The Criminal Division of the U.S. Department of Justice announced a Pilot Program on Voluntary Self-Disclosures for Individuals on April 15, 2024. Under the new policy, individuals who were involved in certain types of corporate criminal misconduct, who voluntarily disclose that conduct to the Criminal Division, and who meet certain other criteria will be eligible to receive a non-prosecution agreement.

This article, authored by a sitting US District Judge and a former federal prosecutor and State Department Section Chief now in private practice, is focused on the reality that, whether engaging in the civil discovery process or investigating criminal conduct, the need to collect evidence located in a foreign country arises more frequently today than ever before.

Leadership of the U.S. Securities and Exchange Commission addressed criticism, reiterated its commitment to safeguarding investors, and offered a glimpse into its agenda for the upcoming year during the Practising Law Institute’s SEC Speaks conference, held on April 2 and 3 in Washington, D.C. Director of the Division of Enforcement Gurbir Grewal, acknowledged that the Division of Enforcement’s ability to do its job “depends on trust and credibility.”

For more information, an expanded version of this article was previously published in Law360.

On March 1, 2024, New York Governor Kathy Hochul signed an amended version of the New York LLC Transparency Act, which was originally signed with provisions for amendments in December 2023. The NYLTA will go into effect on January 1, 2026, and it will impose certain beneficial ownership disclosure requirements for limited liability companies formed or authorized to do business in New York.

The U.S. Department of Justice's and the U.S. Securities and Exchange Commission's recent settlements with SAP SE to resolve alleged violations of the Foreign Corrupt Practices Act provide insights into how the DOJ and the SEC are enforcing the FCPA, and how corporations can reduce their FCPA liability.

On March 1, 2024, the U.S. District Court for the Northern District of Alabama held that the CTA was unconstitutional because it exceeds Congress’s enumerated powers. As a result, the Alabama district court enjoined enforcement of the CTA as to the plaintiffs in that matter, the National Small Business Association, and one of its individual members.

In March 2024, the American Bar Association's (ABA) 39th Annual National Institute on White Collar Crime provided a forum for significant insights into federal enforcement priorities and emerging risks facing companies and their executives.

After nearly two years of public comments and deliberation, the U.S. Securities and Exchange Commission adopted a Final Rule on Mandatory Climate Disclosures. Most notably, the Final Rule requires companies to report certain greenhouse gas emissions and material climate impact information in their registration statements and annual reports.

The U.S. Department of Justice announced that it initiated a record-high 500 new False Claims Act cases in Fiscal Year 2023. In this Update, we break down the DOJ’s statistics and their significance.

David and Jasmine talk with Markus Funk about the investigation and trial of the powerful Chicago-based Calabrese family mob, who engineered years of extortion, gambling, bookmaking, and hundreds of murders.

The chapter discusses effective best practices for topics ranging from recordkeeping and internal controls, anti-bribery,  affirmative defenses, and trends and developments to penalties, the US Travel Act, and UN, OECD, and various country specific (UK, Canada, France, Brazil, etc.) anti-bribery instruments.

In a commentary for Bloomberg Law, Rachel Mechanic and Daniel Zinman explain how FINRA's in-house tribunal system is defending constitutional challenges and may also have to navigate repercussions from a Supreme Court securities case. 

This Update discusses how the Corporate Transparency Act rules will affect directors and senior officers of CTA reporting companies, in particular. All senior officers, directors and their advisers, and counsel should be aware of these rules and potential implications.

In a Financial Times op-ed, Jamie Schafer explains how the U.S. Corporate Transparency Act will require certain corporations, limited liability companies and similar entities to report beneficial ownership information to the Treasury Department for the first time and how the most important aspect of the new law seeks to dismantle the infrastructure that enables money laundering and other related financial crimes.

Key portions of the Corporate Transparency Act will take effect on January 1, 2024, requiring an estimated 30 million “reporting companies” to disclose to the federal government information and documentation about the entity’s beneficial owners and keep that information current.

Beginning January 1, 2024, the Corporate Transparency Act will require most entities formed or registered to do business in the United States to disclose detailed information regarding their owners, officers, and control persons to the U.S. Department of the Treasury Financial Crimes Enforcement Network.

Jamie Schafer and Olivia Radics wrote an article for Governance Intelligence detailing what to expect in the enforcement of the Corporate Transparency Act.

Markus Funk addresses how the long-anticipated new federal guidelines for how schools should respond to allegations of sex discrimination and sexual misconduct threaten to strip away certain important due process rights for those accused of violations.

California Governor Gavin Newsom signed two climate disclosure bills into law on October 7, 2023. They will impose significant reporting obligations on thousands of companies doing business in California.

Senior Division of Enforcement officials from various U.S. Securities and Exchange Commission offices spoke with SEC alumni, private practitioners, and other legal professionals at the Securities Enforcement Forum Central 2023 in Chicago, Illinois, on September 19, 2023.

The Federal Financial Institutions Examination Council released the fifth phase of updates to the FFIEC Bank Secrecy Act/Anti-Money Laundering Examination Manual on August 2, 2023.

President Biden issued a long-awaited executive order, “Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern” (the Executive Order or E.O.) on August 9, 2023, highlighting the risks these technologies and products pose to U.S. national security and marking the latest round in the ever-increasing competition between the United States and China.

The U.S. Securities and Exchange Commission adopted final rules on July 26, 2023, requiring public companies to provide current disclosure, within what may be a short time window, about material cybersecurity incidents and to include disclosure relating to cybersecurity risk management, strategy, and governance in annual reports.

Regulated gaming is booming in the United States. This is particularly true of newer forms of gambling, such as skill games, fantasy sports, and social casino games played on the internet and mobile applications.

Partner Pravin Rao and associate Gabriel Tong highlight how "controlling peson liability" claims have become increasingly common in securities litigation claims. Due to a circuit split in how these claims can be established, plaintiffs have taken advantage of the relatively low threshold required in some jurisdictions to establish a prima facie case of controlling person liability.

In recent years, the apparel, fashion, and luxury goods industries have seen an increased focus on environmental, social, and governance (ESG) initiatives.

A defendant’s knowledge of and subjective beliefs about the meaning of legal requirements—not what an objectively reasonable person may have believed—are what matters when determining whether a defendant “knowingly” submitted false claims for payment in violation of the False Claims Act, the U.S. Supreme Court ruled on June 1, 2023.

Senior Division of Enforcement officials from the U.S. Securities and Exchange Commission shared the stage on May 23, 2023, with SEC alumni, private practitioners, and other professionals in the field at the Securities Enforcement Forum West 2023.

On April 29, 2023, the U.S. Department of Justice, Antitrust Division, suffered another defeat in its ongoing efforts to criminally prosecute conduct affecting workers’ compensation and job mobility.

While sophisticated participants in private markets have historically been seen as capable of bargaining for information or withstanding losses better than mom-and-pop investors, current events signal that the U.S. Securities and Exchange Commission intends to increase regulation and scrutiny of private companies.

We are living through a spike in the number of criminal investigations and prosecutions exposed to public view that involve classified information.

The American Bar Association's 2023 Antitrust Spring Meeting, held in Washington, D.C., placed heavy emphasis on employees, contractors, and talent. Government officials, judges, academics, and the private bar debated cutting-edge competition issues affecting workers and labor markets, including criminal enforcement, amicus efforts, public engagement, and rulemaking. Prosecutors sent a clear message that they view no-solicitation, no-poach, and wage-fixing agreements as criminal violations, even in the face of several jury trial setbacks.

As with past banking crises, the recent failures of Silicon Valley Bank and Signature Bank will likely put the directors and officers of affected banking institutions in the proverbial crosshairs as regulators second-guess their decisions and look for potential sources of loss recovery.

The U.S. Department of Justice unveiled a new pilot program and announced several important updates to its Evaluation of Corporate Compliance Programs regarding corporate compensation incentives and clawbacks.

The U.S. Department of Justice announced significant new guidance on March 3, 2023, regarding the use of personal devices and the retention of corporate communications.

Deputy Attorney General Lisa Monaco delivered groundbreaking remarks at the American Bar Association National Institute on White Collar on March 2, 2023, heralding a new era of corporate enforcement aimed at addressing U.S. national security priorities.

Most of us would consider it unwise to head out on an important and uncertain journey with no prior planning or preparation.

When coming to an interview, several studies show that most witnesses have not yet decided on a specific strategy for the interview or whether they will be cooperative.

Perkins Coie is pleased to present the fourth edition of Labor Law Today—Year in Review, offering a summary of the past year’s most noteworthy and influential developments in traditional labor law.

The U.S. Department of Justice obtained more than $2.2 billion in civil False Claims Act judgments and settlements in fiscal year 2022, the lowest such annual total since 2008 and a significant drop from a jump in FCA recoveries in the prior year. But the DOJ’s announcement of its FY 2022 FYA recoveries also discloses that the DOJ is increasingly bringing FCA cases on its own, and the total number of settlements and judgments in FCA matters increased to near-record highs in FY 2022, signaling a robust enforcement climate ahead.

In an action of signal importance to any company that does business with the federal government or that receives government funds under a complex regulatory framework, the U.S. Supreme Court has agreed to review a key issue concerning the False Claims Act — the federal statute that imposes severe penalties for knowingly submitting false claims for payment to the government.

New sanctions and export controls targeting Russia in response to the invasion of Ukraine herald increased investigations and prosecutions through a targeted and aggressive interagency effort known as Task Force KleptoCapture.

The 27th United Nations Climate Change Conference of the Parties was held in Sharm el-Sheikh, Egypt, in November 2020. While much was discussed during the conference, this Update includes key takeaways that may be of greatest interest to business leaders.

The U.S. Department of the Treasury's Financial Crimes Enforcement Network issued a Notice of Proposed Rulemaking to address an outstanding issue in its final rule implementing the beneficial ownership information reporting requirements of the Corporate Transparency Act. 

The U.S. Department of Justice recently released new guidance announcing several policy changes to further strengthen and clarify its approach to prosecuting corporate crime. This guidance is applicable to all third-party text and social media messaging platforms.

According to a settlement with the Federal Communications Commission, Truphone Inc. repeatedly transferred control of its FCC licenses to unvetted foreign individuals and entities without oversight by the agency or the executive branch.

This Update analyzes three trends that make customized compliance programs more crucial than ever and provides guidance on how companies can begin to craft catered policies to fit their business needs.

