Key Takeaways: On June 1, 2023, in United States ex rel. Schutte v. SuperValu Inc., the U.S. Supreme Court unanimously held that defendants cannot avoid liability under the False Claims Act (FCA) by demonstrating that their conduct was consistent with an “objectively reasonable” interpretation of an ambiguous legal requirement. The Court’s decision clarifies that FCA liability turns on the subjective standard of whether a defendant, at the time it submitted a claim, knew that claim was false. The SuperValu case arose from separate lawsuits against two companies that operate reta ..read more

Key Takeaways Courts are showing continued skepticism of broad use of federal fraud statutes.  Last week, two decisions repudiated creative government interpretations of wire fraud’s “property” requirement. In United States v. Ciminelli, the Supreme Court unanimously rejected the “right to control” theory, holding that only “traditional property interests” can support a federal wire fraud conviction, and the right to accurate information to make an informed economic decision is not such an interest. In United States v. Abdelaziz, the First Circuit overturned convictions in the “Varsity B ..read more

Key Takeaways DOJ continues to focus on corporate self-disclosure and remediation, individual accountability, and international cooperation on corruption matters. DOJ is putting new emphasis on the use of compensation system incentives and the threat of clawbacks to encourage compliance efforts by individual employees International efforts to improve whistleblower protections and increase beneficial ownership transparency continued to gain momentum U.S. Policy Developments Since the fall of 2022, DOJ has made several policy pronouncements in connection with its efforts to combat corporate cr ..read more

This is the eighth part in our 2023 series examining important trends in white collar law and investigations. Up next: anti-corruption. Key Takeaways: As we predicted in our March 2022 post, 2022 was a year of heavy cryptocurrency enforcement, with a spike in actions by the U.S. Securities and Exchange Commission (the “SEC”) and the U.S. Commodity Futures  Trading Commission (the “CFTC”) against companies and individuals involved in cryptocurrency. It was also a year of major setbacks for the cryptocurrency industry, including the crash of the stablecoin TerraUSD (a cryptocurrency pegged ..read more

2023 promises historic change for the Office of the Massachusetts Attorney General with Andrea Campbell sworn in as the new Attorney General earlier this year. Andrea Campbell ran a campaign on the idea that the Attorney General’s office is uniquely suited to help in uplifting the underrepresented and her first month in office has signaled she intends to prioritize those groups. In her inaugural address on January 18, 2023, she outlined her priorities for her first term focusing on the theme that had come to define her candidacy. Her historic inauguration speech focused on how she will hold th ..read more

This is the sixth part in our 2023 series examining important trends in white collar law and investigations. Up next: crypto enforcement. According to the Securities & Exchange Commission, its proposed revisions to SEC regulations regarding climate change disclosures in May 2022 were intended to provide investors with consistent and reliable information regarding how climate change could impact their investment decisions. We have written previously about how these disclosure requirements affect investment advisers and about some of the key takeaways from climate-related disclosures under t ..read more

This is the fifth part in our 2023 series examining important trends in white collar law and investigations. Up next: crypto enforcement. Takeaways: The SEC’s Division of Enforcement set record-highs in total money relief ordered and total civil penalties assessed in fiscal year 2022. The SEC will likely focus its enforcement efforts on securing the cryptocurrency industry’s compliance with the registration requirements of the Securities Act of 1933 and ensuring statements made by investment advisers and issuers concerning their ESG-compliance are both truthful and not misleading. Amendments ..read more

This is the fourth part in our 2023 series examining important trends in white collar law and investigations. Up next: SEC. Key Takeaways With Republicans gaining control of the House, the party has plans to investigate both areas of focus from past Congresses, such as federal support for clean energy companies, and new areas, such as ESG practices. Certain areas of interest—especially China, large technology companies, and health care costs—will draw scrutiny from both parties and likely will continue in future Congresses. Some investigations that primarily focus on government actors, like s ..read more

This is the second part in our 2023 series examining important trends in white collar law and investigations. Up next: crypto enforcement. The days of decreased IRS enforcement activity may be coming to a close.  Although the overall volume of civil audits and criminal investigations has declined in recent years, last year’s Inflation Reduction Act, signed into law by President Biden on August 16, 2022, may reverse this trend.  The Inflation Reduction Act allocates $79.6 billion to the IRS over the next 10 years, with more than half of the money going to enforcement.  This law a ..read more

Key Takeaways: DOJ revised its Corporate Enforcement Policy (CEP) to further incentivize robust voluntary disclosures by corporations when they discover misconduct. Even when aggravating circumstances would otherwise warrant criminal resolution, prosecutors will now have discretion to decline to prosecute when a company provides extraordinary cooperation. Recognizing the unique opportunity to encourage disclosure and remediation in M&A transactions, DOJ took the opportunity to highlight particular benefits available in that context. Companies, in consultation with outside counsel, must be ..read more