Don't Count Your Chickens
The U.S. Court of Appeals for the Ninth Circuit has broadly interpreted the Computer Fraud and fAbuse Act (CFAA), 18 U.S.C. § 1030(a)(4). The court reversedthe district court's dismissal of an indictment that charged a firm's former employee with conspiring to violate the CFAA by having current employees send information to him. The Ninth Circuit held that "an employee 'exceeds authorized access' under § 1030(a)(4) when he or she violates the employer's computer access restrictions--including use restrictions." But that ruling has been vacated because the court decidedto hear the case en banc on December 15, 2011.
Skilling Alone Can't Keep
The Second Circuit heldthat the honest-services-fraud conviction of former New York State Senate Majority Leader Joseph L. Bruno should be vacated in light of United States v. Skilling. But that was a Pyrrhic victory because Mr. Bruno now faces a retrial.
A Lawyer's "Privilege" to Produce
The First Circuit rejecteda series of arguments from the client of an attorney who received a grand-jury subpoena for the client's records. The client tried to avoid production by making every conceivable argument that the documents were privileged, but the First Circuit disagreed with them all.
Mo' Money, Mo' Years in the Hoosegow ... Sometimes
Assistant Attorney General Lanny A. Breuer addressed sentencing disparities, including white-collar sentencing disparities, in a recent speech. He noted that "[w]ith increasing frequency, federal judges have been sentencing fraud offenders--especially offenders involved in high-loss fraud cases--inconsistently." He continued that "a defendant in one district may be sentenced to one or two years in prison for causing hundreds of millions of dollars in losses, while a defendant in another district is sentenced to ten or 20 years in prison for causing much smaller losses."
The SEC shook up its reporting structure by issuing a final ruleto make the Office of the Ethics Counsel a stand-alone office that reports to the chairman of the commission instead of its general counsel. This change reflects the recommendationof the SEC's Office of the Inspector General in light of the purported conflict of interest between the SEC's former general counsel and the Madoff-related investigations by the agency.
Blowing the Whistle Loud and (Not Necessarily) Often
The SEC also reportedit received a total of 334 tips from individuals in 37 states and foreign countries in the seven weeks since the creation of the Office of the Whistleblower.
Add Forfeiture to the Inevitability of Death and Taxes
The Ninth Circuit heldthat if an indictment properly includes forfeiture allegations for an offense that authorizes criminal forfeiture, the sentencing court must impose forfeiture of the proceeds of the crime. As the court explained, "[c]riminal forfeiture is separate from the discretionary sentencing considerations under 18 U.S.C. § 3551." The court also noted that "[c]riminal forfeiture is also separate from restitution, which serves an entirely different purpose"; a district court is empowered to impose both.
Corporate Officers Take Heed
The U.S. District Court for the Eastern District of Pennsylvania imposed jail sentences on three officers of a medical-device company who had pleaded guilty to misdemeanor offenses under the controversial corporate-officer doctrine, which can hold executives criminally liable for failing to prevent or promptly correct certain corporate violations. According to the press releasefrom the U.S. Attorney's Office for the Eastern District of Pennsylvania, which prosecuted the case, "[t]he Department of Justice is committed to holding individual corporate officers accountable for their criminal conduct."
Best Government-Report Title Ever
The Office of the National Counterintelligence Executive issued its biennial report, titled "Foreign Spies Stealing US Economic Secrets in Cyberspace," to Congress. The report noted that "[t]he proliferation of malicious software, prevalence of cyber tool sharing, use of hackers as proxies, and routing of operations through third countries make it difficult to attribute responsibility for computer network intrusions." The report includes "Best Practices in Data Protection Strategies," which are worth a look.
On February 5, partners Dan Wenner and Jed Davis will present a webinar, "Cybersecurity Incident Report: Applying Reason And Rigor To Control Chaos," produced by PLAC (formerly the Product Liability Advisory Council).
Day Pitney Newsletter
Day Pitney Newsletter
Day Pitney sponsored a program, "Parade of Corporate Horribles: Responding Ethically to a New Problem Around Every Corner," presented by the Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel (ACC).
Day Pitney Newsletter
Washington, D.C.-based counsel Steven Cash was quoted in an article, "Mueller Fuels Foreign Lobbying Crackdown," published by The Hill.
Stan Twardy was quoted in an analysis article, "Follow the Leader? Courtesy and the Rule of Law in the Age of Trump," published by the Connecticut Law Tribune.
Day Pitney counsel Steven Cash was quoted in an article, "Cohen Saga Reaches Dramatic Climax in Federal Court," published by The Hill.
Stan Twardy appeared live on the RNN-TV program "Richard French Live," a nightly news talk show.
Jed Davis was quoted in an article, "Marriott Hack Shows Risks Of Lax Cyber Diligence In Mergers," published by Law360.