In 2020, SolarWinds Corp., a company that provided information technology software to private and government entities, was the victim of a cybersecurity breach. Russian hackers are believed to have slipped malicious code into a SolarWinds software product called Orion, which was then used to infect, and in certain cases, compromise, SolarWinds customers. As a consequence, SolarWinds found itself the target of litigation, including a derivative suit before the Delaware Court of Chancery in Construction Industry Laborers Pension Fund v. Bingle.
District Court Declines to Dismiss NFT “Insider Trading” Indictment against Former OpenSea Employee
In late October, a New York district court refused to dismiss the Department of Justice’s (DOJ) indictment against defendant Nathaniel Chastain, who was charged with wire fraud and money laundering relating to his using insider knowledge to purchase non-fungible tokens (NFTs) prior to them being featured on OpenSea, an online NFT marketplace, and later selling them at a profit. (U.S. v. Chastain, No. 22-cr-305 (S.D.N.Y. Oct. 21, 2022)). Despite the headlines and the fact that the DOJ’s press release labeled this enforcement as charges brought in “the first ever digital asset insider trading scheme,” the Chastain indictment was not actually based on the typical insider trading statutes involving securities law violations, but instead the federal wire fraud statute. Indeed, despite having an insider trading flavor, the word “security” does not appear in the indictment and the court, in refusing to dismiss the DOJ’s wire fraud claim, ruled that the Government’s wire fraud claim does not require the presence of a “security.”
Read the full post on Proskauer’s Blockchain and the Law blog.
New Study Finds Trickle-Down Effect from Board Diversity
A new study has found that diversity on corporate boards of directors leads to statistically significant increases in the representation of under-represented groups at the manager and staff level. The study – “Do Diverse Directors Influence DEI Outcomes?” by Wei Cai (Columbia Graduate School of Business), Aiyesha Dey (Harvard Business School), Jillian Grennan (Santa Clara University and UC-Berkeley), Joseph Pacelli (Harvard Business School), and Lin Qiu (Purdue University) – adds to the growing literature on board diversity and human capital management, two significant ESG considerations for many corporations and investors. While proponents of ESG sometimes focus on advancing each of those goals individually, the study links the two considerations and shows that one of them (board diversity) can promote at least some aspects of the other (diversity, equity, and inclusion in the workforce).
In The Zone? When Directors of Portfolio Companies Have to Take Creditor Interests into Account
Representatives of asset managers often take up positions on the boards of portfolio companies. We have written posts before on some of the litigation and regulatory risks that can arise, both for the asset managers and the individuals including: Portfolio Company Risk: Plaintiffs Set Sights on Sponsors and Board Directors, The Trend of Increasing Disclosure Obligations for Private Funds Continues in 2022, SEC Proposes Advisers Act Reforms Focusing on Private Fund Investor Protections.
Father Sometimes Knows Best: District Court Blasts SEC’s “No Admit, No Deny” Provisions
In a scathing opinion, Southern District of New York Judge Ronnie Abrams recently blasted the SEC’s standard demand that defendants settling with the Commission agree never to deny the allegations against them. Judge Abrams’ decision in SEC v. Moraes reluctantly approved a consent decree containing the usual “no admit, no deny” provision in light of the Second Circuit’s recent decision upholding such provisions in SEC v. Romeril, in which Judge Abrams’ father (the famed First Amendment lawyer Floyd Abrams) represented the defendant in his unsuccessful petition for certiorari. But Judge Abram expressed concern that the SEC’s insistence on such provisions violates the “unconstitutional conditions doctrine” and the First Amendment.
Keeping Up With Kim Kardashian’s SEC Charges
The SEC spread its reach to Hollywood this month – on October 3, 2022, the SEC announced charges against Kim Kardashian for her social media promotions of EMAX, a digital token issued by EthereumMax. The SEC found that Kardashian violated the anti-touting provision of the federal securities laws by failing to disclose the $250,000 payment she received for the ad.
CFTC Head Urges Congressional Action on Crypto while SEC Leader Says Crypto Rulemaking is “Years Away”
Both the head of the Commodity Futures Trading Commission (CFTC) and leader of the SEC agree that the crypto markets need regulating, and specific rules may help clarify which agency has authority to regulate various cryptocurrency activities. The client alert below discusses both CFTC Chairman Rostin Behnam’s comments and SEC Chair Gary Gensler’s remarks during congressional testimony on September 15.
The uncertain regulatory and statutory outlook present both problems and opportunities for the cryptocurrency market. These circumstances underscore the vital role that outside counsel can play in helping companies and individuals continue to innovate and succeed in the cryptocurrency market while attempting to minimize litigation and regulatory risk.
