Author Archives: fjf4471

Staffing Up: Antitrust Regulators Around the World Step up Digital Platform and Technology Enforcement

by Aymeric De Moncuit, Rachel J. Lamorte, Daniel Vowden, Stephen V. Groh, Ora Nwabueze, and Sarah Wilks

Photos of the authors

Top left to right: Aymeric De Moncuit, Rachel J. Lamorte and Daniel Vowden. Bottom left to right: Stephen V. Groh, Ora Nwabueze and Sarah Wilks. (Photos courtesy of Mayer Brown)

At a Glance

In February, the Japan Fair Trade Commission announced that it will hire additional staff to enforce the country’s new Act on Promotion of Competition for Specified Smartphone Software. The Act “aim[s] to foster innovation and expand options for consumers through ensuring a fair and competitive environment in the digital field,” and is a recent example of worldwide competition enforcers’ focus on digital platforms and technology. We consider how enforcers across the world have staffed up to enforce similar legislation.

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2024 Year in Review: Data Breach Litigation

by Kirk Nahra, Molly Jennings, Ali Jessani, and Rachel Greene

Photos of the authors

Left to Right: Kirk Nahra, Molly Jennings, Ali Jessani and Rachel Greene. (Photos courtesy of WilmerHale)

One of the main risks for a company in the event of a data breach is the threat of litigation. Data breach litigation continued to proliferate in 2024, as it has in prior years.

In the past year, plaintiffs continued to seek relief following data breaches under state common-law doctrines, and the Alabama Supreme Court joined the other state courts of last resort who have addressed data-breach litigation in published decisions.  Federal data breach plaintiffs contended with standing issues in the wake of the Supreme Court’s decision in TransUnion LLC v. Ramirez, and an apparent circuit split between the Tenth and Eleventh Circuits deepened when the Third Circuit weighed in.  The District of New Jersey also provided further guidance to companies on the scope of the attorney-client privilege when responding to data breaches.  This post examines these trends.  

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President Trump Issues “America First Investment Policy” Presidential Memorandum

by Jeffrey P. Bialos, Ginger T. Faulk,  Mark D. Herlach, and Nicholas T. Hillman

Photos of the Authors.

From left to right: Jeffrey P. Bialos, Ginger T. Faulk, Mark D. Herlach, and Nicholas T. Hillman. Photos courtesy from Eversheds Sutherland.

On February 21, 2025, President Trump issued a memorandum titled “America First Investment Policy” (the “Investment Memo” or “Memo”), in which the President aims to modify the U.S. Government’s approach to inbound and outbound foreign investment to address national security threats.

The Investment Memo reconfirms the United States’ longstanding commitment to open investment to encourage domestic development of key advanced technologies and takes steps to streamline investments by trusted allies and partners.  Among other things, it seeks to establish the “fast tracking” of certain investment and environmental reviews and seeks to minimize the use of “open ended” mitigation agreements.

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President Trump Imposes Additional Tariffs on China, Delays Tariffs on Canada and Mexico

by Chase D. Kaniecki, Catherine Johnson, and Alexi T. Stocker

Photos of the authors

Chase D. Kaniecki and Alexi T. Stocker. Not pictured: Catherine Johnson. (Photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

On February 1, President Trump issued executive orders imposing sweeping tariffs on products of Canadian, Mexican, and Chinese origin pursuant to his authority under the International Emergency Economic Powers Act, 50 U.S.C. 1701, et seq. (IEEPA), after expanding previously-declared national emergencies to respond to the “extraordinary threat posed by illegal aliens and drugs, including deadly fentanyl.”  

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Implications of Pausing FCPA Enforcement

by Kevin E. Davis

Photo of the Author

Photo courtesy of NYU School of Law.

On Monday February 10, 2025, President Trump issued an Executive Order (the “Order”) “pausing” enforcement of the Foreign Corrupt Practices Act (FCPA), citing its overly expansive and unpredictable enforcement as well as its adverse effects on the competitiveness of American companies. On the same day, the acting Deputy Attorney General of the Department of Justice ordered prosecutors in New York to dismiss pending campaign finance and bribery charges against New York City Mayor Eric Adams in part because of the Mayor’s support for the President’s policies on immigration.

