Publications Feed Publications Description Client Alert: Can the UK’s Serious Fraud Office (SFO) Compel Documents from Companies When Those Documents Are Located Outside the UK? <p> On 5 February 2021, the Supreme Court overturned the Divisional Court and found that the SFO was unable to use its powers under section 2(3) of the Criminal Justice Act 1987 to compel a foreign company to produce documents located outside the UK.</p> <p> To view the full alert, click <a href="" target="_blank">here</a>.&nbsp;</p> 8 Feb 2021 Client Alert: Virginia Set to Become Latest State to Enact Comprehensive Consumer Privacy Law <p> Having passed major hurdles in both the state house and senate, Virginia’s Consumer Data Protection Act (CDPA) is poised to become law. If enacted, the CDPA will become effective January 1, 2023, the same date the remaining portions of California’s Consumer Privacy Rights Act (CPRA) come online. While much of the CDPA tracks the CPRA, there are meaningful differences between the two bills, and CDPA will require companies covered by the new law to implement changes both to their public privacy policies as well as to internal processes.</p> <p> To read more, please click <a href="">here</a>.</p> 8 Feb 2021 "Six Best Practices in Corporate Human Rights and Social Responsibility," <i>Corporate Counsel</i> <p> With the Biden administration’s emphasis on human rights and the upcoming 10th anniversary of the UN Guiding Principles on Business and Human Rights, corporate social responsibility is an issue of increasing focus and prominence.</p> <p> A patchwork of laws and policies lays the groundwork for US government enforcement in this space. Section 307 of the Tariff Act of 1930 prohibits the importation of merchandise wholly or partially mined, produced, or manufactured in any foreign country by forced or indentured labor. Such merchandise is subject to exclusion from the United States and seizure, and may subject the importer to criminal investigation. Section 321(b) of the Countering America’s Adversaries Through Sanctions Act creates a specific presumption under the Tariff Act that certain items manufactured anywhere in the world by North Korean nationals are prohibited forced labor goods. Separately, recent seizures under the Tariff Act, sanctions designations under the Global Magnitsky Act, Department of Commerce Entity List designations, and an interagency advisory notice issued last summer highlight the US government’s particular focus on forced labor in the Xinjiang autonomous region of China.</p> <p> To read the full article please click <a href="" target="_blank">here</a>.&nbsp;</p> <p> This article originally published in <em>Corporate Counsel. </em>Please click <a href="" target="_blank">here</a> to read the original article.&nbsp;</p> 8 Feb 2021 Client Alert: The Key Open Questions That Will Determine the Next Four Years of SEC Enforcement <p> As President Biden’s administration gets into full swing, many expect future Chairman Gary Gensler’s SEC to take a more aggressive approach to enforcement. Public companies and other market participants are left wondering what, exactly, that means. In this client alert, we take a detailed look at where the SEC is starting from, what has happened since January 20th, where it goes from here, and what interested parties should be watching for as the “new” SEC ramps up.</p> <p> New York University School of Law’s Program on Corporate Compliance and Enforcement republished the alert on its <a href="">blog</a>.</p> <p> To view the full alert, click <a href="" target="_blank">here</a>.&nbsp;</p> 12 Feb 2021 “No Judge Is an Island,” <i></i> <p> In this column, Jenner &amp; Block Partner <a href="">Michael T. Brody</a> observes that recent Seventh Circuit decisions reveal that courts “may follow a particular percolating issue, coordinate their decisions, and release opinions to address recurring issues or to clarify the law of the circuit.” In particular, he highlights a series of decisions relating to Article III standing to sue under the Fair Debt Collection Practices Act. “These cases poke a hole in the view of judges as independent actors toiling in isolation and issuing stand-alone opinions,” Mr. Brody writes. “Instead, in this coordinated series of cases, nine of the court’s members issued or joined opinions addressing a legal issue that is destined to recur in litigation before the court.”</p> 10 Feb 2021 “Federal Preemption of State Taxes Burdening Indian Lands,” <i>Tax Notes State</i> <p> In his <a href="">column</a>, Jenner &amp; Block Partner <a href="">Sam Hirsch</a> examines the question of whether a non-Indian who leases Indian land is liable for state taxes. “The best reading of the judicial precedents, which comport with fundamental principles of federal Indian law, is that state or local taxes on those leasehold interests, permanent improvements, and income streams are preempted by federal law and thus invalid,” Mr. Hirsch observes. “But too often, the courts get this wrong. It is time for Congress to step in and clarify the law.”