The U.S. Securities and Exchange Commission (“SEC”) last week announced settlements with four investment advisory firms regarding alleged violations of the SEC’s pay-to-play rule, illustrating that federal regulators continue to aggressively pursue such cases.   The rule at issue, Rule 206(4)-5 (“the Rule”), prohibits investment advisors from, among other things, receiving compensation from certain government entities for two years after a person affiliated with the investment advisor makes a covered campaign contribution to an official of the government entity.  While the involved firms did not admit or deny the allegations in the settlement orders, an examination of the cases is instructive in assessing the current landscape of SEC pay-to-play rule enforcement.  Together, the four settlements are noteworthy in two major respects: (1) the circumstances of the underlying contributions that highlight the wide-reaching application of Rule 206(4)-5; and (2) the fact that one of the SEC Commissioners issued a sharp dissent that expressed deep concern about the breadth of the Rule.

The settlements involved covered associates at four different firms making contributions to four different recipients: an unsuccessful candidate for Mayor of New York City; the incumbent Governor of Hawaii ; an unsuccessful candidate for Governor of Massachusetts; and to a then-candidate for Governor of California.  In two cases, the firms managed public pension money and, in the other two, the firms managed state university endowments, an often overlooked category of government entity investors. 

While the SEC Rule is intended to prevent fraud, it seems highly unlikely that any of the contributions at issue in these four cases could have influenced state investment decisions: 

  • All four investment advisory firms had preexisting business relationships with the relevant government entities before the prohibited contributions were made and no new business was solicited after the contributions. 
  • One of the donors was not even a covered associate at the time of the contribution.
  • Only one of the four prohibited recipients was an incumbent officeholder at the time of the contribution. 
  • Two of the four recipients failed to win election to the offices they sought. 
  • Two of the cases involved situations where the donor either received a refund or requested a refund. 
  • The contribution amounts were a drop in the bucket in proportion to the tens of millions of dollars raised in these elections – three cases involved a single $1,000 contribution and the fourth involved a contribution of $1,000 and another $400. 
Continue Reading SEC Commissioner Says It’s “Past Time” To Reform Overly “Blunt” Pay-to-Play Rule

On September 8 and 9, top trade officials of the United States and the other Indo-Pacific Economic Framework (“IPEF” or “Framework”) partner countries—Australia, Brunei Darussalam, Fiji, India, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Philippines, Singapore, Thailand and Vietnam—launched formal negotiations in Los Angeles.

This marked the first in-person ministerial-level meeting since the IPEF launched on May 23, 2022 and follows three informal meetings since May 2022, the latest event being the virtual ministerial on July 26-27, discussed in detail in our previous post.

The Los Angeles ministerial involved intensive discussions on what to include in the scope of the Framework. Ultimately, the IPEF partners reached consensus on ministerial statements for each of the four IPEF framework pillars: Trade, Supply Chain, Clean Economy, and Fair Economy. All 14 IPEF partners have joined three of the pillars, and 13 joined the fourth—with just India opting out of the Trade pillar. While this near unanimous support for the four pillars is certainly a positive sign, the real work begins now.

This blog post summarizes how the ministerial statements characterize the four pillars and outlines next steps for the Framework and key remaining questions.

Takeaways from the Ministerial Statements

The ministerial statements confirmed the four pillars of negotiation and provided added clarity on the scope and content of each pillar. While the statements add little to the substance, they indicate a political commitment among the partners to the Framework.

Continue Reading IPEF Partners Adopt Ministerial Statement and Negotiation Objectives

Last week, the FTC announced its release of a staff report discussing key topics from the April 29, 2021 workshop addressing dark patterns. The report states that the FTC will take action when companies employ dark patterns that violate existing laws, including the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes and regulations enforced by the FTC. The report highlights examples of cases in which the FTC used its authority under these laws and regulations to bring enforcement actions against companies that allegedly used dark patterns. Accordingly, the report builds upon the FTC’s historical approach of using its existing authority to bring enforcement actions in this context.

The report also includes a list of mechanisms that the FTC alleges are dark patterns.  While the FTC explained how some of these are unlawful, the report was unclear whether or how others violated any of the laws above.  As Commissioner Wilson noted:

The term ‘dark patterns’ deserves a few words of explanation. It certainly sounds ominous – but as the report explains, not all dark patterns are unlawful. … While the use of this term may be relatively new and attention grabbing, at its core the term describes practices that have  long been the focus of FTC enforcement actions. For example, the agency has prosecuted companies that used ads deceptively formatted to look like news articles to drive sales;… sued websites and apps that obscured or hid fees;… and challenged efforts by companies that prevented customers from canceling memberships… Rules of thumb and decision-making shortcuts have value. And companies legally can capitalize on common heuristics in ways that increase profits.

The below bullets include categories of dark patterns in italics and specific examples in plain text.

