Whistleblower Law - In the News

 

Lisa J. Banks
Partner
Katz, Marshall & Banks, LLP
Co-Author, Whistleblower Law: A Practitioner's Guide

The Defend Trade Secrets Act (DTSA), signed into law by President Obama in May 2016, is one of the most significant developments in whistleblower law in some time. Among other provisions, the DTSA provides immunity from liability for disclosing trade secrets to a government official or attorney for the purpose of reporting or investigating suspected illegal activity, as well as disclosures made in legal proceedings, so long as the disclosure is under seal. This protection extends to retaliation lawsuits.

In many ways, the Act’s whistleblower protections are modest. For instance, the DTSA immunizes a whistleblower who uses trade secret information “in the court proceeding” after the whistleblower “files a lawsuit [under seal] for retaliation.” But most federal whistleblower statutes require a whistleblower to first file an administrative complaint with the Department of Labor, and it is unclear whether disclosures made in such complaints would be immunized or even could be sealed. The Act may also encourage whistleblowers to file under seal more often than necessary out of concern that a court might determine that some piece of evidence underlying the complaint constituted a trade secret. Despite its potentially narrow scope, the DTSA undoubtedly provides significant protections not previously available for whistleblowers.

The DTSA is part of a broader trend in whistleblower law to deter companies from stifling employees’ ability to alert appropriate authorities on potentially unlawful activity. This trend was reflected in the SEC’s recent spate of enforcement actions – seven since August 2016 – against companies that used employment agreements to stifle current and former employees’ ability to report wrongdoing to the government. Similarly, OSHA announced in August 2016 that it would not approve of settlement agreements between whistleblowers and their employers that included confidentiality provisions that prohibited the whistleblower from providing information to the government. Elsewhere, the Department of Defense, NASA, and the General Services Administration issued a final rule in January 2017 prohibiting federal contractors from using agreements that restrict “the lawful reporting of waste, fraud, or abuse to a designated government representative authorized to receive such a report.”

These statutory and administrative efforts to preserve the ability of whistleblowers to report wrongdoing to the government, regardless of contractual provisions to the contrary, represent an important development in whistleblower law. While attorneys specializing in this area of law will be watching carefully to see whether these efforts continue under the new administration, protecting whistleblowers has long been a bipartisan issue. Powerful senators ranging from Charles Grassley (R-IA) to Patrick Leahy (D-VT), among many others, having expended considerable effort over the years to protect those who speak truth to power. The hope among whistleblower advocates is that this issue will continue to enjoy support from both sides of the aisle in the years to come.

Click to learn more about Whistleblower Law: A Practitioner’s Guide. Register and download Chapter 1 for free.

Additionally, Law Journal Press offers several related reference solutions:
Employment Litigation
Federal False Claims Act and Qui Tam Litigation
Corporate Criminal Liability and Prevention
Corporate Governance: Avoiding and Responding to Misconduct
Federal Corporate Sentencing: Compliance and Mitigation
Business Separation Transactions: Spin-Offs, Subsidiary IPOs and Tracking Stock
White Collar Crime: Business and Regulatory Offenses
Health Care Fraud: Enforcement and Compliance
Education Law

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We introduce “In the News,” a new feature born from the Law.com news network, with commentary by our authors. This feature links the important practical information you will find in our latest product releases with what is going on in our industry.

This month Caroline Young, author of Legal Research and Law Library Management, reports on cybersecurity and the expanding role of the law librarian as data gatekeeper. The latest update of the popular treatise contains an analysis of best practices for law libraries, an outline of the role of law librarians in bolstering cybersecurity, and a cybersecurity preparedness checklist.

Coming soon, Lisa J. Banks (Katz, Marshall & Banks, LLP), author of Whistleblower Law: A Practitioner’s Guide, will give her perspective on key issues likely to be impacted by the new Administration.