</p> 15 Feb 2021 "Biden Administration Confirms COVID-19 Liability Protections for Federal Contractors, Employees and Volunteers," <i>Corporate Environmental Lawyer</i> <p> On February 16, 2021, Acting Secretary of the US Department of Health &amp; Human Services (HHS) Norris Cochran, published in the Federal Register <a href="">the Sixth Amendment to the Declaration</a> Under the Public Readiness and Emergency Act [PREP Act]. 86 Fed. Reg. 9516-9520 (Feb. 16, 2021). This is the second amendment to the Declaration issued since President Biden took office and continues the Trump Administration’s practice of providing broad liability protection for those responding to COVID-19.</p> <p> To read more, please click <a href="">here</a>.</p> 16 Feb 2021 "EPA Approves Additional Pesticide Products to Use as COVID-19 Disinfectants," <i>Corporate Environmental Lawyer</i> <p> US EPA recently has approved two new products for use on surfaces in the battle to kill SARS-CoV-2, the virus that causes COVID-19.</p> <p> On February 10, 2021, EPA announced that it had approved a copper alloy product, made of at least 95.6 % copper, as a product that kills the virus upon contact. Thus, all products containing the copper alloy product can be sold as providing long-term disinfection against the virus. Specifically, EPA’s approved use on surfaces of the copper alloy product registered to the Copper Development Association (CDA) [EPA Reg. No. 82012 1]. CDA’s registration had previously been approved under the Federal Insecticide, Fungicide &amp; Rodenticide Act (FIFRA), for more than a decade, albeit for other purposes. Products using the approved antimicrobial copper alloys will be added to EPA’s List N appendix of supplemental antimicrobial products that can be used to kill SARS CoV 2 virus particles that contact surfaces treated with the copper alloys.</p> <p> To read more, please click <a href="">here</a>.</p> 16 Feb 2021 “5 Ways Gov't Contractors Can Manage Schedule Change Risk,” <i>Law360</i> <p> In this <a href="">article</a>, Partner <a href="">Matthew L. Haws</a> and co-authors Sashi Mahtani and Jonathan Rice from Breakwater Forensics LLC offer project schedule management tips for government contractors during challenging, uncertain times. “Now more than ever, contractors want to efficiently identify the impact of unexpected events on planned work,” the authors observe.</p> 17 Feb 2021 Client Alert: Simplifying Your Form 10-K: Survey Information on Companies Removing Selected Financial Data <p> On November 19, 2020, the Securities and Exchange Commission issued rules that significantly changed Items 301, 302, and 303 of Regulation S-K. As we noted in our 2021 Annual Reporting and Proxy Guide, public companies could early adopt the changes to Items 301, 302, and 303 for reports filed on or after February 10, 2021, but only if the company adopted the entire amended item.</p> <p> In particular, Item 301 of Regulation S-K, which provides for the presentation of five years of selected financial data in Form 10-K, was a potential item for early adoption. Companies could entirely eliminate the Item 301 disclosure in their Form 10-K if they elected for early adoption.</p> <p> To read the full article, please click <a href="">here</a>.</p> 19 Feb 2021 "Litigation Rulemaking,” <i>Yale Law Journal</i>, Vol. 127 <p> To read Litigation Rulemaking in the <em>Yale Law Journal</em>, please click <a href="">here</a>.</p> 19 Feb 2021 “The ‘Supreme Board of Sign Review’: Reed and Its Aftermath,” <i>Yale Law Journal Forum</i>, Vol. 125 <p> To read&nbsp;“The ‘Supreme Board of Sign Review’: Reed and Its Aftermath” in the <em>Yale Law Journal</em>, please click <a href="">here</a>.</p> 19 Feb 2021 Client Alert: European Commission Publishes Draft UK Adequacy Decisions <p> Following the UK’s exit from the EU, for data protection purposes, the UK is now a “third country”. Pursuant to the trade deal between the UK and EU, agreed to at the end of 2020, data transfers between the EU and UK were allowed to flow freely for up to a further six months to 30 June 2021. However, after that date, any personal data sent from the EU to the UK would need to be adequately protected in compliance with the EU General Data Protection Regulation (EU GDPR) and the EU Law Enforcement Directive (EU LED).&nbsp;</p> <p> To view the full alert, click <a href="" target="_blank">here</a>.&nbsp;</p> 22 Feb 2021 "Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model" <p> On July 2020, <a href="">we reported</a> that Virginia, an OSHA State-plan State, was the first in the country to issue a workplace safety regulation specifically addressing COVID-19. At that time, the Virginia standard was issued as a temporary emergency rule, which would expire by January 27, 2021, unless made permanent. On the expiration date, Governor Northam formally approved a revised version of the temporary emergency rule, 16VAC25-220, “Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19,” applicable to all regulated workplaces in the Commonwealth (the <a href="">Permanent Standard</a>). Although described as permanent, by its own terms, within 14 days of the expiration of the Governor’s temporary declaration for the COVID-19 pandemic, the Virginia Department of Labor and Industry’s Safety and Health Codes Board must meet to determine whether there remains an ongoing need for the COVD-19 workplace safety regulation. § 20B. The Permanent Standard is immediately effective, except that the program documentation and training requirements go into effect on March 26, 2021. The Permanent Standard will be enforced by the Department of Labor and Industry, which operates the Virginia State Plan for Occupational Safety and Health (VOSH).