The Tide Continues to Turn on the ESG Regulatory Front

by Steven A. Rosenblum, Adam O. Emmerich, David A. Katz, Andrew J. Nussbaum, Karessa L. Cain, John L. Robinson, Elina Tetelbaum and Allison Rabkin Golden

Photos of the authors

Top left to right: Steven A. Rosenblum, Adam O. Emmerich, David A. Katz and Andrew J. Nussbaum. Bottom left to right: Karessa L. Cain, John L. Robinson, Elina Tetelbaum and Allison Rabkin Golden (Photos courtesy of Wachtell, Lipton, Rosen & Katz).

Recently, there’s been a series of developments where regulators, major index funds, and proxy advisors took steps to diminish the role of environmental, social and governance (ESG) initiatives at public companies.

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Personal and Ephemeral Messaging Platforms: A Priority Target for Enforcement and Regulators.

by David Craig, Michael Koenig, and Mark Rosman

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Left to right: David Craig, Michael Koenig, and Mark Rosman (photos courtesy of Secretariat and Proskauer Rose)

In the not-too-distant past, professionals used email as their primary, if not their only, means of electronic communication. Texting was a futuristic novelty but also clumsy endeavor requiring between one and four button pushes on a small keypad to produce a single letter on an even smaller screen. It goes without saying, text messaging was ill-suited for rapid and substantive business communications. While a company’s employees occasionally sent work-related text messages for scheduling purposes, clear dividing lines generally existed between personal and professional communication. This made litigation holds and discovery relatively straight forward: discoverable business-related communications were in one bucket and non-discoverable personal communications were in another.

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When Does Caremark Have Teeth?

by Jennifer Arlen

Photo of the author

Photo courtesy of the author

Directors’ liability for corporate trauma stemming from their failure to carry out their duties to oversee and terminate corporate misconduct is a vital tool in the effort to deter corporate crime. Delaware’s Caremark doctrine imposes such duties and liability on directors but this liability is only effective when two conditions are met: First, the corporate trauma must result from a legal violation, as opposed to a business risk.  Second, the legal violation must constitute a “mission critical legal risk” (MCLR), as only then are directors subject to sufficiently specific and binding oversight duties to induce them to exert greater oversight over both compliance and suspected MCLR misconduct.[1]

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Explaining Credit Scores – The ECJ Rules on Automated Credit Assessments

by Katja Langenbucher and Kevin Bauer

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Left to right: Katja Langenbucher and Kevin Bauer (photos courtesy of authors)

A little over a year ago, the SCHUFA tightened the requirements for credit scoring under the EU GDPR. On February 27, the Court handed down further instructions on providing scored consumers with “meaningful information about the logic involved” as required by Art. 15(1)(h) of the GDPR.

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Cryptoasset Developments: Banking Regulators Reversing Anti-Crypto Stance

by Kevin S. Schwartz, David M. Adlerstein, and Ledina Gocaj

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Left to right: Kevin S. Schwartz, David M. Adlerstein, and Ledina Gocaj (photos courtesy of Wachtell, Lipton, Rosen & Katz)

In a significant shift, the Office of the Comptroller of the Currency (OCC) recently issued an interpretive letter empowering national banks to make their own business decisions related to cryptoasset products and services. The OCC guidance, which rescinds its prior-approval requirement for national banks to engage in cryptoasset activities, comes on the heels of an announcement that the FDIC is reassessing its own supervisory approach after disclosing “pause” letters that it had previously sent to 24 banks interested in crypto-related activities. Together, these developments signal an abrupt end to the bank regulators’ arbitrarily imposed ban on banks engaging in cryptoasset-related activities, an important step forward that we had endorsed.

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A New FTC Labor Task Force

by Bruce McCulloch, Justin Stewart-Teitelbaum, Nina Frant, Angela Landry, and Emily Abbott

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Left to right: Bruce McCulloch, Justin Stewart-Teitelbaum, Nina Frant, Angela Landry, and Emily Abbott (photos courtesy of Freshfields)

On February 24, 2025, Federal Trade Commission (“FTC”) Chairman Andrew Ferguson announced the creation of a new labor task force. The task force calls for the FTC’s Bureau of Competition, Bureau of Consumer Protection, Bureau of Economics, and Office of Policy Planning (“OPP”) to coordinate to investigate corporate labor practices that affect consumers. The task force was formally created via memorandum on February 26, 2025.

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Crippling the FCPA Is Bad Business for the U.S.

by Stephen M. Kohn

Photo courtesy of the author

On February 10, President Donald Trump issued an Executive Order (E.O.) to pause enforcement of the Foreign Corrupt Practices Act (FCPA). The E.O. is based upon the inaccurate premise that the United States’ enforcement of the anti-bribery law unfairly cracks down on U.S. companies and harms their competitiveness in the global marketplace. During the pause, the Justice Department will reevaluate the enforcement strategies behind the FCPA, and presumably approve a new approach to FCPA enforcement. But the intent behind the Executive Order does not bode well for future U.S. prosecutions of criminal bribe paying in foreign countries.

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Reflections from the 2025 ABA White Collar Crime Conference: Evaluating the Implications of the New Administration’s Enforcement Priorities

by Robertson Park

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Photo courtesy of Davis Wright Tremaine LLP

The 2025 ABA White Collar Crime Conference in Miami drew a large audience of more than 1,300 lawyers and another several hundred attending the evening’s events — and yet there was not a single DOJ representative. This reflects the amorphous and challenged state of DOJ leadership. I have not enough fingers to count the close generational friends and senior DOJ leaders who have been terminated, transferred, or forced out.  Natural questions about who is leading and where, and how they propose to get there were unanswered. The White-Collar Bar have become advocates for those who have been our foils. The “Regulators Speak” presentation reflected the fraught state of affairs. The new CFTC Director of Enforcement and the Acting SEC Associate Director of Enforcement spoke and certainly professed that while certain priorities may shift the fundamental effort to protect market integrity would continue, though the SEC representative confirmed that they will be abiding by the FCPA stand-down. This presentation was met by an individual audience member who took the microphone to cast a broadside against the new Administration.  

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For AI Innovators Seeking to Mitigate the Risks of Regulatory Uncertainty, It Pays to Remember the Fundamentals

by Charles V. Senatore

Photo of the author.

Photo courtesy of the author

For many years, regulatory uncertainty in the United States has been part of the landscape for innovators, particularly with the rise of emerging technologies such as cryptocurrencies, blockchain, and artificial intelligence.  It can, unfortunately, thwart the progress of responsible innovation and place our innovators at a competitive disadvantage. 

We recently have seen a dramatic example of regulatory uncertainty in the artificial intelligence space. 

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Children’s Online Privacy: Recent Actions by the States and the FTC

by Amber C. Thomson, Howard W. Waltzman, Kathryn Allen, and Megan P. Von Borstel

Photos of authors.

Amber C. Thomson, Howard W. Waltzman, Kathryn Allen, and Megan P. Von Borstel (Photos courtesy of Mayer Brown)

As the digital world becomes an integral part of children’s lives, state legislatures are placing greater emphasis on regulating how companies handle children’s personal information. This article explores the recent developments in state and federal children’s privacy legislation, examining how states are shaping the future of online safety for minors and shedding light on amendments to the federal Children’s Online Privacy Protection Act.

As social media companies and digital services providers increasingly cater to younger audiences, state legislatures are placing greater emphasis on regulating how companies handle children’s personal information. This Legal Update explores the recent developments in state and federal children’s privacy legislation, examining how states are shaping the future of online safety for minors and shedding light on amendments to the federal Children’s Online Privacy Protection Act (“COPPA”).

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