  • Inducing false beliefs: advertisements that are formatted to look like news articles or falsely suggest impartiality.  The FTC already regulates such practices as deceptive, based on its native advertising enforcement.
  • Hiding or delaying disclosure of material information: hiding fees or including them at the end of a purchase flow only.  The FTC previously has brought numerous cases alleging such practices are deceptive in violation of Section 5 of the FTC Act.
  • Leading consumers to unauthorized charges: offering a free trial, which precedes a recurring subscription charge if the consumer fails to cancel, or advertising a game as free when the game permits in-app purchases.  Likewise, the FTC has brought actions involving such practices previously as violations of ROSCA and Section 5. 
  • Subverting privacy choices: graying out disfavored options, failing to provide sufficient notice of default settings, or conveying a false affiliation to manipulate consumers into sharing information. 

On September 15, 2022, the European Commission published a draft regulation that sets out cybersecurity requirements for “products with digital elements” (PDEs) placed on the EU market—the Cyber Resilience Act (CRA). The Commission has identified that cyberattacks are increasing in the EU, with an estimated global annual cost of €5.5 trillion. The CRA aims to strengthen the security of PDEs and imposes obligations that cover:

  1. the planning, design, development, production, delivery and maintenance of PDEs;
  2. the prevention and handling of cyber vulnerabilities; and
  3. the provision of cybersecurity information to users of PDEs.

The CRA also imposes obligations to report any actively exploited vulnerability as well as any incident that impacts the security of a PDE to ENISA within 24 hours of becoming aware of it.

The obligations apply primarily to manufacturers of PDEs, which include entities that develop or manufacture PDEs as well as entities that outsource the design, development and manufacturing to a third party. Importers and distributors of PDEs also need to ensure that the products comply with CRA’s requirements.

Continue Reading EU Publishes Draft Cyber Resilience Act

This half-yearly update on insurance coverage litigation summarises significant insurance coverage cases in the English courts and provides a detailed analysis of the Corbin & King v AXA Insurance UK Plc case, highlighting the key takeaways for policyholders. In the first half of 2022, the English courts have delivered important judgments on a number of critical issues for policyholders, including Covid-19 business interruption insurance, aggregation clauses, insurers’ implied obligation to pay claims within a “reasonable” time, and the effect of lenders’ mortgagee interest insurance policies; some of which are policyholder friendly, some less so.  

Significant cases 2022 H1

Corbin & King v AXA Insurance UK Plc [2022] EWHC 409 (Comm): In the most anticipated decision of the last half-year relating to Covid-19 business interruption losses, the English High Court determined in favour of a restaurant business, that a prevention of access clause in its policy was triggered by the Government-mandated lockdowns arising from Covid-19 in 2020 and 2021. Given the importance of this case for policyholders, we analyse the court’s findings in further detail below.

Spire Healthcare Limited v Royal & Sun Alliance Insurance Limited [2022] EWCA Civ 17: This decision is the latest word on the interpretation of “aggregation clauses” in insurance policies that require a policyholder to aggregate similar or related losses into a single claim against the insurer, which is then subject to a liability cap on each claim. The Court of Appeal held that several claims against the policyholder could be aggregated into one claim against the insurer on the basis that there was “one source or original cause” of the policyholder’s loss. As a result, the policyholder’s recovery was limited to £10 million, the policy limit per claim.

Continue Reading Half Year Review: Insurance Coverage Litigation (H1 2022)

There have been several recent developments in international efforts to combat trade in goods made with forced labor, with important implications for responsible sourcing and global trade compliance programs.

On September 14, 2022, the European Commission (“Commission”) published a proposal to ban products made with forced labor from the EU market. The proposal notably goes beyond banning the importation of such products and would also create a ban on the export of products produced with forced labor and require their withdrawal from the EU market.

Meanwhile, enforcement by U.S. Customs and Border Protection (“CBP”) of the U.S. forced labor import prohibition has continued to intensify, including under the Uyghur Forced Labor Prevention Act (“UFLPA”). In early August 2022, CBP clarified the process for updating the UFLPA Entity List. In addition, CBP recently announced that it intends to integrate forced labor compliance requirements into the Customs Trade Partnership Against Terrorism (“CTPAT”) “trusted trader” program.

We discuss these developments and their implications below.

EU Forced Labor Product Ban

The European Commission has proposed a Regulation prohibiting products made with forced labor from being imported to, exported from, or sold in the EU, following an announcement by Commission President Ursula von der Leyen during her State of the Union address in September 2021.

The Commission’s proposal is the first step in the EU’s formal legislative process. The Regulation will now have to be agreed by the European Parliament and Council to become law, following which there will be an agreed delay—the Commission has proposed two years—before it applies in EU Member States. As it usually takes at least 12 months, and often closer to 18 months, for the European Parliament and Council to agree on a legislative text after a proposal by the Commission is published, it is unlikely that the Regulation will be adopted before the end of 2023, and it is therefore unlikely to become applicable earlier than late 2025.