</p> <p> To read the full article, please click <a href="">here</a>.</p> 23 Feb 2021 Client Alert: Recent Storm Disruptions of the Energy Sector – Possible Investigations and Regulatory Actions <p> The unprecedented winter storm and icy temperatures that struck the southwest have overwhelmed portions of our bulk power system. Millions of Americans in Texas and other states ranging from the Dakotas to Kentucky and Alabama whose bulk power systems are managed by the Electric Reliability Council of Texas, the Southwest Power Pool, and the Midcontinent Independent System Operator are experiencing widespread and prolonged blackouts. Thermal and renewable generators became inoperable, gas supplies tightened, and prices and load, spurred by heating demand, spiked to record levels. At the state and national level, governments swiftly announced intention to investigate and prevent a recurrence. The Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC) announced on Tuesday a joint inquiry into the readiness and performance of the bulk-power system and its generators. And, in Texas, Governor Abbott quickly called for state legislative and regulatory investigations and action.</p> <p> To read the full article, please click <a href="">here</a>.</p> 23 Feb 2021 “The #MeToo Movement Migrates to M&A Boilerplate,” <i>The Yale Law Journal</i>, Vol. 129, No.2, Nov. 2019 23 Feb 2021 “Document Productions in SEC Investigations,” in <i>SEC Compliance and Enforcement Answer Book 2021 Edition</i> <p> Jenner &amp; Block Partner <a href="">Thomas C. Newkirk</a> co-authored a chapter about responding to document requests and demands in US Securities and Exchange Commission investigations in PLI’s <em>SEC Compliance and Enforcement Answer Book 2021 Edition. </em>According to PLI, the book “provides essential insight into the practices and procedures of the&nbsp;SEC&nbsp;and provides sophisticated insight on the complex and extensive body of federal securities laws.” Mr. Newkirk is a partner in the firm’s Securities Litigation and Enforcement Practice. His experience includes 19 years as a senior official with the SEC. He co-authored the chapter with former firm partner Michael Lowman.</p> 24 Feb 2021 <i>Illinois Civil Practice Guide</i>, Jenner & Block Practice Series <p> The 2021 edition of the firm’s <em>Illinois Civil Practice Guide</em> provides comprehensive guidance on Illinois civil rules and procedures. This edition has been updated to address new Illinois Supreme Court rules, case developments and questions raised by practitioners throughout 2020-21. This year, the authors include a companion piece regarding court orders and rule changes made in response to the pandemic. Please feel free to share a PDF of the <a href="">Guide</a>, and the <a href="">COVID-19 companion guide</a>&nbsp;or email <a href=""></a> for hard copies.</p> <p> The publication is co-authored by Partner <a href="">Andrew W. Vail</a> and Associates <a href="">Kevin J. Murphy</a>, <a href="">Elpitha B. Lambros</a> and <a href="">Henry A. Leaman</a>.</p> 24 Feb 2021 Client Alert: Real Estate Litigation and Counseling Newsletter - March 2021 <p> On behalf of Jenner &amp; Block’s Real Estate Litigation and Counseling Group, we are pleased to present this newsletter, which is designed to inform lawyers and business leaders about key legal developments affecting REITs, developers, brokers, investors, contractors, tenants, and other real estate industry participants. In this edition, we cover the following topics:</p> <ul> <li> <strong>COVID-19 Lease Disputes</strong>: Courts refuse to exempt tenants from rent obligations based on common law and contractual defenses raised by tenants</li> <li> <strong>Landlords and Tenants</strong>: Third Circuit overturns dismissal of Landlord’s allegations of fraud by Tenant</li> <li> <strong>Purchasers and Sellers</strong>: Delaware Chancery permits purchaser of $5.8 billion hotel portfolio to back out of deal where hotel operations changed in light of pandemic</li> <li> <strong>Lenders and Borrowers</strong>: Illinois Appellate Court holds LLC responsible for $120 million guaranty of construction financing</li> </ul> <p> We also provide a summary of the current commercial foreclosure and eviction moratoria.</p> <p> To read the full newsletter, please click <a href="">here</a>.</p> 1 Mar 2021 Client Alert: Three Key Takeaways from the DOJ Fraud Section’s 2020 Annual Report <p> Last week, the Fraud Section, part of the US Department of Justice (DOJ) Criminal Division, released its annual year-in-review report. In this article, we highlight three key takeaways from the 2020 report.</p> <p> The Fraud Section is an integral part of DOJ’s efforts to investigate and prosecute complex white-collar crimes, particularly large national and international corporate cases. It also has exclusive jurisdiction and oversight of all Foreign Corrupt Practices Act (FCPA) matters. The Fraud Section’s annual report, begun in 2015, is a look at the past year, and typically it is also a harbinger of the Fraud Section’s goals and priorities for the coming year. But the recent change in administration—and with it, possible changes in white-collar priorities and resources—lends an element of uncertainty as to what we can expect in 2021.