The U.S. government issued guidance on October 14, 2022, emphasizing that the United States is “prepared to use its broad targeting authorities against non-U.S. persons” who continue to trade with Russia sanctions targets, particularly with private sector companies that support the Russian military.

On Sept. 15, 2022, Deputy Attorney General Lisa Monaco announced several significant policy updates affecting the U.S. Department of Justice’s enforcement practices for both corporations and individuals. This article discusses the steps companies should be taking now to ensure that their compliance programs incorporate the guidance.

The U.S. Department of the Treasury’s Financial Crimes Enforcement Network issued its highly anticipated final rule implementing the beneficial ownership information reporting requirements of the Corporate Transparency Act legislation on September 29, 2022.

At the Practicing Law Institute's SEC Speaks conference, held Sept. 8 – 9 in Washington, D.C., the U.S. Securities and Exchange Commission leadership espoused an ambitious agenda for both rulemaking and enforcement in 2022 and beyond. 

Deputy Attorney General Lisa Monaco announced several significant policy updates affecting the U.S. Department of Justice’s (DOJ) enforcement practices for both corporations and individuals

The annual SEC Speaks conference, in which SEC leadership highlights the agency’s current enforcement priorities and previews their agenda for the coming year, was held in Washington, D.C., on September 8-9. SEC leaders emphasized that regulation of the cryptocurrency market continues to be a top enforcement priority.

As discussed in this Update, the SEC’s enforcement agenda has ramifications on both the corporate and individual levels, including: (1) increased regulatory actions against market participants in cryptocurrency and blockchain-based token activities; (2) enhanced scrutiny over disclosures, including those related to digital assets, ESG matters, supply chain, and cyber incidents; and (3) a renewed focus on individual accountability.

On March 30, 2022, the Securities and Exchange Commission (SEC) proposed rules governing special purpose acquisition companies (SPACs).

The U.S. Department of Justice Procurement Collusion Strike Force secured a guilty plea on July 13, 2022, from a Texas military contractor for conspiring to rig bids on $17.5 million in government contracts.

JurorSearch CEO and Co-Founder Dan Johnson sits down with White Collar & Investigations Partner Markus Funk to discuss all things jury. They talk about how ever-evolving customized software solutions help prosecutors, civil litigators, and jury consultants better understand what makes their potential jurors tick, as well as help them ask the right voir dire questions to avoid bad selections.

National Security Presidential Memorandum-33 and implementation guidance from the National Science and Technology Council direct federal agencies to standardize and enhance disclosure and security requirements that apply to federally funded research and development.

The U.S. Department of the Treasury, on May 13, 2022, published its 2022 National Illicit Finance Strategy—a comprehensive statement of the agency’s key priorities, goals, and plans for safeguarding the U.S. financial system against illicit activity in order to “strengthen national security and prosperity.”

On May 12, 2022, senior Division of Enforcement officials from the U.S. Securities and Exchange Commission shared the stage with SEC alumni, private practitioners, and other professionals in the field at the Securities Enforcement Forum West 2022.

As Russia’s invasion of Ukraine persists, with no end currently in sight, the United States continues to issue increasingly punishing economic sanctions and export controls targeting Russia, most recently aiming at the exportation to Russia of certain categories of professional services.

Russia’s invasion into Ukraine in February 2022 has prompted the United States and its allies, including the United Kingdom, the European Union, and others, to issue substantial international trade restrictions including economic sanctions and export controls. In addition to earlier U.S. actions, the United States has issued further trade restrictions.

The U.S. Department of Justice, Antitrust Division (Antitrust Division) announced several significant updates to its Leniency Policy on April 4, 2022.

Perkins Coie is pleased to present the third edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

The U.S. Securities and Exchange Commission on March 21, 2022, proposed detailed and wide-ranging requirements for publicly traded companies to disclose their greenhouse gas (GHG) emissions and climate risks in their registration statements and annual or other periodic reports.

Following Russia’s recognition of breakaway regions in Ukraine and full-scale invasion of the country, authorities in the United States, United Kingdom, European Union, and across the globe imposed a sweeping array of trade and economic sanctions, export controls, and other financial countermeasures.

Almost all junior associates are introduced to internal investigations on the job. Given how important interviews with corporate employees can be to the investigational process, junior associates new to this tricky subject will want to understand the basics of the process. This article includes five critical tips for tangling with internal investigation work.

The U.S. Department of Justice Antitrust Division, on January 28, 2022, revealed the criminal prosecution of a conspiracy that allegedly suppressed wages and limited job mobility for essential healthcare workers.

On February 21, 2022, Russian President Vladimir Putin unilaterally recognized the Luhansk and Donetsk regions in Eastern Ukraine as independent states.

The U.S. Department of Justice recovered more than $5.6 billion in civil False Claims Act judgments and settlements in fiscal year 2021, the second largest ever annual total in FCA recoveries and the largest since 2014, DOJ announced on February 1, 2022.

This update was also published on February 17, 2022, here on NASBP.

The Delaware Chancery Court recently sustained the legal viability of a putative shareholder class action brought against a SPAC’s directors, officers, controlling shareholder, and financial advisor based on an allegedly false and misleading proxy statement.

Perkins Coie partners Kevin Feldis, David Daniels, and Jamie Schafer offer environmental, social and governance corporate resolutions for the new year and highlight key action steps to take, starting with prioritizing ESG and conducting an assessment.

The Financial Crimes Enforcement Network issued an Advance Notice of Proposed Rulemaking (ANPRM) on December 6, 2021, soliciting comments on the potential extension of the Bank Secrecy Act.

On December 7, 2021, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network issued a highly anticipated proposed rule that would implement key provisions of the Corporate Transparency Act.

The 26th United Nations Climate Change Conference of the Parties, wrapped up earlier this month in Glasgow, Scotland, after two weeks of negotiations. This update discusses how international agreements and U.S. policy announcements coming out of COP26 will affect businesses and provide opportunities in the months and years ahead.

U.S. Securities and Exchange Commission (SEC) Chair Gary Gensler outlined a vigorous enforcement approach in his keynote remarks at the annual Securities Enforcement Forum.

On New Year’s Day 2021, Congress passed the Anti-Money Laundering Act of 2020 (AMLA).

In this second episode of a Perkins Coie White Collar & Investigations series regarding False Claims Act (FCA) enforcement, firm attorneys Barak Cohen and Alex Canizares are joined by their guest, Pete Jensen, global chief compliance officer for Arthrex, Inc., one of the world’s largest medical device companies.

Rarely does a week pass in White Collar and Investigation or SEC-regulatory outside counsel life that an auditor or government enforcement attorney does not request some interim or final read-out. These requests for information can encompass investigative process and factual findings, lists of search terms, interview outlines, or similar investigative materials.

Deputy Attorney General Lisa Monaco delivered an exacting message to the white-collar defense bar at the ABA’s 36th National Institute on White Collar Crime—the U.S. Department of Justice is stepping up its enforcement of corporate crime through several new initiatives.

On October 15, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control released guidance on sanctions compliance for the digital currency industry, the agency’s most detailed guidance to date on its expectations for participants in this rapidly growing industry.

During a speech last week to a group of white-collar defense attorneys, John Carlin, a senior official at the Department of Justice (DOJ) confirmed what many in the white-collar and corporate compliance space have been preparing for since January: the DOJ is devoting a “surge” of resources to ramp up its white collar enforcement efforts.

On October 6, 2021, the U.S. Department of Justice (DOJ) announced an initiative to pursue civil False Claims Act (FCA) enforcement actions against government contractors that knowingly fail to follow required cybersecurity standards and reporting requirements.

Deputy Attorney General Lisa O. Monaco announced that the U.S. Department of Justice (DOJ) is stepping further into the cryptocurrency fray by creating the National Cryptocurrency Enforcement Team.

On New Year’s Day 2021, Congress passed the Anti-Money Laundering Act of 2020 (AMLA 2020).

When are communications with counsel that are for both legal advice and business purposes protected by the attorney-client privilege?

On New Year’s Day 2021, Congress passed the Anti-Money Laundering Act of 2020 (AMLA 2020). As we reported last April, the AMLA 2020 included sweeping reforms aimed at strengthening protections against money laundering, terrorism financing, and other illegal activities. In July, we examined the expansive new beneficial ownership reporting requirements added to the Corporate Transparency Act. In this second substantive installment of our multipart series on the AMLA 2020, we examine the changes made to the Bank Secrecy Act (BSA) whistleblower provisions.

In this first episode of a series that will explore emerging developments related to the False Claims Act (FCA), Perkins Coie attorneys Barak Cohen and Alexander Canizares are joined by guest Marc Bonora, to discuss practical issues and effective strategies for companies to mitigate risks related to FCA investigations and qui tam whistleblower lawsuits.

On July 19, 2021, CME Group Inc. (the CME), the parent company of derivatives exchanges including the Chicago Mercantile Exchange and New York Mercantile Exchange, issued a Market Regulation Advisory Notice amending prior guidance on prohibited disruptive trading practices.

Perkins Coie LLP White Collar & Investigations partners Lee S. Richards III and David B. Massey are joined by Eric F. Grossman, the Chief Legal Officer of Morgan Stanley, for an in-depth discussion of hot topics in the financial services enforcement area, including big banks’ readiness for another financial crisis; Environmental, Social, and Governance (ESG) investing; the “gamification” of trading; SPACs; corporate criminal investigations and resolutions; and the influence of politics on law enforcement. Mr. Grossman also reflects on the importance of diversity and inclusion in the legal profession.

This first substantive installment in our multipart series addresses arguably the most significant implication of AMLA 2020: a new and expansive requirement to disclose corporate beneficial ownership, set out by the Corporate Transparency Act.

In a significant decision on securities class actions, the Supreme Court last week held that the generic nature of alleged misrepresentations will often be “important evidence of a lack of price impact” that can be used by defendants to defeat class certification

The U.S. Department of Justice (DOJ)  announced on June 7, 2021, that a North Carolina engineering firm agreed to pay a $7 million fine and $1.5 million in restitution after pleading guilty to engaging in bid rigging and fraud in order to obtain contracts for infrastructure projects.

An oil industry giant just lost a proxy battle that unseated incumbents and installed at least two new independent board members in a move that is expected to put a focus on the company’s approach to climate action and reducing emissions—putting to rest any doubt that the landscape in which businesses operate has been fundamentally transformed.