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Whistleblower Law: A Practitioner's Guide

   

Whistleblower Law: A Practitioner's Guide
by: Lisa J. Banks: Katz, Marshall & Banks, LLP and
Jason C. Schwartz: Gibson, Dunn & Crutcher LLP

Print + Online + eBook: $512
eBook + Online: $468
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As a federal government watchdog, I often work with corporate and government insiders with first-hand knowledge of matters vital to the public interest. Whistleblowers are the first and best line of defense against waste, corruption, and other misconduct by the government and its contractors. This book is simply without equal as a comprehensive, non-biased guide to the current landscape of federal and state whistleblower law." —Danielle Brian, Executive Director Project on Government Oversight

In this volume, you will access an in-depth, balanced overview of whistleblower law and the many issues facing practitioners today:

  • Major legislation, including the False Claims Act of 1863, the Sarbanes Oxley Act of 2002, and The Dodd-Frank Act
  • Whistleblower protections in the areas of consumer and investor affairs, nuclear and environmental law, and transportation
  • Survey of state laws and the District of Columbia
  • Whistleblower incentive programs, including those from the SEC, CFTC, and IRS
  • Unique challenges faced by whistleblowing attorneys and compliance officers
  • Employer considerations, including preventative measures, investigations, disclosures, privilege, and settlements.

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White Collar Crime: Business and Regulatory Offenses

 

White Collar Crime: Business and Regulatory Offenses
by: Robert G. Morvillo
Otto G. Obermaier: Martin & Obermaier, LLC
Robert J. Anello: Abramowitz Grand Iason & Anello PC and
Barry A. Bohrer: Schulte Roth & Zabel,

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The brief overview: In White Collar Crime: Business and Regulatory Offenses, Otto G. Obermaier, Robert G. Morvillo, Robert J. Anello, and Barry Bohrer have gathered a prestigious group of authors to counsel you on: criminal tax cases; securities fraud; RICO; mail and wire fraud; banking crimes; criminal antitrust actions; bribery and extortion; conspiracy; entrapment and government overreaching; government contract fraud; grand jury practice; perjury and false declarations; and general principles governing the criminal liability of corporations, their employees and officers.

White Collar Crime: Business and Regulatory Offenses also features a discussion of computer crime, including provisions of the Electronic Communications Privacy Act and the creation of Computer Hacking and Intellectual Property Squads designed to combat copyright theft, computer fraud and hacking. There is also valuable information on forfeiture; the Computer Fraud and Abuse Act; and the Supreme Court's interpretation of the standard of “gross proportionality” as it applies to violations of the Eighth Amendment's “excessive fines” clause.

Because the crime of "insider trading" is not expressly defined by any statute but relies instead on judicial interpretations of certain broad provisions of the securities laws, understanding the law of insider trading requires a close analysis of the relevant statutes and rules as well as of the decisions of multiple courts in both the criminal and civil contexts. Release 54 for White Collar Crime: Business and Regulatory Offenses introduces a new chapter by Robert J. Anello and Brian A. Jacobs that examines the underlying law, including the Supreme Court’s 2016 decision in United States v. Salman, civil insider trading liability, civil and criminal penalties, the private right of action, and pending insider trading legislation.

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Computer Law: Drafting and Negotiating Forms and Agreements

   

Computer Law: Drafting and Negotiating Forms and Agreements
by: Richard Raysman and
Peter Brown

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Don't draft a computer-related agreement without this guide! Richard Raysman and Peter Brown have opened their files to bring you over 100 user-friendly forms and agreements. In Computer Law: Drafting and Negotiating Forms and Agreements you will find discussions of such key topics as: hardware acquisition, financing and maintenance; software licensing, development and maintenance; antitrust law; copyright, patent and trade secret protection of software; the Internet and electronic communications; domain name registration; the computer contracting process; outsourcing; resellers; software publishing; work for hire; electronic fund transfers; the status of source codes under bankruptcy; and litigating computer actions, including the use of expert witnesses.

Computer Law: Drafting and Negotiating Forms and Agreements includes an overview of computer technology, featuring a unique computer law glossary, and keeps you up to date on the latest legislative developments and significant state and federal court decisions. This two-volume deskset comes complete with a CD-ROM containing all the forms discussed in the text. You'll be able to draft high-quality legal documents with less work and in less time than ever before.

 

Information Security Law: Control of Digital Assets

   

Information Security Law: Control of Digital Assets
by: Mark G. Milone

Print + Online + eBook: $721.00
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An essential tool for any lawyer or businessman concerned about liability from data security breaches or SOX violations. — Warren E. Agin, Swiggart & Agin, LLC

In Information Security Law: Control of Digital Assets, Mark Milone offers a comprehensive and useable desk reference, invaluable to counsel wrestling with U.S. information security issues (from incident reaction, to breach notification, to security planning). Through extensive cross-referencing, this pulls together the mosaic of applicable rules and yields a comprehensible road-map to assessing information security obligations.” — Vincent I. Polley, partner at Dickinson Wright PLLC and former chair of the ABA's Cyberspace Law Committee

For most organizations, an effective information security policy is vitally important. In some instances, it is a legal requirement.

