affect Rule 12.4 (Disclosure Statement), Rule 45 (Computing and Extending Time), and Rule 49 (Serving and Filing Papers). The changes do not reflect particularly large shifts in criminal procedure, but attorneys should be aware of them since, as any good litigator knows, a failure to follow proper procedures can severely prejudice a client.
The Court transmitted these amendments to Congress in April. They will take effect on December 1 this year, assuming Congress does not enact legislation that rejects, modifies, or defers the proposed rules. The new Rules will govern in all proceedings commenced after that date, and, “insofar as just and practicable, all proceedings then pending.”
Tariffs are not the only weapon of retaliation countries may wield in a trade war. Governments can pressure trade adversaries at the bargaining table by opening other fronts, such as limiting foreign investment, halting drug enforcement cooperation, or, of particular concern to the corporate world, scrutinizing companies doing business within their jurisdictions. What does this mean?
The Department of Justice released new Enforcement Policy for the Foreign Corrupt Practices Act (FCPA). The revisions include a new provision that many believe impairs the use of instant messaging software and other third-party messaging apps by employees. In order to receive a declination and full credit for cooperating with investigators under the Enforcement Policy, U.S. companies must appropriately retain business records by “prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications.”
In Carpenter v. United States, the Supreme Court protected cell site location data. Now “the Government must generally obtain a warrant supported by probable cause before acquiring such records.” Read here about the decision and its implications for organizations, particularly technology providers. The article is written by Squire Patton Boggs attorneys Tara Swaminatha, Robin Campbell, Tom Zeno, and Katy Spicer.
South Africa’s regulator, the Financial Intelligence Centre (“FIC”), oversees receipt and analysis of financial intelligence as well as its dissemination. FIC recently released a booklet that provides “insight on some of the methods criminals use to abuse the financial system.” The booklet provides nine different case studies, including one about rhinoceros poaching.
At the end of June, Attorney General Sessions revealed the largest number of defendants ever charged for healthcare fraud. Read here for a summary of the number of individuals, the types of charges, and the agencies involved.
Even the best laid plan for data security requires follow through. A cancer center was penalized $4.3 million by the government for failing to complete its encryption plan for devices. The decision is instructive even for companies not specifically required to protect data under government regulation. Tom Zeno and Elliot Golding of Squire Patton Boggs discuss the case and its lesson. Go here for the article.
Last week, the United States Supreme Court settled a circuit split regarding the constitutionality of the appointment of Administrative Law Judges (“ALJs”) by the Securities and Exchange Commission (“SEC” or the “Commission”). In Lucia v. SEC, the Court held that the Commission’s five ALJs are “officers” subject to the Constitution’s Appointments Clause, which requires officers to be appointed by the President, “Courts of Law,” or “Heads of Departments.” And because the SEC’s ALJs were hired by the agency’s staff, the Court reasoned, their appointments were unconstitutional. The SEC reacted quickly, immediately issuing an order staying all pending administrative proceedings, the constitutionality of which is now unclear.
The Supreme Court allows routine border searches because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” Some level of suspicion is required only when a search infringes the dignity and privacy interest of the persons being searched. Circuits are now split about whether reasonable suspicion is needed to justify a forensic search of information stored on an electronic device. Continue Reading