Perkins Coie LLP White Collar & Investigations partners Lee Richards and Margaret Meyers are joined by the Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit to discuss litigating in the federal district and appellate courts.

Perkins Coie White Collar & Investigations Partner Caryn Trombino talks with Stephen Ravas about his experience in various roles at several federal Offices of Inspector General.

Join Perkins Coie white collar investigation partner, Caryn Trombino, as she provides an overview of survivor-centered, trauma-informed techniques and how they can be a powerful tool in white collar-investigations.

Employees’ use of unapproved messaging platforms for business-related communications—and their employers’ failure to monitor and preserve such communications, even if inadvertent—may also cause employers to provide incomplete responses to subpoenas or requests for information issued by prosecutors, enforcement staff, or private civil parties.

On New Year’s Day 2021, Congress overrode a presidential veto to pass the Anti-Money Laundering Act of 2020 (AMLA 2020), which amends and modernizes the Bank Secrecy Act (BSA).

With increasing frequency, securities and commodities regulators are focusing on employees’ use of personal mobile devices for business-related communications via applications that are not approved by employers or captured by employers’ archival systems.

The U.S. Supreme Court will hear oral argument on March 29 on a critical question for securities class action defendants: On a class certification motion, what evidence must a defendant put forward to show that the alleged misrepresentations had no impact on the defendant’s stock price, thus rebutting the Basic presumption of class-wide reliance?

White Collar Partner Kevin Feldis speaks with Tony Davis, chief executive officer and chief information officer of Inherent Group, a value-based investment company that uses environmental, social and governance factors to make investment decisions.

Chelsea Curfman and Markus Funk are joined by Professor Mike Koehler, better known as the “FCPA Professor.” In 2009, Koehler launched his “FCPA Professor” blog, described as “the Wall Street Journal concerning all things FCPA-related.”

Antitrust lawyers Jon Jacobs and Kevin Schock join host Markus Funk to discuss the fundamental legal principles applicable to no-poach and wage-fixing agreements, explore current government enforcement priorities related to these types of agreements, and evaluate examples of recent enforcement activity in the no-poach and wage-fixing space.

Cam Simpson and Markus Funk discuss Cam's diverse career, with a particular focus on Cam's work relating to human trafficking and other forms of forced labor.

As the government revives its Paycheck Protection Program (PPP) with hundreds of billions of dollars in additional loans available to small businesses, there are fresh signs that government fraud investigations and whistleblower litigation related to the loan program are ramping up.

The U.S. Supreme Court recently cast doubt on the criminal convictions of the one-time “King of Political Intelligence” David Blaszczak and three others for their role in an insider trading scheme.

Before opening a dialogue with the government, defence counsel and defendants should ensure that they understand the potential risks as well as the possible rewards of cooperation with the U.S. government, and that they are clear about regulators’ expectations and are prepared to meet those expectations.

The U.S. Department of Justice (DOJ) recovered more than $2.2 billion in settlements and judgments from civil cases under the False Claims Act (FCA) in the fiscal year ending September 30, 2020.

Perkins Coie is pleased to present the second edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

In this episode, Paul Hirose, former president of the National Asian Pacific American Bar Association and co-chair of Perkins Coie’s Supply Chain Compliance and Corporate Social Responsibility practice, speaks with Leyla Seka about her leadership in confronting gender equality and racial equity issues in the tech industry.

Markus Funk talks to Jim about his experience at Tate & Lyle and discuss how white collar practitioners can collaborate with management to foster a compliance-oriented atmosphere, while helping business units to accomplish their goals.

Markus Funk and Kevin Feldis speak with Corey Norton, Vice President for Supply Chain Legality at the World Wildlife Fund (WWF), about the important role that non-governmental organizations (NGOs) can play in corporate supply chain compliance.

Top enforcement officials from the U.S. Securities and Exchange Commission recapped the agency’s accomplishments over the past fiscal year and previewed its upcoming enforcement priorities at this year’s SEC Speaks conference, held on October 8 and 9, 2020.

Education trailblazer Lana Israel, Ph.D., and entertainment legend Bob Doyle, co-founded and closely collaborate on Nashville-based education technology (edtech) company Muzology. They join host Markus Funk to discuss their disruptive platform.

After a positive year of financial fraud enforcement in fiscal year 2019, the U.S. Securities and Exchange Commission's Division of Enforcement posted quality cases in fiscal year 2020.

The white collar bar “got together” for a virtual discussion on the current landscape of the practice on September 23, 2020.

In this episode of White Collar Briefly, Perkins Coie’s David Biderman, firmwide chair of the Consumer Products & Services Litigation group, sits down with Craig Lackey, general counsel of Rushmore Loan Management Services, a major servicer of residential mortgages nationwide.

Kevin Feldis, a former federal prosecutor, talks with retired Special Agent Colton Seale about recent research on conducting interviews in way that improves results. Colton spent 22 years with the FBI, including serving as a member of the High Value Detainee Interrogation Group (HIG), interviewing suspects around the world.

Markus Funk welcomes two Chicago-based guests, Jeremy Gottschalk of Sittercity.com and Marketplace Risk and the Hon. Virginia M. Kendall of the U.S. District Court for the District of Northern Illinois.

In this episode of White Collar Briefly, Perkins Coie’s Barak Cohen, David Fletcher, and Alexander Canizares discuss the landscape for increased fraud investigations and enforcement actions related to COVID-19 stimulus spending, including False Claims Act investigations and qui tam whistleblower litigation, as well as steps companies can take to reduce their potential exposure.

In Part 2 of our examination of internal investigation trends in India, Perkins Coie partners Markus Funk and Chelsea Curfman speak with Arpinder Singh, a partner with EY Forensics & Integrity Services and head of their India and Emerging Markets group.

The U.S. Department of Justice has issued an opinion letter (catalogued as FCPA Opinion No. 20-01) stating that it does not intend to take enforcement action under the FCPA against a U.S.-based investment advisor planning to pay something akin to a “finder’s fee” to a foreign state-owned investment bank.

Continuing our series of episodes regarding investigation and enforcement trends around the globe, Perkins Coie partners Markus Funk and Chelsea Curfman interview Sherbir Panag, firm co-founder and head of the Compliance and Investigations Practice at the Law Offices of Panag & Babu, in New Delhi, India.

As colleges and universities reopen, the potential for another shutdown and lawsuits over refunds for tuition, fees, and health and safety looms.

In United States ex rel. Wollman v. Massachusetts Gen. Hosp., Inc., No. CV 15-11890-ADB, 2020 WL 4352915 (D. Mass. July 29, 2020), yet another district court agreed with the U.S. Court of Appeals for the D.C. Circuit’s decision in In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014), holding that, although the defendants waived it here, attorney-client privilege applies to internal investigations.

As employers open or expand access to workplaces, safety considerations remain paramount during the continuing COVID-19 pandemic.

On this episode of White Collar Briefly, the first of our series of episodes regarding global trends in internal investigations and enforcement, Ilaria Curti, head of the Internal Investigations Group at Portolano Cavallo in Rome, and Perkins Coie Partner Chelsea Curfman discuss how recent amendments to Italy’s anti-corruption laws are starting to affect both when and how companies choose to conduct internal investigations, as well as attitudes toward self-reporting of potential wrongdoing.

Ben Purser, chief risk officer for mortgage lender, Roundpoint Mortgage Servicing Corporation, and Barak Cohen, partner in Perkins Coie’s White Collar & Investigations practice and lead for the firm’s Commercial Litigation in Washington, D.C., discuss the challenges of legal compliance and risk in an industry that has been directly affected by two global financial crises in one decade.

The U.S. Food and Drug Administration (FDA) submitted a report to Congress on July 8, 2020, providing an analysis of the cannabidiol (CBD) marketplace.

On this episode of White Collar Briefly, Perkins Coie’s White Collar & Investigations practice attorneys Markus Funk and Lili Timmermann interview special guest (and colleague) retired Colorado Supreme Court Chief Justice Mike Bender.

This update provides some recent lessons learned with remote depositions that apply to both those who take and defend remote depositions.

Dave Eggers and Markus Funk have a candid and probing conversation about today’s calls for fundamental criminal justice reform.

The University of Colorado’s Interim Executive Vice Chancellor and Chief Operating Officer Patrick O’Rourke discusses experiences including his path from private practitioner to the GC and then COO of one of the Nation’s premier educational institutions.

A conversation with Ross Mansbach, deputy general counsel at Avanos Medical, a publicly-traded medical device and technology company about the impacts of COVID-19, the transition to remote working, and what it all may mean for corporate legal departments and their relationships with outside counsel.

A candid conversation with Joel Esquenazi about, among other things, his time as a defendant in the high-profile U.S. v. Esquenazi trial.

As countries around the world overcome the first wave of coronavirus infections, one thing is becoming apparent: Remote working will almost certainly become a permanent fixture of modern life for many.

The U.S. Department of Justice on June 1, 2020, released another update to its “Evaluation of Corporate Compliance Programs” (the 2020 Update).

The new focus on remote witness interviews and testimony—a focus many believe will outlive the COVID-19 virus—presents new issues and implicates the way government and white collar defense lawyers investigate facts, interact with each other, and handle documents.

Internal investigators and their in-house clients are familiar with having to explain their investigative methodology to the client's outside auditors or government regulatory and enforcement agencies like the DOJ and SEC.

Judge Virginia Kendall covers a wide range of topics with former AUSA colleague, Markus Funk.

On this episode of White Collar Briefly, attorneys, Markus Funk and Chelsea Curfman, interview special guest, Caroline McMichen, global ethics and compliance chief for Molson Coors Beverage Company, about the hallmarks of a successful internal investigation.

A new $2 million SBA safe harbor for PPP loans appears to create a wide umbrella that substantially reduces the risk that adverse consequences will rain down and soak companies with loans in this category.

A new $2 million SBA safe harbor for PPP loans appears to create a wide umbrella that substantially reduces the risk that adverse consequences will rain down and soak companies with loans in this category.

Borrowers who, together with their affiliates, received Paycheck Protection Program (PPP) loans in an aggregate amount less than $2 million will be deemed to have made their certification that the loan was “necessary” in good faith, according to new guidance issued by the U.S. Small Business Administration (SBA).

