People

Jonathan G. Cedarbaum

Partner

Cedarbaum, Jonathan G.

Jonathan Cedarbaum co-chairs the firm's False Claims Act Group and is a leader of its Cybersecurity, Privacy and Communications Group. Mr. Cedarbaum also litigates Administrative Procedure Act, constitutional and international cases. He counsels clients on regulatory matters and represents them before administrative agencies and congressional committees—not only in the area of data security and privacy, but also on matters concerning financial services and healthcare.

Mr. Cedarbaum rejoined the firm in 2011 after spending two years in the leadership of the Justice Department's Office of Legal Counsel, where he ultimately served as Acting Assistant Attorney General in charge of the Office, which provides authoritative legal advice to the White House, the Attorney General, and all executive branch departments and agencies. 

Background

During his time at OLC, Mr. Cedarbaum was deeply involved in the development and early implementation of the Dodd-Frank and Affordable Care Acts. As a member of the Justice Department's senior leadership and as a legal counselor to senior officials across the government, he was also involved in numerous other statutory and regulatory initiatives, including in the areas of cybersecurity and data privacy, economic sanctions, procurement reform and energy development.

Earlier in his career, Mr. Cedarbaum did two additional stints at the Justice Department: two-and-a-half years as an Attorney-Advisor in the Office of Legal Counsel (1999-2002) and a year as a Bristow Fellow in the Office of the Solicitor General (1997-1998). Mr. Cedarbaum has also served as Deputy Chief of Staff to the President of the International Criminal Tribunal for the Former Yugoslavia (2002-2003) and as a legislative assistant for a Member of Congress (1985-1986).

Honors & Awards

  • Selected by his peers for inclusion in the 2017 edition of the Best Lawyers in America in the area of appellate law
  • Named to the 2016 Washington DC Super Lawyers list for his civil litigation practice
  • Elected as a member of the American Law Institute in 2015
  • Selected as one of Lawdragon Magazine's "500 Leading Lawyers in America" in 2012-2015

Publications & News

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August 15, 2016

WilmerHale Lawyers Named Among the 2017 Best Lawyers in America®, Six Recognized as Lawyers of the Year

Best Lawyers in America®—a respected peer-review publication in the legal industry—recognizes 101 WilmerHale lawyers and names six partners as Lawyers of the Year in its 23rd edition.

August 11, 2016

Supreme Court Upholds Implied Certification Liability, While Emphasizing Materiality Requirement

Authors Jonathan G. Cedarbaum, Karen F. Green and David W. Ogden explain the US Supreme Court's recent unanimous decision to uphold the “implied certification” theory of liability under the False Claims Act and discuss the implications for future False Claims Act cases; published in the August 2016 edition of Pratt's Government Contracting Law Report, Vol. 2, No. 8.

June 16, 2016

Supreme Court Upholds Implied Certification Liability, While Emphasizing Materiality Requirement

In Universal Health Services v. United States ex rel. Escobar, the Supreme Court unanimously upheld the “implied certification” theory of liability under the False Claims Act (FCA), while emphasizing that only material misrepresentations are actionable.

May 17, 2016

Final Government Contractor Basic Data Security Rule Issued

On May 16, the Federal Acquisition Regulations (FAR) Council published the final FAR rule on Basic Safeguarding of Contractor Information Systems. The rule is intended to prescribe “the most basic level” of safeguards, “reflective of actions a prudent business person would employ.”

May 16, 2016

Congress Creates Federal Right of Action for Trade Secret Misappropriation

On May 11, President Obama signed into law the Defend Trade Secrets Act of 2016, which enables companies to go to federal court to sue for misappropriation of trade secrets.

March 17, 2016

Energy Sector Alert Series: Appellate Courts Hearing More Energy Cases

Over the last several years, a number of important energy-related cases have reached the US Supreme Court or the federal courts of appeals. Many of these cases concern the scope of authority of the Federal Energy Regulatory Commission and the Environment Protection Agency to regulate in this area.

January 13, 2016

FTC Report Examines Legal and Policy Considerations for Big Data Analytics, Promises More Enforcement

The Federal Trade Commission's (FTC) recent report, Big Data: A Tool for Inclusion or Exclusion?, released on January 6, warns businesses engaged in big data analytics that the practice poses liability risks. While the FTC does not propose new law or policy, the report advises that existing laws-including the FTC Act, the Fair Credit Reporting Act (FCRA), and the Equal Credit Opportunity Act (ECOA)-already can reach certain uses of big data

January 12, 2016

False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department continued to give high priority to False Claims Act investigations, bringing in nearly $3.6 billion in settlements and judgments.