</p> <p> The report details significant cases from 2020, including corporate resolutions, trials, guilty pleas, and initiatives, from across the Fraud Section’s three litigating units: the FCPA Unit, the Health Care Fraud Unit, and the Market Integrity and Major Frauds Unit. It provides a helpful statistical breakdown of individual prosecutions and corporate resolutions.</p> <p> To read the full article, including the three key takeaways, please click <a href="">here</a>.</p> 1 Mar 2021 "Guide to COVID-19 Workplace Safety Regulation in Four State-Plan States" <p> US OSHA currently has several well-established regulations that apply to aspects of workplace protection that also apply to certain workplaces operating during the pandemic. For example, OSHA’s PPE and respiratory standards would apply particularly to work in hospitals and those in direct contact with people or bodies known to be infected by COVID-19. <em>See, e.g.</em>, 29 CFR 1910.132, 1910.133, 1910.134. OSHA’s illness recordkeeping standard applies to workplaces otherwise required to do that recordkeeping (29 CFR 1904.2(a)), and all workplaces are required to report to OSHA work-related cases that result in hospitalization or death within 24 hours of a workplace exposure (<em>see</em> fn 9). The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act, 29 USC 654(a)(1), requires each employer to furnish to each worker “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). Yet, the General Duty Clause does not provide clear direction on what an employer must do at the workplace, and enforcement by OSHA during the pandemic under the General Duty Clause can be difficult in all but the most egregious cases.&nbsp;</p> <p> To read the full article, please click <a href="">here</a>.</p> 3 Mar 2021 Client Alert: OSHA under Deadline for a Nationwide COVID-19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future <p> On his first full day in office, President Biden issued an Executive Order on <em>Protecting Worker Health and Safety</em>, which required OSHA to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. <a href="">Executive Order 13999</a>, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is necessary to protect them from the grave danger. 29 U.S.C. § 655(c).</p> <p> To read the full article, please click <a href="">here</a>.</p> 3 Mar 2021 Client Alert: Russia Sanctions – A Targeted Multilateral Approach <p> In a coordinated action with the EU, on March 2, 2021, the Biden administration unveiled a range of <a href="" target="_blank">sanctions </a>and other actions against Russia in response to the poisoning and imprisonment of Russian political opposition figure Aleksey Navalny. It is noteworthy that the Trump administration had largely ignored Navalny’s poisoning. While mostly symbolic, the sanctions will impact exporters of controlled goods, software, or technologies to Russia, and those who may transact with designated scientific and research institutes. The new sanctions come after a <a href="" target="_blank">US intelligence assessment</a> concluded with “high confidence” that Russian Federal Security Service officers poisoned Navalny with the nerve agent Novichok in August 2020. These actions demonstrate the increasing emphasis on human rights considerations in US sanctions strategy, as the US and EU seek to address Russia’s deepening authoritarianism. As the Biden administration implements this new sanctions strategy, compliance counsel should assess their companies’ risk profiles and ensure their sanctions compliance programs and screening tools use the most current designated parties lists.&nbsp;</p> <p> To view the full alert, click <a href="" target="_blank">here</a>.</p> 5 Mar 2021 Client Alert: “The Order is Rapidly Fadin’”—Courts Begin to Protect Landlords’ Rights in the Face of Eviction Moratoria <p> Since early 2020, the COVID-19 pandemic has caused substantial hardship across the globe, including significant and widespread economic distress. The hardship has impacted the nations’ landlords small and large. For example, according to a January 2021 report published by Moody’s Analytics, 18% of renters nationwide—more than 10 million people—are behind on rental payments. That is more than triple of an average year.</p> <p> The federal government, along with some state and local governments, have furthered that distress by instituting rent and/or eviction moratoria that disregard landlords’ economic realities. These actions threaten the ability of landowners to meet their own mortgage, maintenance, employee, and other obligations, potentially resulting in debt, forced loss of property, and a cascading effect throughout the economy. Significantly, and the focus of this article, many or most of these continuing moratoria also violate the subjected landlords’ contractual, statutory, and constitutional rights.</p> <p> To read the full article, please click <a href="">here</a>.</p> 4 Mar 2021