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Human Input Necessary for Copyrightability of Works Created with Artificial Intelligence

by Brian W. Nolan and Megan P. Fitzgerald

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Brian W. Nolan and Megan P. Fitzgerald (Photos courtesy of the authors)

Last week, the United States Copyright Office (“USCO”) released its long-anticipated report on the copyrightability of works created with the aid of artificial intelligence (“AI”). The report did not break new ground by recommending updated legislation or providing an objective bright-line test to determine the copyrightability of works created with AI. Instead, the USCO reaffirmed its position that, consistent with established principles of copyright law, some level of human involvement is necessary for a work created with AI to be eligible for copyright protection.

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Key Considerations for Updating 2024 Annual Report Risk Factors

by Maia Gez, Scott Levi, Michelle Rutta, Melinda Anderson, and Danielle Herrick

Photos of the Authors.

Left to Right: Maia Gez, Scott Levi, Michelle Rutta, Melinda Anderson, and Danielle Herrick. (Photos courtesy of White & Case LLP)

With the 2025 annual reporting season upon us, public companies should consider potential updates to their risk factors for their Form 10-Ks and 20-Fs in light of recent economic, political, technological, and regulatory developments.[1]

As a starting point, this alert features (i) a list of key developments that US public companies should consider as they update risk factors in Part I and (ii) critical drafting considerations in Part II. Each company will, of course, need to assess its own material risks and tailor its risk factor disclosure to its particular circumstances.

As further described below, calendar year-end companies should review and update their risk factors by assessing the material risks that impact their businesses. Well-drafted risk factors play a crucial role in defending public companies against allegations of fraud under the US federal securities laws, and companies should therefore take the time to update their risk factor disclosure and tailor risks to their own facts and circumstances.

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District Court Rules BlackRock’s Inclusion as 401(k) Investment Manager Breaches Company’s ERISA Duty of Loyalty

by Martin Lipton, David A. Katz, and Elina Tetelbaum

Photos of the authors

Left to Right: Martin Lipton, David A. Katz and Elina Tetelbaum. (Photos Courtesy of Watchell, Lipton, Rosen & Katz)

The District Court for the Northern District of Texas recently ruled that a company breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”) for permitting BlackRock’s inclusion as an investment manager of its employees’ retirement assets in a 401(k) Plan. After a four-day bench trial, the Court found that the company failed to “loyally act solely in the retirement plan’s best financial interests by allowing their corporate interests, as well as BlackRock’s ESG interests, to influence management of the plan.”   

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SEC Enforcement Year-End Overview

by Joel Cohen, Ladan Stewart, Tami Stark, Marietou Diouf, Gabriella Klein, and Robert DeNault

Photos of the authors.

Top (Left to Right): Joel M. Cohen, Ladan Stewart and Tami Stark. Bottom (Left to Right): Marietou Diouf, Gabriella Klein, and Robert DeNault. (Photos courtesy of White & Case LLP)

Introduction

2024 marks the final year of Gary Gensler’s term as Chair of the U.S. Securities and Exchange Commission (“SEC”).  The Gensler SEC has been aggressive on both the enforcement and rulemaking fronts.  In response, the financial industry has fought back in sometimes unprecedented ways, including through legal challenges to the SEC’s rulemaking and enforcement programs.  While questions remain about what the SEC will prioritize under the leadership of presumptive incoming Chair Paul Atkins, it seems likely that many of Chair Gensler’s enforcement priorities will be rolled back in the coming years.  We can expect, for example, to have neared the end of the SEC’s years-long off-channel communications sweep.  And the Gensler SEC’s intense focus on the crypto industry will very likely shift significantly under Chair Atkins.

We provide here an overview of the SEC’s enforcement program in 2024 and end with additional thoughts on how the agency’s enforcement priorities will likely change in 2025 and beyond. 

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Defense Department Unveils Final Rule for CMMC 2.0 Program: The Time Is Now for Defense Contractors To Get Compliant

by Beth Burgin Waller, Anthony Mazzeo, and Patrick Austin

Photos of the authors

Left to right: Beth Burgin Waller, Anthony Mazzeo, and Patrick Austin. (photos courtesy of authors)

If you work for a defense contractor or subcontractor responsible for handling controlled unclassified information (CUI) and/or federal contract information (FCI), the U.S. Department of Defense posted the final rule for the highly anticipated Cybersecurity Maturity Model Certification 2.0 program (CMMC 2.0 or the Final Rule).  Issuance of the Final Rule (full text available here in PDF format) likely means DoD will begin implementing new, stringent cybersecurity standards for defense contractors at some point in early-to-mid 2025.   

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