Jonathan A Law & Associates

Over US$2bn in fines imposed by the US Securities and Exchange Commission (SEC) alone for record-keeping failures related to the so-called ‘off-channel’ communications have sent shockwaves throughout the industry. What began as a single announced settlement in December 2021 has exploded into an industry-wide sweep that has impacted more than 75 companies ranging from Wall Street’s largest banks to niche broker–dealers. Compliance professionals are looking for answers. They are seeking to strike a difficult balance between enabling employees to communicate effectively using the latest available technologies and ensuring compliance with ageing record-keeping rules. Add a regulatory pressure cooker that has produced a staggering number of eight and nine-figure penalties and it is easy to see why this issue has been dominating headlines and keeping compliance professionals up at night. This paper explores the recent surge in off-channel enforcement and offers some considerations and potential solutions for compliance professionals seeking to meet these challenges head-on. While there are no ‘silver bullets’ or ‘one-size-fits-all’ solutions, there are practical considerations that compliance professionals should consider weighing with respect to the compliance programmes they are charged with overseeing. Specifically, this paper identifies potential solutions as they relate to policies and procedures, training, technology and monitoring and testing. In an area that is inherently specific to each organisation and ever-changing, this paper equips compliance professionals with a toolkit to address one of the most pressing regulatory challenges of our time.

Cryptocurrency, its risks, its volatility, and recent collapses of crypto-related firms have been splashed across the news for years. It is therefore unsurprising that recent developments surrounding disruption in the US banking system have thrust cryptocurrency into the spotlight again, with conventional financial analysts debating the degree to which blockchain-related institutions and products may have contributed to recent bank runs and instability. In the meantime, many US regulators have tended to focus on the potential downsides and risks of blockchain technology, and have recently increased the intensity of their enforcement activities against crypto market participants, often premised on decades-old legislation and case law. In the context of these broad trends, an underexplored idea is that greater integration of blockchain technology into the mainstream financial system could actually reduce bank run risk. If that is right, certain US regulators should modulate their approach and devote further resources to fostering a healthy adoption of blockchain technology within the financial system. Against that backdrop, this paper explores the potential capacity of blockchain technology to curtail widespread risk in the financial system, suggests that blockchain technology indeed has significant power to act as a risk mitigant, offers some practical observations as to how blockchain adoption could improve the risk profile of financial systems, and concludes that the promise of blockchain technology in this regard should spur US regulators to foster and promote the growth of blockchain.

Italy should unilaterally extend maturities for its domestic government securities to facilitate an orderly and streamlined restructuring that provides Italy with necessary debt relief. Italy’s domestic government securities are issued as decrees under a 2003 Consolidated Act (the “Act”). Article 3 of the Act explicitly grants Italy the power to unilaterally extend maturities for all domestic government securities. To exercise this restructuring power, the Ministry of Economy and Finance (the “Ministry”) must issue a framework decree that authorizes the Treasury to unilaterally reprofile Italy’s debt. In 2011, Edelen et al. first proposed that Italy had the authority under its existing laws to unilaterally reprofile its sovereign debt. The following proposal expands upon and updates the Edelen et al. proposal. It demonstrates that the inclusion of the Collective Action Clauses (“CACs”) in some of its bonds does not foreclose the use of Italy’s Article 3 power. The proposal also describes the mechanics by which Italy would exercise its right to extend maturities. Unilaterally extending maturities does not require any retroactive utilization of the local law advantage. Nor does it expose Italy to significant legal risks in its domestic courts or under European treaties and conventions.

Rapid advancements in information technology have transformed day-to-day university operations and, in doing so, have altered the landscape of risk management. Authors Gregory L. Demers, J. William Piereson, Mark A. Cianci, and Peter L. Welsh provide an overview of some of the most significant social-media-related risks faced by colleges and universities, before considering ways to mitigate these risks through a broad insurance coverage plan. The article explains how, given the relative novelty of this field, the coverage afforded by insurance policies inevitably will vary, often significantly, from insurer to insurer.

The privacy rule of the Health Insurance Portability and Accountability Act (HIPAA) has made all physicians think more about their patients' privacy. In addition to safeguarding health information in routine office practice, doctors now are starting to consider the effects of the regulations on other professional activities including professional clinical multimedia presentations. This article explains specifically where and how multimedia (e.g., images, video) patient information may be used and shared. Although HIPAA itself is a lengthy and detailed document, a few simple rules can be extracted, which when followed, ensure that neither presentations nor patient privacy need to be sacrificed.

As more same-sex couples enter into civil unions and domestic partnerships, the courts and other institutions are beginning to consider the implications of these partnerships in several areas of the law. A Georgia appeals court, for example, recently published the first opinion addressing this issue, ruling that a civil union of two women, obtained in Vermont, was not equivalent to a marriage for the purposes of interpreting a child custody agreement entered into in Georgia. As many observers predicted, the enactment of legislation recognizing same-sex partnerships has profound implications on the practice of family law, trust and estate law and healthcare law.This Article focuses on an area of healthcare law in which the legal status of a civil union or domestic partnership could have significant consequences—organ donations. In particular, it explores whether a civil union or domestic partner is an appropriate party to consent to an organ donation.