People

Jonathan G. Cedarbaum

Partner

Cedarbaum, Jonathan G.

Jonathan Cedarbaum leads the firm's False Claims Act Group and is a member of its Cybersecurity, Privacy and Communications Group, in which he counsels clients on regulatory and policy issues and frequently oversees cyber incident response efforts. Mr. Cedarbaum also litigates Administrative Procedure Act, constitutional and international cases and represents clients before administrative agencies and congressional committees.

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 handled the cybersecurity and surveillance docket and 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 and 2018 editions of the Best Lawyers in America in the area of appellate law
  • Named to the 2016 and 2017 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 2012-2018

Publications & News

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March 29, 2018

Infrastructure Series: Border Wall Litigation Update

As discussed in previous issues of WilmerHale's Infrastructure Series, the Trump Administration is examining legislative and executive actions to streamline the permitting of infrastructure projects.

March 26, 2018

Board Oversight of Cybersecurity

Cybersecurity is one of the highest priority issues for public company executives and directors. This note shares our views—developed over our involvement in the aftermath of many cybersecurity events as well as counseling on cyber-preparedness—on how boards can properly oversee cybersecurity risks. This client alert was also published by Law360.

March 26, 2018

Congress Enacts Law Clarifying Reach of Warrants for Overseas Data

On Friday, March 23, President Trump signed into law the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which amends the Stored Communications Act (SCA), 18 U.S.C. § 2701, et seq., to require providers of electronic communication services or remote computing services to produce data sought by the government under the SCA, regardless of whether the data are located within or outside the United States.

March 20, 2018

D.C. Circuit Invalidates Portion of FCC's 2015 Declaratory Ruling & Order Implementing the TCPA

On March 16, 2018, the D.C. Circuit issued its long-awaited ruling in ACA International, et al. v. FCC, et al., resolving a series of challenges to the July 10 2015 Declaratory Ruling & Order of the Federal Communications Commission implementing the Telephone Consumer Protection Act.

March 8, 2018

An Escobar Roundup: Falsity, Materiality, and Scienter

Since the Supreme Court's June 2016 decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), lower courts have debated when implied certification claims are viable under the False Claims Act (FCA).

February 23, 2018

SEC Approves Guidance on Public Company Cybersecurity Disclosures

On February 21, 2018, the Securities and Exchange Commission approved an interpretive release updating guidance on public company disclosure and other obligations concerning cybersecurity matters. This article was also published by the Harvard Law School Forum on Corporate Governance and Financial Regulation.

February 5, 2018

Justice Department Issues Memo Limiting Use of Agency Guidance in Affirmative Civil Enforcement Suits

On January 25, Associate Attorney General Rachel Brand issued a memorandum to all components of the Department of Justice with civil litigating authority limiting the use of agency guidance documents in affirmative civil enforcement cases.

January 25, 2018

Justice Department Issues Guidance on Dismissing Qui Tam False Claims Act Cases Over Relators' Objections

On January 10, the head of the Justice Department's Civil Frauds Section issued an internal memorandum instructing all Department attorneys handling False Claims Act cases to consider whether, when declining to intervene, the government should go further and move to dismiss meritless cases over relators' objections.

January 12, 2018

The Washington Post Spotlights 90-Year-Old Veteran and WilmerHale Client's Long Quest for Justice

The Washington Post prominently featured the quest for justice of a WilmerHale client, a 90-year-old who was expelled from the Air Force in the 1950s with an “undesirable” discharge for being a lesbian.

January 12, 2018

Reject The Mistaken Qui Tam FCA Resealing Doctrine

In this article published by Law360, Jonathan Cedarbaum and Matthew Benedetto highlight why it's imperative for courts to reconsider the resealing doctrine, the increasingly common view that a relator's amended complaint, particularly one that includes substantial additions, should be filed under seal, even after the initial complaint was unsealed and the government has declined to intervene.

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

Independent Agencies

  • Administrative Conference of the United States, Public Member, 2017-present

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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