Two new prosecutions announced by the Department of Justice mark some of the first prosecutions under the PPP, and signal where and how the government will be looking for wrongdoing.

“Trust, but verify.” This has gained new currency in the context of the Department of Treasury and the Small Business Administration’s April 23 and April 28 guidance concerning “necessity” certification of Paycheck Protection Program loans and a new interim final rule issued April 30 limiting loans to corporate groups.

Companies seeking PPP loans must certify they have an “economic necessity” to obtain these loans.

Businesses that receive government funding under the nearly $2 trillion Coronavirus Aid, Relief, and Economic Security Act (CARES Act) should be mindful of the heightened risks of government investigations of fraud, waste, and abuse, for several reasons.

This update was also posted on the Coronavirus (COVID-19): Guidance for Businesses blog.

It’s been one year since federal agents made dozens of arrests in the nationwide college admissions scandal. Funk and Trombino provide four guideposts to help colleges and universities needing to investigate allegations of misconduct steer themselves, and their communities, through such moments of crisis.

In this article, Judge Kendall and Markus discuss why the coronavirus pandemic threatens to trigger a new wave of human rights violations if companies are not careful to root out forced labor in supply chains. They conclude that companies must have effective compliance programs in place and bolster supply chain vigilance to ward off potentially business-ending scrutiny.

Any crisis—especially one as drastic and unprecedented as COVID-19—heightens the risks of fraud, waste, and abuse. Perkins Coie attorneys examine recent Justice Department actions and say even companies that don’t receive funds specifically tied to the federal government’s response to the outbreak should bear in mind the risks of potential exposure to fraud allegations. 

White collar attorneys regularly discover crimes like theft, bribery, and embezzlement committed by current or former employees and competitors. This article analyzes how mandatory reporting laws, like Colorado’s, provide formal legal “cover” for disclosure of suspected misconduct and suggests best practices for reporting crimes to authorities on behalf of clients.

The U.S. Department of Justice (DOJ) has reached a settlement with hospice company AseraCare, closing a 12-year-old saga that carries substantial implications for False Claims Act (FCA) enforcement in cases involving a clinician’s medical judgement.

The federal Food and Drug Administration (FDA) just released a report to Congress regarding the agency’s progress toward comprehensive regulation of hemp-derived cannabidiol (CBD).

 When the DOJ is deciding whether to charge a company with a criminal antitrust violation, or agreeing to a deferred prosecution agreement (DPA), the effectiveness of a company’s antitrust compliance program is only one factor.

The U.S. Department of Education (DOE) recently launched investigations into at least a half dozen top research institutions for failing to disclose foreign-sourced gifts or contracts.

This article focuses on four important areas related to False Claims Act (FCA) investigations and litigation that companies and their counsel should be aware of: the DOJ’s recent cooperation credit guidelines; cybersecurity and FCA liability; differing interpretations of the U.S. Supreme Court’s Escobar decision and the DOJ’s increased exercise of its authority to seek dismissal of FCA lawsuits.

Co-sponsored by the American Bar Association’s Global Anti-Corruption Committee, this series looks at the high-stakes world of white-collar defense, investigations, compliance, and litigation.

The U.S. Court of Appeals for the Second Circuit issued an opinion in United States v. Blaszczak on December 30, 2019 that could significantly affect the prosecution of criminal insider trading cases.

The Department of Justice (DOJ) recovered more than $3 billion in settlements and judgments from civil cases involving the False Claims Act (FCA) in the fiscal year ending September 30, 2019, according to statistics released by DOJ on January 9, 2020.

The German Federal Ministry of Justice and Consumer Protection recently presented draft legislation to Parliament that could pose a marked shift in how corporate crimes are sanctioned in Germany.

In an August 2019 case argued by Perkins Coie attorneys, the U.S. Bankruptcy Court for the District of Delaware ruled that the automatic stay under section 362(a) of the Bankruptcy Code bars the Centers for Medicare & Medicaid Services (CMS) from withholding Medicare payments to a healthcare provider in bankruptcy notwithstanding a pre-petition suspension due to credible allegations of fraud.

Following the recent public hearing held by the Food and Drug Administration (FDA) regarding the safety and efficacy of cannabidiol (CBD), many in the food and beverage industry asked how long it will take for the agency to establish a regulatory pathway for approval of CBD as a food additive.

The U.S. Department of Justice (DOJ) announced a new policy on July 11, 2019, designed to incentivize the development and implementation of corporate antitrust compliance programs. 

On May 31, 2019, the Food and Drug Administration (FDA) held its first public hearing concerning products containing cannabis or cannabis-derived compounds (in particular, cannabidiol (CBD), a popular additive to food, beverages and supplements).

Whistleblowers bringing qui tam suits under the False Claims Act have up to ten years to file suit against defendants in cases in which the government declines to intervene, the U.S. Supreme Court has held, rejecting a government contractor’s argument in favor of a shorter limitations period.

At this year’s PLI “SEC Speaks” conference held April 8-9, 2019, in Washington, D.C., the U.S. Securities and Exchange Commission’s leadership and staff showcased its 2018 successes and outlined initiatives that the SEC intends to pursue in 2019 and beyond.

The U.S. Securities and Exchange Commission (SEC) Strategic Hub for Innovation and Financial Technology (FinHub) published a framework on April 3, 2019, for analyzing whether a digital asset is offered and sold as a security under the federal securities laws.

The U.K. Modern Slavery Act of 2015, which was modeled after the California Transparency in Supply Chains Act, requires companies falling under its jurisdictional hook (and there are many) to honestly and completely disclose their efforts to eradicate trafficked, slave, indentured, coerced and child (collectively “forced”) labor from their supply chains.

From 2010 to 2015, the Antitrust Division of the U.S. Department of Justice filed criminal charges against more than 120 corporations and more than 350 individuals, and collected fines and penalties of more than $8 billion.

The wave of federal charges against some fifty individuals for college admissions fraud and testing bribery schemes caught numerous universities and much of the United States by surprise.

Enforcement of the Foreign Corrupt Practices Act has firmly entered a new era of transparency under U.S. Department of Justice Assistant Attorney General Brain Benczkowski with incentives for companies to have robust compliance programs and rewards of avoiding prosecution for self-disclosure and cooperation.

This series, written by recent in-house counsel and federal prosecutors, takes a practical approach to helping in-house legal and compliance teams, operating in a world of complex regulatory schemes and increased whistleblower activity, avoid the types of seemingly minor or inconsequential missteps that can lead to aggressive government responses, including parallel civil and criminal investigations. In part two, the authors explain what to do when a search warrant is served and how to prepare for government interviews with employees. 

The legal Canadian cannabis industry is booming, and U.S. companies can benefit from the prospering cross-border industry by partnering with Canadian companies.

President Trump signed the Agriculture Improvement Act of 2018 (popularly known as the 2018 Farm Bill) into law on December 20, 2018.

The end of the year has been a very busy time for the SEC in the digital asset space. From speeches to the issuance of joint statements to enforcement actions, there are many things to highlight, discuss and consider.

On November 30, 2018, the solicitor general filed an amicus brief in the U.S. Supreme Court supporting the relators’ opposition to certiorari in Gilead Sciences, Inc. v. United States ex rel. Campie, et al., No. 17-936. Yet the government’s brief disclosed for the first time that it would dismiss the relators’ qui tam complaint on remand, allegedly because discovery would interfere with federal agency responsibilities.

Known by many names, including business email compromise fraud, CEO or CFO fraud, impersonation attacks, or “Man-in-the-Email” scams, cyber-related frauds involving spoofed or otherwise compromised business electronic communications continue to be an increasingly pervasive threat to businesses of all sizes, including public companies.

The DOJ announced a “road map” for the healthcare industry last month to guide voluntary self-disclosures and cooperation with government investigations.

In a flurry of enforcement activity in the digital asset space, the SEC and FINRA, a self-regulatory organization for broker-dealers, announced three new enforcement actions addressing digital asset practices last month.

Commonly, and frequently for some, companies find themselves facing the daunting proposition of reporting an actual or potential violation of law to a government authority. 

In what is believed to be the first criminal case examining whether so-called “initial coin offerings” (ICOs) are securities under U.S. law, Judge Raymond J. Dearie of the Eastern District of New York refused to dismiss the indictment against Maksim Zaslavskiy for a deceptive virtual currency scheme and fraudulent ICOs by REcoin Diamond Reserve Club.

The SEC proposed three rule changes last week to the commission’s whistleblower program, including one that would authorize the SEC to “downward adjust” monetary awards in large actions for which an award might “exceed an amount that is reasonably necessary to advance the program’s goals”—in the view of the commission.

Approximately 17 months into this administration, we can better assess the consequences of the administration’s dual—and sometimes dueling—agendas of deregulation and deconstruction, and forecast how these priorities may affect agency action going forward.

During a speech in San Francisco last week at the Yahoo Finance All Markets Summit, William Hinman, Director of the Division of Corporation Finance of the Securities and Exchange Commission (SEC), provided some welcome clarity regarding the applicability of the federal securities laws to digital assets and tokens projects.

This update was published in ABA Business Law Today  "Ether Is Not A Security: Summary of SEC Division of Corporation Finance Director Hinman’s Remarks," on 06.2018.

Every administration brings disruption. For one thing, a host of new political appointees arrives to take the helm of a vast federal bureaucracy of some three million civilian employees, and comprised of fifteen Cabinet-level departments and hundreds of agencies, boards, bureaus, and commissions. In this sense, the Trump Administration was not unique.

The first year of the Trump administration saw the DOJ continue the Obama administration’s focus on protecting U.S. intellectual property interests by investigating and prosecuting trade secret cases, especially those involving foreign interference and national security concerns.

In recent guidance, we wrote about what companies should do to minimize the risk of federal criminal penalties when doing business with or investing in cannabis industry companies.

Three Perkins Coie attorneys discuss a recent order from the Southern District of New York affirming the broad reach of U.S. antitrust law. The authors note that the decision raises several considerations relevant to international companies managing antitrust risk.

In recent guidance, we wrote about what companies should do to minimize the risk of federal criminal penalties when doing business with or investing in cannabis industry companies. 

In early January 2017, just weeks before Donald Trump was to take the helm as the president of the United States, we assessed the government’s efforts to protect against the persistent financial and strategic threat posed by the theft of valuable intellectual property from U.S. companies by foreign agents and others.