Information Security Law: Control of Digital Assets provides encyclopedic coverage of both the technologies used to protect a network and the laws and policies that bolster them. It is filled with practical advice on all aspects of implementing effective internal controls, protecting user privacy, preventing computer crimes, leveraging intellectual property and avoiding regulatory scrutiny.

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Law Libraries and Cybersecurity

    •   

Caroline Young
Associate Director for Public Services,
The Center for Law and Justice Library
Rutgers Law School
Author, Legal Research and Law Library Management

On the heels of the recent indictment of three Chinese nationals for hacking into two U.S. law firms to obtain insider information, Legal Research and Law Library Management introduces a new chapter on cybersecurity. This chapter includes an analysis of best practices for law libraries, an outline of the role of law librarians in bolstering cybersecurity, and a cybersecurity preparedness checklist.

For years, the Federal Bureau of Investigation has been cautioning law firms that they are specifically subject to attack because they have sensitive data that if released could be devastating to clients that the firms represent.  The specific risk to law firms draws from their size. They have much larger bank accounts than individual consumers yet they are much smaller than most large companies and do not spend the money or do not have the infrastructure to put all of the right security measures into place. However, there is no doubt that breaches at law firms happen, and they occur much more than generally appreciated, although they are often not reported. In fact, one study found that 25% of law firms with more than 100 attorneys have had a security breach. Shockingly, the bulk of attorneys say that their firm has no data-breach response plan.

Understanding why cyberattacks attacks occur begins with understanding what hackers are looking for. The most common scenario is that hackers are not trying to find any specific piece of information. Rather, they randomly retrieve an enormous amount of data and then examine it to see what information is potentially valuable.

Since law firms, law libraries, and other organizations depend on their capacity to collect, access, and process huge amounts of electronic data (aggregated data) for operational efficacy, law firms and other organizations have taken on significant risks and responsibilities. For example, most law firms electronically store large amounts of extremely sensitive client information, employee records, and sensitive financial information about the firm, which makes them particularly vulnerable to hackers, causing serious financial, legal, and operational costs to the firm. 

With the dangers associated with holding huge amounts of electronic information come novel opportunities and security solutions. There are numerous potential roles for law librarians and legal information professionals in their institution’s cybersecurity plans that will allow them to partner with IT staff and other stakeholders. Some of the areas where law librarians and legal information professionals may be especially helpful are working with third-party vendors, educating and training other employees, and researching security options (e.g., software solutions, cybersecurity insurance, and the like).

Law librarians and legal information professionals are particularly well suited to aiding in the battle against cybersecurity threats in the following ways:
    • Upholding third-party vendor compliance with
       cybersecurity policies
    • Educating users about multiple devices and data access
    • Pinpointing the data that is most likely to be
       targeted or damaging if it is breached
    • Educating users about data encryption
    • Supporting and protecting password practices
       (research and software support)
    • Fine-tuning employee behavior policies
    • Training on cybersecurity rules
    • Researching cybersecurity liability insurance (research)
    • New threats: ransomware (ongoing research)

Click here to view product information about Legal Research and Law Library Management. Register and download Chapter 1 for free.

Additionally, Law Journal Press offers two related reference solutions, Information Security Law: Control of Digital Assets and Privacy Law. Not a subscriber? Take 15% off a new subscription to any of these 3 titles using promo code 510467. Promotion valid through December 31, 2017.

 

Cybersecurity Law & Strategy

 

Cybersecurity Law & Strategy
Monthly Electronic Newsletter: $445/year
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Latest developments, trends, cases, case studies in cybersecurity, data privacy, e-discovery, cloud computing and other legal technology.

“It’s not if you’re going to get hacked, it’s when.”

Data breaches, hacking and privacy concerns have been all over the news and present a dangerous proposition for companies that collect personal private information from customers. Law firms should be especially concerned as they possess clients’ personal information plus confidential information of corporate clients, including intellectual property/patent information.

Keeping clients’ data and information secure can be the difference in signing a client and avoiding malpractice claims if the data gets exposed. Law firms and corporations need to have a cybersecurity plan in place, as well as a plan to respond in case the data is breached.

Updated monthly with articles and analysis by experts in the field.