White Collar Roundup - May 2012

Author:Day Pitney LLP's White Collar Defense And Internal Investigations Practice
Profession:Day Pitney LLP

The Trading Algorithm Is No "Good"

Proprietary computer code is not a "good" subject to protection under the National Stolen Property Act and is not "related" to interstate or foreign commerce under the Economic Espionage Act, according to this opinion from the U.S. Court of Appeals for the Second Circuit. The government had won a conviction of a former Goldman Sachs Group Inc. programmer who was alleged to have stolen the company's proprietary trading software. After he appealed his conviction and eight-year sentence, the Second Circuit reversed, holding that while his misappropriation may have violated his confidentiality agreement with Goldman, it did not violate these acts.

It's a Bird! It's a Plane! It's an Attorney-Client Waiver Opinion!

Privileged documents produced in response to a grand-jury subpoena cannot be withheld in subsequent civil litigation (even litigation about Superman), according to this opinion from the Ninth Circuit. The party asserting the privilege attempted to shield production in the civil case by claiming they had only "selectively waived" the privilege to respond to the subpoena. The Ninth Circuit rejected that claim. The court reasoned it may be appropriate to recognize a new privilege to protect from civil litigants documents provided to the government. But the court refused to do so, considering it more properly within the legislature's purview to do so.

When Defense Attorneys Become Prosecutors

A law firm's internal investigation of an alleged violation of the Foreign Corrupt Practices Act (FCPA) is gaining attention because of some recent court rulings. As is set forth in this FCPA blog, the defendants in the criminal prosecution in the Central District of California contend that the firm conducting the internal investigation was nothing more than a stalking horse for the Department of Justice (DOJ). And in some respects, the court has agreed, requiring the firm to produce in response to a subpoena some documents it had considered privileged.

To Cause a Circuit Split . . .

The Computer Fraud and Abuse Act (CFAA) just got a bit more interesting (as if such things are possible). An en banc Ninth Circuit jumped into the fray of interpreting the scope of the CFAA and split with its sister circuits. At issue was the meaning of the term "exceeds authorized access" within the CFAA. The defendant claimed "it could refer to someone who's authorized to access only certain data or files but accesses unauthorized data...

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