The Antitrust Division of the DOJ hosted a roundtable discussion on criminal antitrust compliance programs a few weeks ago, and the event underscored why it is critical for companies to adopt compliance programs that will detect any violations committed by their employees.

We offer some key takeaways from ABA's Antitrust Law Spring Meeting, including the impact of leadership changes at the federal agencies, recent enforcement activities and signals regarding future priorities.

What is the current state of federal enforcement as to cannabis? Are there ways that companies not directly involved in the cannabis industry may still do business with companies in the industry, while minimizing potential exposure to federal criminal penalties under the CSA?

A version of this article was originally published by Bloomberg BNA White Collar Crime Report on April 18, 2018.

On Tuesday, a unanimous U.S. Supreme Court held that state courts have jurisdiction to hear “covered” class-action claims under the Securities Act of 1933, and that defendants may not remove such claims to federal court.

Last year saw continued aggressive Foreign Corrupt Practices Act enforcement by the U.S. Department of Justice and all indicators are that investigations are not going to slow down in 2018.

At this year’s PLI “SEC Speaks” conference held February 22-23, 2018, in Washington, D.C., the U. S. Securities and Exchange Commission’s senior leadership showcased its 2017 accomplishments, and previewed priorities for 2018 and beyond.

Highlighted in  Law360's: "In Case you Missed It:  Hottest Firms And Stories On Law360," on 03.02.2018.

The United States Supreme Court last week held in Digital Realty Trust, Inc. v. Somers that when a whistleblower reports suspected violations of securities laws internally, but not to the SEC, the whistleblower is not entitled to the protections of the Dodd-Frank Act’s anti-retaliation provisions.

The U.S. Securities and Exchange Commission (SEC) issued its first formal interpretative release on public company disclosure obligations relating to cybersecurity since the SEC Division of Corporation Finance’s guidance in 2011.

This update was republished in Bloomberg BNA's White Collar Crime Report on 03.16.2018, "New SEC Cybersecurity Guidance Reflects Clayton's 'Light Touch'," and Bloomberg's Big Law Business on 03.13.2018, "SEC on Cybersecurity: Jay Clayton’s “Light Touch."

A recent decision of the U.S. Court of Appeals for the Ninth Circuit cut back on the protections afforded by the safe-harbor provision of the Private Securities Litigation Reform Act of 1995 for public companies whose forward-looking statements are alleged to be false or misleading.

In a 5-4 decision in California Public Employees’ Retirement System (CalPERS) v. ANZ Securities, Inc., et al. (No. 16-373), 582 U.S. ___ (2017), the U.S. Supreme Court upheld, at the end of last month, a U.S. Court of Appeals for the Second Circuit decision dismissing as untimely a lawsuit filed by CalPERS against underwriters of public securities offerings by global investment bank Lehman Brothers.

Three Perkins Coie attorneys examine a recent decision by a U.K. court rejecting privilege claims by a multinational mining conglomerate under criminal investigation by the U.K. Serious Fraud Office. The authors warn that companies must remain vigilant and take proper steps during internal investigations to preserve privilege protections while also balancing cooperation with enforcement agencies.

Investigations and enforcement actions by the SEC and DOJ targeting potential illegal insider trading by foreign nationals, particularly by those in China, are increasing significantly.

For many companies, protecting intellectual property is a significant concern made more difficult in recent years by the persistent efforts of foreign agents to steal valuable trade secrets.

Computer systems around the world have been impacted by the largest cyber-extortion attack in history.

This update has been republished in Computerworld on 05.30.2017, "Answering the WannaCry Wake-up Call."

In City of Dearborn Heights Act 345 Police & Fire Retirement System v. Align Technology, Inc. (Dearborn), the Ninth Circuit established additional requirements for pleading securities fraud claims based on statements of belief under Section 10(b), which already must be stated with particularity. Prior to the decision, a statement of belief qualified as a misrepresentation or omission if “there [was] no reasonable basis for the belief.”

The American Bar Association’s 65th Antitrust Law Spring Meeting held at the end of March included a number of sessions with representatives from federal and state antitrust enforcement agencies.

The Foreign Agents Registration Unit of the U.S. Department of Justice has updated its website to make available to the public searchable and downloadable informational materials filed by foreign agents. Informational materials are documents or other communications distributed on behalf of a foreign principal to two or more people.

In Somers v. Digital Realty, the Ninth Circuit joins the Second Circuit in holding that whistleblower protections apply to individuals who report securities violations internally, not just to those who report to the Securities and Exchange Commission.

At the annual “SEC Speaks” conference held February 23-24, 2017, in Washington, D.C., the U.S. Securities and Exchange Commission’s senior leadership reviewed the agency’s efforts in 2016 and previewed future trends.

This update was also published in Law360 on 02.27.2017, "SEC Speaks '17: Changing Priorities Amid Agency Transitions."

The SEC’s recent enforcement actions addressing severance agreement language that may violate whistleblower protections under the federal securities laws were the subject of an article by Perkins Coie attorneys Luis Mejia, Stewart Landefeld, Eric DeJong and Ann Marie Painter.

For many companies, protecting intellectual property is a significant concern made more difficult in recent years by the persistent efforts of foreign agents to steal valuable trade secrets. Analysis of public sources indicates that under the Obama administration, the U.S. government has made substantial efforts to combat this theft through an increase by the U.S. Department of Justice (DOJ) in the number of criminal trade secret prosecutions.

This update was republished in Law360 on 01.06.2017, "Criminal Trade Secret Prosecutions Under President Trump."

Amnesty International recently released a report alleging that supply chains for production of palm oil—a common ingredient in many consumer products—are tainted by forced and child labor.

In a recent speech, SEC Enforcement Director Andrew Ceresney confirmed the SEC’s continued pursuit of investigations and enforcement actions relating to issuer reporting and disclosure, an area that remains a high priority for the SEC and other regulators.

The U.S. Commodity Futures Trading Commission (CFTC) proposed amendments last month to the regulations governing its whistleblower bounty program.

The Antitrust Division of the U.S. Department of Justice is vigorously pursuing civil and criminal actions against individuals—and not simply the companies they run. 

This update was also published in China Business Review on 03.17.2017, "Antitrust Division Focuses Enforcement Efforts on Individuals Behind International Cartels."

The International Consortium of Investigative Journalists (ICIJ), collaborating with German newspaper Süddeutsche Zeitung, in spring 2016 began leaking approximately 11 million internal documents obtained without permission from Panamanian law firm Mossack Fonseca by an anonymous whistleblower.

The SEC announced two administrative settlements in June, with a fund administrator that provided accounting and fund administration services to several private funds based on its alleged failure to heed red flags and correct faulty accounting by two private fund managers.

This update was republished in the Journal of Investment Compliance May 2017 issue, " SEC Charges Private Fund Administrator With Gatekeeping Failures ."

The U.S. Supreme Court handed down an important decision on June 16, 2016 that expands the scope of liability under the False Claims Act, 31 U.S.C. §§ 3729-3733.

Recently, John C. Cruden, DOJ’s Assistant Attorney General in charge of the Environmental and Natural Resources Division, which oversees DOJ’s environmental litigation, voiced a heightened commitment to enforcing environmental laws through criminal prosecution.

Several recent public statements make it clear that both the DOJ and the SEC are focused on finding fraud and other civil and criminal violations at private Silicon Valley companies.

The U.S. Supreme Court is poised to resolve a circuit split over the False Claims Act (FCA) that could have broad implications for those that do business with the federal government.

The American Bar Association held its 64th annual Antitrust Law Spring Meeting April 5–8, 2016, in Washington, D.C.  Over 3,000 practitioners, enforcers, economists and academics from around the world came together to discuss and share views on the hottest antitrust topics of the day.

In a move that follows long-standing complaints from the corporate community and the FCPA defense bar concerning the government’s vague assurances of “cooperation credit” in FCPA resolutions for self-reporting companies, on April 5, 2016, DOJ officials announced a new one-year FCPA “pilot program” with a Guidance that outlines a concrete set of standards defining what constitutes cooperation and what credit companies can expect to earn for that cooperation.

The SEC’s recent aggressive enforcement posture against chief compliance officers has raised many concerns, including whether the SEC’s actions are actually chilling robust compliance efforts.

This update was featured in Today's General Counsel on 03.17.2016 as "Is SEC Monday Morning Quarterbacking, By Targeting Compliance Officers?"

At the annual “SEC Speaks” conference held February 19-20, 2016, in Washington, D.C., the U.S. Securities and Exchange Commission’s senior leadership reviewed the agency’s efforts and priorities in 2015 and previewed upcoming trends for 2016 and beyond.

This Update was also published in Law360 in February 2016.

The U.S. Department of Justice issued a Memorandum to all U.S. Attorneys and entered into a Memorandum of Understanding (MOU) with the U.S. Department of Labor on December 17, 2015 to bolster the federal government’s arsenal to hold employers criminally liable for worker safety and health violations.  

This article, written by partners Hartmann Young and T. Markus Funk, examines the application of recent federal human trafficking rules for federal contractors.

The SEC’s recent activity is part of a larger regulatory enforcement trend that should serve as a warning to all public companies that they would be wise to review and revise their cybersecurity policies, procedures and practices to ensure that they are adequate in today’s changing environment.

The U.S. District Court for the Southern District of New York recently held that the FDA may not constitutionally bring a misbranding action based on truthful and non-misleading off-label promotion of an FDA-approved drug, thereby helping to clarify lingering uncertainty over the scope of First Amendment protection afforded statements by drug representatives, at least in states located in the Second Circuit.

The U.S. Department of Justice—widely criticized for the perceived lack of cases brought against corporate executives— on September 9, 2015 issued to all U.S. attorneys a new directive designed to hold more individuals accountable for illegal corporate conduct.

The Delaware Chancery Court ordered Dole Food Co. Inc. CEO David Murdock and General Counsel Michael Carter to pay Dole shareholders $148 million for fraud in connection with the company’s 2013 take-private deal. The August 27, 2015 decision is one of the largest awards ever to shareholders in a deal-related lawsuit.

On August 11, 2015, In re Kellogg Brown & Root, Inc. No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), the U.S. Court of Appeals for the D.C. Circuit issued an important opinion vacating another series of rulings by the U.S. District Court for the District of Columbia that had required Kellogg Brown & Root, Inc. (KBR) to produce privileged internal investigation documents.

