Farella Braun + Martel LLP

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Jessica Nall and Josh Malone discuss legal pitfalls, compliance issues, and the digital minefield that arises when employees use ephemeral messaging apps to conduct business in an article published by Bloomberg Law. Employees are using communication modes other than company e-mail to communicate for business—including texts and ephemeral messaging apps like WhatsApp or Telegram— which creates challenges for companies investigating potential wrongdoing within its ranks and for government investigators conducting parallel or follow-on inquiries. When business communications occur on platforms that companies do not control, there can sometimes be no way for them or the company or the government…
The Ninth Circuit recently heard an appeal that challenges a common tool of law enforcement: “f” letters. Under section 2703(f) of the Stored Communications Act, law enforcement may compel providers of “electronic communications services” (think Google) to preserve “records and other evidence” (think email) for a period of time. These preservation demands do not require any degree of suspicion, let alone probable cause, and are sent without judicial approval. Here’s a sample, provided by the Department of Justice:   Because the statute allows law enforcement to bypass judicial review, “f” letters are an increasingly popular avenue for obtaining digitally stored,…
In the ongoing legal battle over the alleged theft of American trade secrets by Chinese telecom giant Huawei, one curious aspect is the lack of charges filed against any individual Huawei employees. On February 28, Huawei pled not guilty to charges of trade secret theft in federal court in Washington. This has been one of the most publicized trade secret cases since the DOJ announced the China Initiative in November 2018, prioritizing the quick and effective identification and prosecution of trade secret cases related to alleged Chinese theft of American intellectual property. In January, Huawei was indicted for theft of…
Two United States congressmen introduced legislation in late December that would exclude certain digital currencies from being defined as securities – a bill that, if enacted, may finally provide the cryptocurrency industry with regulatory clarity regarding when the offer and sale of digital tokens must comply with federal securities laws. The Token Taxonomy Act of 2018 – introduced on December 20, 2018 by Reps. Warren Davidson (R-Ohio) and Darren Soto (D-Florida) – would, among other things, amend the Securities Act of 1933 and the Securities Exchange Act of 1934 to exclude “digital tokens from the definition of a security,” as…
The attorney-client privilege, which prohibits the compelled disclosure of confidential communications between an attorney and their client, is enshrined in common law and statutory codes across the country. See, e.g., Cal. Evid. Code § 950 et seq.; Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (the fundamental purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice”). The long-standing recognition of this privilege reflects the policy decision that the encouragement of candor between lawyers and clients…
New cryptocurrencies and tokens have been popping up all over the place, leading the SEC to set up an initial coin offering (ICO) section on its website and to promote recent enforcement actions in the digital currency space. The proliferation of new tokens offers a growing opportunity for cross-over and cooperation between different federal agencies. The SEC representative at a recent Bar Association of San Francisco panel last week noted that the SEC’s cyber unit is currently looking at dozens of new cryptocurrency or crypto market enforcement actions, including quite a few with the local U.S. Attorney’s office where fraud…
It always comes when you least expect it – a government inquiry to investigate your business. While it may instill a sense of panic, there are steps you can take to make sure you’re in the best position possible when the investigation begins. This blog series developed by Chrysty Esperanza, Litigation Counsel at Square, Inc., will address this main question: When you receive a subpoena, CID, or informal request from the government, how should you respond? Cooperation and Voluntary Disclosure Issues – Benefits + Risks of Self Reporting The Foreign Corrupt Policies Act (FCPA) unit at the DOJ recently enacted its…
It always comes when you least expect it – a government inquiry to investigate your business. While it may instill a sense of panic, there are steps you can take to make sure you’re in the best position possible when the investigation begins. This blog series by Chrysty Esperanza, Litigation Counsel at Square, Inc., will address this main question: When you receive a subpoena, CID, or informal request from the government, how should you respond? When Civil and Criminal Investigations Collide Civil and criminal investigations are not as separate as you may think, and it is quite possible they…
It always comes when you least expect it – a government inquiry to investigate your business. While it may instill a sense of panic, there are steps you can take to make sure you’re in the best position possible when the investigation begins. This blog series developed by Chrysty Esperanza, Litigation Counsel at Square, Inc., will address this main question: When you receive a subpoena, CID, or informal request from the government, how should you respond? How do you find the right lawyer to conduct an internal investigation? When an issue arises that requires an internal investigation, determining who…
At a recent panel organized by San Francisco’s Federal Bar Association, the San Francisco Regional Director of the Securities and Exchange Commission (SEC), Jina Choi, confirmed that the agency continues to focus on investor fraud in the pre-IPO private market space. Highlighting enforcement actions against the non-public Zenefits, Credit Karma, and Theranos[1], Ms. Choi reiterated the SEC’s commitment to aggressive oversight over “unicorns,” or privately-held companies valued over $1 billion. The SEC first announced its intent to step up enforcement in this space in a March 2016 speech by previous SEC Chairwoman Mary Jo White,…