Continue Reading Breaking Developments in Forced Labor Trade Enforcement—the EU’s Proposed Forced Labor Product Ban and Recent Developments in U.S. Customs Enforcement

The UK Government’s (UKG) proposals for new, sector-specific cybersecurity rules continue to take shape. Following the announcement of a Product Security and Telecommunications Infrastructure Bill and a consultation on the security of apps and app stores in the Queen’s Speech (which we briefly discuss here), the UKG issued a call for views on whether action is needed to ensure cyber security in data centres and cloud services (described here).

In recent weeks, the UKG has made two further announcements:

  • On 30 August 2022, it issued a response to its public consultation on the draft Electronic Communications (Security measures) Regulations 2022 (Draft Regulations) and a draft Telecommunications Security code of practice (COP), before laying a revised version of the Draft Regulations before Parliament on 5 September.
  • On 1 September 2022, it issued a call for information on the risks associated with unauthorized access to individuals’ online accounts and personal data, and measures that could be taken to limit that risk.

We set out below further detail on these latest developments.

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Continue Reading A packed end to the UK’s cyber summer: Government moves forward with telecoms cybersecurity proposals and consults on a Cyber Duty to Protect

Over the summer, the UK Secretary of State for Business, Energy and Industrial Strategy (“BEIS”) delivered the first decisions, in the form of final orders, under the National Security and Investment Act 2021 (“NSIA”).  We consider these decisions and other cases in the context of the first nine months of the UK’s new (quasi) Foreign Direct Investment (“FDI”) regime.

Key takeaways:

  • The NSIA has broad reach, and BEIS has shown willingness to exercise the powers to review transactions that can stretch beyond mergers and acquisitions, for example, to licensing agreements.
  • NSIA review involves the weighing of a number of factors relating to the target, the acquirer and the level of control being obtained.  Early decisions suggest that target’s products/services and activities are just as important a factor as the acquirer’s identity, among the cases that have engaged the attention of the Investment Security Unit (“ISU”).
  • “Behavioural” undertakings, e.g. involving implementation of security controls or granting of audit rights to regulators appear to be a continuation of trends seen in the predecessor UK ‘public interest’ regime, and similar to other EU FDI procedures.
Continue Reading UK FDI: Decision-making practice emerging under the National Security and Investment Act

On 6 September 2022, Liz Truss was appointed prime minister of the United Kingdom. With her appointment, Government business will resume after the inevitable hiatus caused by the Conservative Party’s internal election process.

PM Truss has been busy – making her first speech (in which she set out her priorities); taking her first set of Prime Minister’s Questions in the House of Commons; and appointing her Cabinet and junior Ministers as well as the support staff in her own Office. These actions provide the first reliable indicators of her strategic vision for the country – and of her capacity to deliver it.

Truss’s first speech was aspirational but short on strategic vision for her government. The speech did set out a statement of intent in focusing on boosting economic growth, tackling the energy crisis and investing in the National Health Service, but there was no plan for how these goals will be delivered.

However, Truss’ Cabinet appointments perhaps provide a much clearer guide as to the nature and intentions of her government. She has surrounded herself with Ministers and Senior Advisors who share a common intellectual framework and ideology. Almost all are alumni of think-tanks and policy groups that are on the right-wing of the Conservative Party: the Adam Smith Institute, the Institute for Economic Affairs, and the Taxpayers’ Alliance. All espouse reducing the size of the state, increasing competition, enabling free markets, and reducing taxation.

Continue Reading The Truss Government – What Inferences Can We Draw?

This year the impact of climate change has been more visible than ever before. Temperatures in the UK reached an unheard-of 40+ degrees C; rivers in Germany and China have run dry, creating problems for transport and hydro-electric power creation; one-third of Pakistan is under flood-water. This feeling of crisis has been compounded by Russia’s invasion of Ukraine and the consequent ever-rising gas prices.  These factors have combined to focus international political and public attention on the urgency of the energy transition. 

The success of the energy transition will depend on access to significantly increased quantities of rare earth metals and minerals, which are central to the production of permanent magnets used in electric vehicles (EVs) and wind turbines. According to the IEA, meeting current energy policies will require a doubling of current levels of mineral extraction and refining by 2040.  Reaching the Paris target of 1.5 degrees C will require a quadrupling by 2040.  Attaining Net Zero by 2050 requires a six-fold increase by 2040.

Can this be done?

Proven reserves of rare earth elements (REE) are assessed to be sufficient (just) to meet the needs of the energy transition. The question is therefore whether a solution can be found to the inefficiency of their extraction and use; and whether mining and processing activities across the value and supply chains can be expanded quickly enough to meet this projected growth.

Continue Reading Elemental Risk: the Threat to Electric Vehicles