Companies doing business in the United Kingdom take note: the U.K. government just made the not-so-long-awaited announcement that businesses with an annual turnover of 36 million British pounds (£36M) will be subject to the reporting requirements of the U.K. Modern Slavery Act of 2015 (U.K. Act).

A recent SEC enforcement action highlights the possibility that a confidentiality provision may, in some circumstances, violate certain whistleblower protections under the federal securities laws. While companies must be attuned to these protections, there is language that companies can consider to address the SEC’s concerns.

The SEC recently announced an administrative settlement against Commonwealth Capital Management, LLC (CCM), a mutual fund adviser, and the members of the boards of two mutual funds for their failure to properly evaluate fund advisory contracts.

This article examine how cyber scam works, how to protect against the scam, steps to take if the scam hits your company and insurance coverage for scam damage.

A simple yet highly effective and increasingly common cyber scam, based on social engineering and playing on fear, the desire to be helpful and other emotions, has caused U.S. companies of all sizes to lose millions of dollars in recent months.

The United States Supreme Court handed False Claims Act (FCA) defendants a mixed decision on May 26, 2015.  In a win for defendants, the Supreme Court held that the statute of limitations for False Claims Act lawsuits was not suspended for the duration of the Iraq and Afghanistan conflicts.

This article, written by partner T. Markus Funk, senior counsel Paul Hirose and associate Elizabeth Breakstone, examines the U.K. Modern Slavery Act of 2015 and how it will affect companies doing business in the U.K.

In an important advisory opinion, the U.S. Department of Health and Human Services Office of Inspector General (OIG) gave a thumbs-down to a proposed clinical laboratory “pull-through” arrangement even though the patients in question were not federal healthcare program beneficiaries and the physician practices derived no direct financial benefit from the arrangement.

Securities issuers breathed a collective sigh of relief last week when the U.S. Supreme Court ruled in Omnicare Inc. et al. v. Laborers District Council Construction Industry Pension Fund et al. that Section 11 of the Securities Act does not apply strict liability to statements of opinions.

As made clear in the DOJ and SEC’s joint Resource Guide to the Foreign Corrupt Practices Act (FCPA), U.S. prosecutors view foreign nationals as liable under the FCPA—regardless of whether they have taken any action in the United States—in cases where they aided and abetted, conspired, or acted as an agent of an issuer or domestic concern. However, the practical implications of enforcing the FCPA against individuals residing outside the U.S. raises a litany of questions about how, and when, foreign nationals can contest criminal allegations against them brought in U.S. courts. A recent denial of certiorari from the U.S. Supreme Court in Kim v. USDC CD CA, et al., left muddled the question of whether a foreign national can challenge an indictment from abroad.

The U.S. Securities and Exchange Commission touted an expansive regulatory agenda at this year’s "SEC Speaks" conference, held Feb. 20-21, 2015, in Washington, D.C.

The U.S. Securities and Exchange Commission (SEC) touted an expansive regulatory agenda at this year’s “SEC Speaks” conference, held February 20-21, 2015, in Washington, D.C.  

Companies that contract with the federal government will soon be subject to new rules aimed to stamp out human trafficking (see discussion of some of the existing rules and regulations here and here).

In United States v. Newman, the U.S. Court of Appeals for the Second Circuit dealt a substantial blow to federal prosecutors’ epic crackdown on insider trading by raising the bar for the government’s burden of proof in “remote tippee” cases that have plagued the financial industry in recent years.

This article examines the circumstances under which traditional authorities, such as aboriginal “band” (otherwise referred to as “tribal” or “traditional authority”) leaders, may qualify as “foreign officials” under the FCPA.

This article examines the circumstances under which traditional authorities, such as aboriginal “band” (otherwise referred to as “tribal” or “traditional authority”) leaders, may qualify as “foreign officials” under the FCPA.

Taking aim at credit card issuers who promote offers to consumers such as “convenience checks,” deferred interest/promotional interest rate purchases and balance transfers, the Consumer Financial Protection Bureau (CFPB) released a Bulletin on September 3, 2014, putting those issuers on notice of the risk that those practices could constitute deceptive and/or abusive acts.  CFPB Director Richard Cordray criticized such interest rate promotions, maintaining that the offers “lure in consumers and then hit them with surprise charges.”  

Criminal Defense Victories in the Federal Circuits by Matt Kaiser is a highly recommended book for anyone who does white collar criminal defense work.

In another installment of the continuing saga surrounding the shuttering of the Silk Road online marketplace and arrest of its alleged creator and operator, Ross William Ulbricht (Ulbricht), a Southern District of New York judge denied Ulbricht’s motion to dismiss the four-count indictment against him.

Following oral arguments heard on April 29, 2014, the U.S. Supreme Court has unanimously ruled that police must obtain a warrant prior to conducting a search of a cell phone seized from an individual who has been arrested. White Collar Briefly previously examined the arguments underlying the two companion cases on the issue, Riley v. California and United States v. Wurie—which implicated both individual privacy interests in cell phone contents as well as law enforcement’s interests in police safety and the preservation of evidence. 

More than 100 members of the Mexican legal and business communities gathered in Mexico City on March 25 and 26, 2014 to attend the American Conference Institute’s First Annual Mexico Summit on Anti-Corruption.

On April 22, the U.S. Department of Health and Human Services (HHS) announced settlements with both Concentra Health Services (Concentra) and QCA Health Plan, Inc. (QCA).  Through these latest settlements, HHS is reiterating its message to covered entities and business associates that laptops and similar devices containing electronic protected health information (ePHI) should be encrypted.

Whether documents prepared in connection with an internal investigation are protected from disclosure by the attorney-client privilege or work-product doctrine is a topic of continuing interest and current debate. Read full post.

Recently, the U.S. Supreme Court limited the scope of the preemption of state law class actions afforded by the Securities Litigation Uniform Standards Act of 1998 (SLUSA) in Chadbourne & Parke LLP v. Troice, No. 12-79 (U.S. Feb. 26, 2014).

In this article, Pravin Rao, Jose A. Lopez, Travis Exstrom and Jalina Joy Hudson highlighted the SEC's enforcement priorities in 2014, as presented at "The SEC Speaks" conference held in Washington, DC, from February 21-22, 2014.

The annual “SEC Speaks Conference,” where the U.S. Securities and Exchange Commission (SEC) and its senior staff review the major developments from the prior year, and preview the SEC’s enforcement priorities for the upcoming year, convened in Washington D.C. on February 21-22, 2014.

Enforcement officials from the U.S. SEC’s Chicago Regional Office and the U.S. Attorney’s Office for the Northern District of Illinois gathered to discuss their enforcement initiatives at the “SEC & DOJ Hot Topics 2014” program on February 11, 2014.  Local regulators reinforced the theme that in 2014, the SEC will continue to adopt enforcement tools that historically have been used by their counterparts in criminal law enforcement.

Now that 2013 has wrapped up, it is that time of year again when Markus and Bo dust off the compliance crystal ball and take a look at what might be in store for 2014. Trends examined include FCPA enforcement, supply chain compliance, OFAC actions, the conflict minerals rules, carbon copy prosecutions, and SEC actions on whistleblower complaints.

In recent months, the Securities and Exchange Commission (SEC) has announced and implemented policy shifts that could compromise the availability of directors’ and officers’ (D&O) insurance coverage for entities and individuals. First, after years of not requiring admissions of wrongdoing unless there was an underlying criminal conviction, the SEC will no longer agree to “no admit, no deny” settlements in cases involving “widespread harm to investors” or “egregious intentional misconduct.”

The virtual currency industry is in the news once again following the October 1, 2013, Federal Bureau of Investigation’s shutdown of the “Silk Road” website.

A political action committee has sought an advisory opinion from the Federal Election Commission as to whether bitcoins can be accepted as political contributions and, if so, how bitcoins should be characterized and valued by recipients.

Riding the coattails of an August 6, 2013 federal court ruling that alleged Ponzi-schemer Trendon Shavers’ Bitcoin-based investment scheme constituted an investment contract, and therefore is a “security” under the federal securities laws, various federal and state lawmakers have aligned their attention to issues affecting the virtual currency market.

In response to the SEC’s first civil complaint arising from online virtual currency trading, alleged Bitcoin Ponzi schemer Trendon Shavers recently challenged the district court’s authority to hear the case.

On July 23, 2013, the SEC ventured into the electronic currency world by filing a civil complaint against virtual currency “trader” Trendon Shavers and his company, Bitcoin Savings and Trust, in the U.S. District Court for the Eastern District of Texas.

On June 13, 2013, the Securities and Exchange Commission announced the settlement of administrative proceedings against Revlon, Inc. In the settlement order, the SEC asserted that the company hid information regarding a 2009 “going private transaction” from its independent board members and minority shareholders in violation of Section 13 of the Securities Exchange Act of 1934 and Rule 13e-3 thereunder.

The Securities and Exchange Commission’s (the Commission or SEC) Division of Corporation Finance provided answers to questions regarding the commission’s rules adopted in response to the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring certain public companies to disclose on a new Form SD their use of conflict minerals originating in the Democratic Republic of the Congo (the DRC) or an adjoining country.

Federal authorities have initiated several recent enforcement actions that are indicative of continuing regulatory changes in the virtual currency industry.

Two new criminal laws underscore the value of trade secrets as a critical asset to a corporation.  These new laws, the Trade Secrets Clarification Act (TSCA) and the Foreign and Economic Espionage Penalty Enhancement Act (FEEPEA), have increased the criminal penalties for stealing trade secrets, including fines in excess of $10 million.

For the first time in the more than 50-year history of the statute, a federal appeals court has applied the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, to a civil False Claims Act (FCA) case.

Supply chain compliance is on the government’s enforcement radar like never before.  If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the Department of Justice’s  (DOJ’s) February 20, 2013 announcement of headline-grabbing charges against the two largest domestic honey processing companies eliminates any doubt that companies must carefully examine the effectiveness of their existing supply chain compliance programs.

Charles Duross, deputy chief of the Department of Justice’s (DOJ) Criminal Division, Fraud Section, offered white collar crime practitioners rare insight into the DOJ’s and the Security and Exchange Commission’s (SEC) recently released Resource Guide to the U.S. Foreign Corrupt Practices Act at the American Bar Association’s (ABA) 27^th Annual National Institute on White Collar Crime, held in Las Vegas from March 6 to 8, 2013.