January 8, 2016

Department of Defense Revises Landmark Cybersecurity Rule, Extends Deadline for Some Compliance Requirements

On December 30, 2015, the Department of Defense (DoD) issued a second interim rule on Network Penetration Reporting and Contracting for Cloud Services, amending an earlier version issued on August 26, 2015.2 The new, amended DoD interim rule prescribes cybersecurity requirements, including mandatory cybersecurity-related contract clauses in all DoD contracts subject to the Defense Federal Acquisition Regulations Supplement.

January 7, 2016

Congress Enacts Major Cybersecurity Legislation

On December 18, 2015, Congress passed, and the President signed, the Cybersecurity Act of 2015, which provides authorization and liability protection for cybersecurity monitoring and information-sharing and authorization for cyber defensive measures. The Act, which comes after four years of efforts to enact federal cybersecurity legislation, also creates a new regime to encourage federal agencies to share cyber intelligence with the private sector more rapidly.

Recent Highlights

Litigation

  • Securing dismissal of a series of False Claims Act cases against a major financial institution in federal and state courts
  • Arguing and winning an appeal in the Third Circuit concerning the constitutionality of Delaware's campaign finance disclosure law
  • Filing two amicus briefs in Kiobel v. Royal Dutch Petroleum et al., the Supreme Court case concerning applicability of the Alien Tort Statute to corporations and to conduct outside the United States, on behalf of the National Foreign Trade Council, the National Association of Manufacturers, the American Petroleum Institute, and a dozen other major US and European business associations
  • Playing a leading role in a False Claims Act case concerning bid-rigging on USAID construction contracts, which involved a seven-week jury trial that resulted in a complete victory for the firm's client
  • Briefing and arguing an appeal in the Federal Circuit raising the question whether Congress can constitutionally strip the federal courts of jurisdiction over pending takings claims
  • Defending Philips Electronics, the Dutch technology company, in a series of patent and antitrust challenges to the pool licensing of patents for basic CD, DVD and MP3 technologies in the International Trade Commission, the District Courts, and the Courts of Appeals
  • Filing an amicus brief for the International Franchise Association in FTC v. Wyndham Worldwide Corp. et al. (D. Ariz.), the leading case testing the FTC's authority under Section 5 of the FTC Act to regulate data-security practices

Regulatory Counseling, Investigations and Administrative Proceedings
 
Data Security/Privacy

  • Representing a major software company in a Federal Trade Commission investigation
  • Counseling a major financial institution on legal issues raised by monitoring network traffic and taking countermeasures to cyber attacks
  • Advising a major high-tech company on application of Section 215 of the USA PATRIOT Act to data centers abroad
  • Counseling major cloud computing companies on government contracting issues, including FedRAMP and FISMA
  • Assisting financial, industrial, and high-tech companies in responding to congressional inquiries about data security practices
  • Advising major high-tech companies on the development of federal cybersecurity legislation and the recent critical infrastructure cybersecurity executive order
  • Assisting a university-business consortium in identifying and applying for federal funding for cybersecurity R&D

Healthcare

  • Advising a university medical center about its EMTALA obligations
  • Analyzing for a major pharmaceutical company the likely effect of federal budget sequestration on Medicare reimbursement policies
  • Filing a comment with CMS on behalf of a major medical center opposing an application for a waiver from the rules governing allocation of organs for transplants
  • Advising a major pharmaceutical company about a possible constitutional challenge to retrospective application of the Biologics Price Competition and Innovation Act
  • Counseling a hospital system on the prospects for and likely effects of Medicaid expansion in its state

Financial Services

  • Advising a financial trade association about a possible legal challenge to a Dodd-Frank rulemaking
  • Assessing a possible preemption challenge to a state law regulating mortgage servicing for a major national bank
  • Advising a variety of financial clients on the limits of the CFPB's authorities and the constitutional challenges to the CFPB Director's appointment
  • Advising a group of hedge funds concerning the restructuring of Fannie Mae and Freddie Mac

Professional Activities

District of Columbia Bar Association

  • Administrative Law Section: Co-Chair, 2011-2012; Steering Committee Member, 2007-2012
  • Litigation Section: Steering Committee Member, 2010-2011
  • International Law Section: Chair, 2007-2008; Steering Committee Member, 2005-2011
  • Board on Professional Responsibility: Alternate Hearing Committee Member, 2007-present

American Bar Association

  • Administrative Law Section 
  • International Law Section

Practices

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Education

JD, Yale Law School, 1996, Editor in Chief, Yale Law Journal

MPhil, Yale University, 1990

AB, magna cum laude, Harvard University, 1983, Phi Beta Kappa

Bar Admissions

District of Columbia

Maryland

Languages

French

Clerkships

The Hon. David S. Tatel, US Court of Appeals for the District of Columbia Circuit, 1996 - 1997

The Hon. David H. Souter, US Supreme Court, 1998 - 1999

Government Experience

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