In this article, Pravin Rao, Keith Miller, Jose Lopez, and Charles Mulaney highlighted the SEC's enforcement priorities in 2013, as presented at "The SEC Speaks" conference held in Washington, DC, from February 22-23, 2013.  A continuation by the SEC to accelerate its efforts to protect investors and promote the integrity of the marketplace emerged from this year’s conference. At the heart of these efforts are increasingly effective programs in enforcement and examination.

The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013.  A back-to-basics “investor protection” theme emerged from this year’s conference, as the SEC reposts in the wake of Chairman Mary Schapiro and Enforcement Director Robert Khuzami departing.

Earlier today, in a case titled Sell v. Sewell, (No. CV-12-0211-PR), the Arizona Supreme Court ruled that there is no implied private right of action for aiding and abetting securities fraud under the Arizona Securities Act (ASA).  Today’s ruling in Sell overturns the court’s ruling 34 years ago in State v. Superior Court, 599 P.2d 777 (Ariz. 1979), and continues the court’s strong policy of following the U.S. Supreme Court’s interpretations of analogous federal securities statutes.

On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations implementing the Physician Payment Sunshine Act (Act or Sunshine Act). The Sunshine Act requires drug, medical device, biological and medical supply manufacturers to track and report, for publication by CMS, payments made to physicians and teaching hospitals.

Federal law and most states only require one party to a phone call to consent to recording it, which means the person recording the call doesn’t need anyone else’s permission; however, a minority of states, including California, require all parties to a call to provide consent.  While you might think you are safe if you do the recording in a one-party consent state, like Georgia, California’s highest court has made clear that California law will apply no matter where you are located if you do business in California and record a call with a California client.  Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006).

On January 8, 2013, the Supreme Court of the State of New York conducted a hearing in a criminal case that may cause concern among software developers whose software could be used for illegal activities.

On November 29, 2012, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a report raising concerns about the Centers for Medicare and Medicaid Services’ (CMS) oversight of the Medicare electronic health record (EHR) incentive program.  The report was based on a review of healthcare professionals’ and hospitals’ meaningful use of certified EHR technology (i.e., the computerized systems that store health-related patient information) from May to December 2011.

On December 3, 2012, in United States v. Caronia, a three-judge panel of the Second Circuit reversed a drug salesperson’s conviction for conspiracy to introduce a misbranded drug into interstate commerce, a misdemeanor violation of the federal Food, Drug and Cosmetic Act (FDCA). A majority of the court held on First Amendment grounds that the misbranding provisions of the FDCA do not “prohibit[] and criminaliz[e] the truthful off-label promotion of FDA-approved prescription drugs.”

On November 14, 2012, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) issued their long-anticipated Resource Guide regarding the agencies’ enforcement of the Foreign Corrupt Practices Act (FCPA).

Whether “Corporate Social Responsibility” (CSR) is a new phrase to your company or is something you have observed and worked on for years, these are perilous times indeed for companies with large, complex, global supply chains.

On September 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting.

The Securities and Exchange Commission recently adopted final disclosure and reporting rules as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring certain public companies to disclose on a new Form SD their use of conflict minerals originating in the Democratic Republic of the Congo (the DRC) or an adjoining country.

In the wake of the recent admissions by Barclays Bank PLC that its traders sought to manipulate the London Interbank Offered Rate ("LIBOR"), corporations and other investors are only now beginning to appreciate the magnitude of the scandal and to consider how it might impact their own investments.

On July 2, 2012, the Department of Justice announced the largest health care fraud settlement in U.S. history: GlaxoSmithKline LLC (“GSK”) will pay $3 billion to resolve criminal and civil allegations of unlawfully promoting prescription drugs, failing to report safety data and engaging in allegedly false price reporting practices. This resolution includes a criminal fine and forfeiture totaling $1 billion and $2 billion in civil payments.

Those working in today's in-house law departments or supervising global supply chains and third-party business partners have become sensitive to the significant dangers posed by not complying with the U.S. Foreign Corrupt Practices Act (“FCPA”).  The well-publicized recent events surrounding Wal-Mart's FCPA woes have only raised already-elevated anxiety levels.

Earlier this year, Washington state legislators unanimously passed the nation's first criminal law requiring age verification for commercial sexual services advertisements depicting minors. The landmark law's goals are laudable, but its broad reach has some on-line service providers and traditional publishers concerned. For example, on-line service providers that allow users to post content and images on their sites, including on social networking sites, dating sites, discussion forums, blogs and chat rooms, could now face criminal exposure, even if they have absolutely no interest in placing, or permitting the placement of, such ads.

On May 7, 2012, the Justice Department announced that Abbott Laboratories Inc. (“Abbott”) has agreed to pay $1.5 billion to resolve criminal and civil investigations into the company’s promotion of the prescription drug Depakote for uses not approved as safe and effective by the Food and Drug Administration (“FDA”).  The resolution, which is the second-largest settlement ever for a drug company, includes a criminal fine and forfeiture totaling $700 million and civil payments with the federal government and states totaling $800 million.  Whistleblowers will receive $84 million from the federal share of the settlement amount.  With this settlement, the Justice Department has recovered over $10.2 billion in False Claims Act cases and has secured $3.9 billion in criminal fines, forfeitures, disgorgements and restitution relating to violations of the Food, Drug and Cosmetic Act (“FDCA”) since January 2009.

On May 4, 2012, the Centers for Medicare and Medicaid Services (“CMS”) announced that it will not require applicable manufacturers and group purchasing organizations (“GPOs”) to begin collecting data on relevant payments under the Physician Payment Sunshine Act (“Act” or “Sunshine Act”) until January 1, 2013.  Under the Sunshine Act, data collection was set to begin January 1, 2012.

A small cardiac surgery practice (two owners; currently five physicians) is the latest covered entity to enter into a settlement agreement and Corrective Action Plan (CAP) with the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), to resolve alleged violations of the HIPAA privacy and security regulations.  In announcing the $100,000 settlement OCR Director Leon Rodriguez stated, "OCR expects full compliance no matter the size of a covered entity."

In the wake of the recent negative publicity deluge, including a segment on a national newsmagazine show, alleging labor violations including the use of child labor, safety violations and unfair pay practices, late last week Apple released a third-party report detailing problems and proposed solutions at one of its largest suppliers.

On April 4, 2012, President Obama signed into law the Stop Trading on Congressional Knowledge Act.

On March 19, 2012, the Securities and Exchange Commission announced that in exchange for his substantial cooperation during the agency's enforcement action against AXA Rosenberg Group LLC and its CEO, Barr M. Rosenberg, it would not take enforcement action against an unnamed former AXA Rosenberg senior executive.

BlueCross BlueShield of Tennessee (BCBST) has agreed to pay $1.5 million to the U.S. Department of Health and Human Services (HHS) and enter into a Corrective Action Plan (CAP) to settle alleged violations of the HIPAA privacy and security regulations. The enforcement action arose from the theft of 57 hard drives that contained audio and video recordings of customer service calls and included electronic protected health information (ePHI) of over one million individuals. The settlement resolves HHS’s first enforcement action in connection with the Health Information Technology for Economic and Clinical Health (HITECH) Act Breach Notification Rule.  The CAP also provides insight into the kinds of security measures HHS expects companies in possession of ePHI to have in place.

On February 24-25, 2012, the U.S. Securities and Exchange Commission ("SEC") and its senior staff presented at the annual "SEC Speaks" conference to comment on major trends from the previous year and to forecast anticipated developments for 2012.

On February 16, 2012, the Centers for Medicare & Medicaid Services (“CMS”) published its long-awaited Proposed Rule implementing Section 6402(a) of the Patient Protection and Affordable Care Act (“ACA”).  77 Fed. Reg. 9179 (Feb. 16, 2012), available at http://www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-3642.pdf.

The U.S. Department of Justice announced on February 6, 2012 that medical device company Smith & Nephew Inc. has agreed to pay over $22 million to settle Foreign Corrupt Practices Act allegations that it paid government-employed doctors in Greece to use its products.

The Centers for Medicare and Medicaid Services published proposed regulations today under the Physician Payment Sunshine Act.

The 2011 Offshore Voluntary Disclosure Initiative, which ends August 31, 2011 offers taxpayers who either maintain undisclosed foreign bank accounts or use foreign entities to conceal offshore investments a way to substantially reduce their potential penalties as opposed to those who do not come forward.

The Physician Payment Sunshine Act, enacted into law as part of the Health Care Reform package in 2010, will require the tracking and reporting to the government of payments made on or after January 1, 2012 by drug, medical device and medical supply manufacturers to physicians and teaching hospitals.

On May 25, 2011, in a 3-2 vote, the U.S. Securities and Exchange Commission (“SEC”) adopted its final rules (“Rules”), as required under Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or the “Act”). The Rules implement the SEC’s hotly anticipated new whistleblower bounty program that rewards individuals who provide the SEC with information leading to successful enforcement actions that exceed $1 million in monetary sanctions. Eligible whistleblowers can earn a payout of 10% to 30% of any monetary sanctions collected because of the tipster's information.

A U.S. Supreme Court decision handed down on May 16, 2011, restricts the information upon which a private plaintiff can base a False Claims Act case. Private plaintiffs have often used the Freedom of Information Act ("FOIA") to obtain information from government agencies to bolster claims under the False Claims Act.

The American Bar Association held a Health Care Fraud Conference on May 11-13, 2011 in which high level officials from both the Department of Justice (“DOJ”) and Health and Human Services (“HHS”) described the new tools and tactics the government is utilizing to combat health care fraud. The government's new campaign will increase the amount of scrutiny that hospitals, pharmaceutical manufacturers, medical device companies and individual providers face.

This update was republished as an article on Law360

In an extremely rare move, the Department of Justice’s Antitrust Division recently announced that it had entered into a non-prosecution agreement (“NPA”) with UBS AG (“UBS”) to resolve criminal antitrust charges.

The Department of Health and Human Services (HHS) recently announced that it will seek to exclude Howard Solomon, CEO of pharmaceutical company Forest Laboratories Inc., from participation in federal health programs (such as Medicare and Medicaid) based solely on the corporation’s criminal conviction.

In Matrixx Initiatives, Inc. v. Siracusano, No. 09-1156 (U.S. Mar. 22, 2011), the U.S. Supreme Court unanimously held that a plaintiff can establish the materiality (for purposes of claims under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5) of adverse events experienced by users of pharmaceutical products without showing that the incidence of harm from those adverse events was statistically significant.

The American Bar Association’s 25th Annual National Institute on White Collar Crime (March 2-4, 2011) featured, among other panelists, senior members from the U.S. Department of Justice ("DOJ"), various state and federal prosecutors, representatives from federal regulatory bodies, members of the federal judiciary and leading practitioners from the white collar defense bar.  This Update highlights several of the most significant trends in white collar prosecution signaled by these panelists as likely to shape 2011’s enforcement landscape.

Section 220 of the Delaware corporation law provides that stockholders may inspect a corporation’s books and records for a “proper purpose.”  Normally, plaintiffs file Section 220 actions as an investigatory tool before commencing litigation—the sequence long favored under Delaware law.  Frustrated by abuses occasioned by the opposite approach, in May 2010, Vice Chancellor Leo Strine of the Delaware Chancery Court ruled that “once a plaintiff files a derivative suit, he has made his election,” and cannot thereafter seek books and records in Delaware.  On January 28, 2011, the Delaware Supreme Court reversed.

At this year’s annual “SEC Speaks” conference held on February 4-5, 2011, representatives from the U.S. Securities and Exchange Commission reviewed the SEC’s 2010 achievements and previewed upcoming 2011 enforcement initiatives.  While last year’s program sent a strong message of aggressive enforcement and regulation, the theme that emerged this year was the growing tension created by the SEC’s expanded mandate to regulate in the face of enormous budgetary constraints that threaten its ability to carry out its mission effectively.  In this regard, the message emerging from 2011’s SEC Speaks appears to be squarely directed to Congress, as the Commission plainly concedes that the bold possibilities created by the Dodd-Frank Wall Street Reform and Consumer Protection Act will require corresponding funding if the Commission is to succeed in meeting its mandate.

Many companies might be surprised to learn that the difficult to control acts of their foreign agents, intermediaries, consultants, joint venture partners, suppliers, distributors and even outside counsel, private equity portfolio companies and franchisees can result in—and, in fact, have resulted in—potentially devastating civil and criminal Foreign Corrupt Practices Act (FCPA) liability to the principal or parent company . . . even absent any evidence of the company’s actual knowledge of this misconduct. And all indications are that the government will ramp up its reliance on such third-party liability as we move into 2011 and beyond. This update examines the growing threat of third-party liability and how clients can, through precautionary steps tailored to the particular circumstances of the company, effectively fend off the potentially catastrophic effects of third-party liability.

After surveying the OECD's "Phase 3" review of U.S. global anti-corruption efforts, Markus concludes that U.S. diplomatic pressure, buoyed by the OECD's encouraging findings, signals an era of continued domestic and international efforts to stem the tide of global corruption. Companies that fail to appropriately adapt to this new enforcement reality risk exposure not only to massive fines and financial penalties, but also to stiffening criminal sanctions.

Effective November 1, 2010, the U.S. Sentencing Commission has changed how fines for companies are calculated under the U.S. Sentencing Guidelines. The inquiry has now shifted away from the (mis)conduct of the company’s high-level personnel and toward the effectiveness of the company’s compliance and ethics program.

On October 26, 2010, the Justice Department announced a $750 million settlement of criminal and civil actions stemming from a whistleblower suit against the pharmaceutical manufacturer GlaxoSmithKline (GSK).  The settlement, which included a record $96 million award to the whistleblower, reflects the growing number and scale of False Claims Act (FCA) suits against the health care industry.

The OECD has criticized other signatory nations for not living up to their anti-bribery obligations, and in its just released report also identifies certain discrete areas for U.S. improvement. But the bottom line message is that the U.S. government is a leader in anti-corruption enforcement.

On September 13, the Ninth Circuit issued its fourth (and final) opinion in United States v. Comprehensive Drug Testing, an en banc opinion issued per curiam.  The opinion tackles the applicability of the plain view doctrine to digital evidence, the Government’s obligation to segregate and return non-responsive electronic data, Federal Rule of Criminal Procedure 41(g)’s applicability when a motion is made by a party against whom no criminal charges are pending, and the appropriateness of using a subpoena to obtain the same information previously sought pursuant to a search warrant but ordered returned pursuant to Rule 41(g).

In this article, Pravin Rao discusses the possible civil and criminal liability for insider trading involving Credit Default Swaps (CDS) and suggests pre-emptive measures to prepare for such enforcement.

As part of its initiative to strengthen enforcement of energy efficiency standards, the U.S. Department of Energy (DOE) announced on December 9, 2009 that it will give manufacturers a 30-day grace period—ending on January 8, 2010—to file or update certifications of compliance with energy efficiency standards for appliances.  After that date, DOE will begin more aggressively enforcing the certification requirements.

The federal government's long-running investigation into steroid use in Major League Baseball has yielded more than just newspaper headlines and embarrassed sluggers. Last week, an en banc panel of the Ninth Circuit Court of Appeals reviewing the steroid investigation announced new and enhanced guidelines applicable to all search warrants for electronically stored information ("ESI") in the Ninth Circuit.

On July 17, 2009, a federal district court in Texas dismissed an insider trading suit brought by the Securities and Exchange Commission (SEC) against Mark Cuban, the high-profile owner of the NBA's Dallas Mavericks.

While the downturn in the economy has adversely affected the sellers of directors’ and officers’ liability insurance – much as it has companies in all sectors of the economy – investing in D&O insurance is still a wise course of action.  This Update offers nine suggestions for ensuring that a company’s directors and officers are adequately protected in this environment against potential liabilities that D&O insurance normally would pay.

In a closely watched case, the Second Circuit Court of Appeals has refused to cut back on traditional standards for corporate criminal liability.  The Association of Corporate Counsel, the U.S. Chamber of Commerce and other groups had asked the court to depart from a century of judicial precedent holding corporations broadly liable for criminal acts committed by employees.  The groups argued that such broad vicarious criminal liability was counterproductive and asked the court to bar corporate criminal liability unless prosecutors could show that the corporation lacked an effective compliance program.

On October 6th, the Securities Exchange Commission (SEC) released its Enforcement Division manual to the general public for the first time.

Auditors today routinely request information about internal investigations.

Directors of public companies are being called on to supervise independent investigations with increasing frequency. The ongoing furor over stock option backdating is simply the most recent illustration of this trend. Countless boards are finding themselves in a position of conducting independent investigations in order to identify improprieties and respond to concerns from regulators, prosecutors, auditors, shareholders and others.

A judge in the U.S. District Court for the Southern District of New York recently dismissed the SEC's first Regulation FD enforcement action to be tested in federal courts. In dismissing the action against Siebel Systems and two of its officers, the Court took the SEC to task for its overly aggressive enforcement of Regulation FD.

In a unanimous decision, the U.S. Supreme Court recently reversed Arthur Andersen's criminal conviction for violating a federal witness tampering statute by encouraging its employees to shred Enron documents pursuant to a document retention policy. Arthur Andersen LLP v. United States, 125 S. Ct. 2129, 2005 WL 1262915 (U.S. May 31, 2005). In doing so, the Supreme Court avoided direct evaluation of the conduct that led to the accounting firm's conviction.

Businesses often turn to the United States Sentencing Guidelines for guidance in designing effective corporate compliance and ethics programs. The relevant parts of the guidelines, known as the Organizational Sentencing Guidelines, include detailed criteria for effective corporate compliance and ethics programs.

Judges use the Federal Sentencing Guidelines to determine sentences for individuals and corporations convicted of federal crimes. Corporate managers and their advisors can use the Sentencing Guidelines to identify areas of risk, focus compliance programs and underscore to employees the consequences of improper behavior.

The webinar examined recent events, beginning with the Terraform Labs cryptocurrency collapse and continuing to the downfall of various entities, including FTX Trading Ltd. and Silicon Valley Bank. Our panel of experts addressed key legal and regulatory issues relating to these events.

On Thursday, March 9, 2023, Perkins Coie hosted a highly interactive CLE webinar designed by seasoned practitioners who will share best practices and their experiences investigating cases of workplace violence, sexual and racial trauma, and other instances of power-based harm.

Multidisciplinary panel of lawyers from Perkins Coie’s White Collar & Investigations, Privacy & Security, Labor & Employment, and Corporate & Securities practices discussed recent changes to the DOJ corporate criminal enforcement policies and their impact on business organizations and their compliance operations.

An overview of the government’s tools and authorities to combat fraud in COVID-19 relief spending and the anticipated areas of focus for the U.S. Department of Justice as well as other new and existing investigative entities.

This webinar addressed lessons learned from the government investigations that followed the 2008 financial crisis, and what those lessons can teach us in the wake of recently passed COVID-19 stimulus legislation.

The Yale Law School National Security Group, International Law Programs and the Career Development Office invited Perkins Coie Partner T. Markus Funk to speak at Yale on supply chain, trafficking and bribery issues. 

Topics covered include, cybersecurity, government investigations and FCPA enforcement.

A presentation with Perkins Coie LLP, Zhonglun W&D Law Firm and China Chamber of International Commerce on key legal issues faced by companies doing business in the U.S. We shared practical insights based on our deep experience and understanding of the complex legal and business issues facing Asia-based companies doing business abroad. 

A presentation with Perkins Coie LLP, Shanghai L&W Intellectual Property Law Office, Zhonglun W&D Law Firm and Shanghai Pudong Association for Investment & Financing on key legal issues faced by companies doing business in the U.S. We shared practical insights based on our deep experience and understanding of the complex legal and business issues facing Asia-based companies doing business abroad.

Perkins Coie partners, Todd Kerr, Michael Clyde and Pravin Rao, as they address: common issues raised by shareholders; different kinds of shareholder demands; best practices for responding to shareholder demands and avoiding shareholder litigation; How a derivative lawsuit differs from other litigation; considerations for derivative litigation; indemnification claims and D&O insurance coverage and internal and government investigations.

The panel discussed the new policy, announced by Attorney General Eric Holder on August 12, 2013, that curtails the government’s use of mandatory minimum sentences in drug cases. The panel also discussed the scope of the new policy and the future of mandatory minimum sentences.