During a keynote speech on March 7, 2024 at the American Bar Association’s National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco announced that the Department of Justice (DOJ) will launch a pilot program offering financial incentives for individual whistleblowers to report corporate wrongdoing to the DOJ. According to DAG Monaco, the pilot program intends to use “carrots to wield larger sticks” on a full range of corporate misconduct and reinforces the DOJ’s commitment to implementing policies aimed at promoting cultures of corporate compliance. While DAG Monaco’s anno ..read more

On January 10, 2024, the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) announced settlements with SAP SE (SAP), a German software company, to resolve allegations that SAP violated the U.S. Foreign Corrupt Practices Act (FCPA) by, among other things, making improper payments to government officials in South Africa and Indonesia to secure and retain software and services contracts with government entities. SAP agreed to pay the DOJ and the SEC over $220 million and entered into a three-year deferred prosecution agreement (DPA) with the DOJ. The U.S. regu ..read more

The U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) has proposed new rules that would require anti-money laundering/countering the financing of terrorism (AML/CFT) programs for investment advisers.  The pdf is currently available, and will likely be replaced by the Federal Register version once published.  The final form of the rule, if adopted, remains to be determined, as does the compliance date. The proposed rules would apply only to Securities and Exchange Commission (SEC)-registered investment advisers (RIAs) and exempt reporting advisers (ERAs ..read more

On November 20, 2023, a federal district court in the Northern District of California declined to grant summary judgment to the defendant in SEC v. Panuwat, the first-ever enforcement action by the U.S. Securities and Exchange Commission (the “SEC”) based on the novel insider trading theory of “shadow trading”—the use of one company’s inside information to trade in securities of another, similarly situated, but unrelated company.  The court previously declined to dismiss the case, signaling a potential expansion of insider trading enforcement.  The court’s summary judgment decision ..read more

At the recent 2023 Garrett Securities Law Institute Conference SEC panelists, including Erik Gerding, Director of the Division of Corporation Finance, reinforced how important it is for companies to assess emerging risks for materiality—particularly those risks stemming from Environmental, Social and Governance (ESG) issues and cybersecurity issues—and to ensure that those risks are appropriately disclosed to investors. The SEC panelists further cautioned that disclosures related to emerging risks should not be generic disclosures based on industry-wide trends or risks, but instead should focu ..read more

The Supreme Court of the United States has agreed to review an apparent circuit split over how long after a criminal conviction the United States can forfeit a criminal defendant’s property. In McIntosh v. United States the Court will review whether a district court may enter a criminal forfeiture order long after criminal proceedings have ended. How the Court resolves this issue will be important to future forfeiture cases, including those involving cryptocurrencies—an asset that over the last decade has been increasingly in the crosshairs of the government’s forfeiture powers. Rule 32.2 ..read more

On November 1, 2023, significant amendments to the Federal Sentencing Guidelines went into effect after Congress took no action to veto the proposed amendments, which were adopted by the U.S. Sentencing Commission earlier this spring.  This marks the first time in five years that the Guidelines have been amended, in part due to the Commission having a lack of quorum from 2019 through 2022. The newly effective amendments enact, among other things, a new Chapter Four guideline, which provides for a decrease of two offense levels for “zero-point offenders” (that is, defendants with no prior ..read more

The U.S. Department of Education (the “DOE”) recently concluded that the Newark, New Jersey public school district violated Title IX of the Education Amendments of 1972 (“Title IX”) by failing to implement proper policies and respond to reports of student-to-student and employee-to-student sexual harassment. On August 28, 2023, the DOE and the school district entered into a Resolution Agreement in which the district committed to take certain steps to resolve the compliance issues identified by the DOE. In a Letter accompanying the Resolution, the DOE described nine violations of Title IX and ..read more

On April 28, 2023, a federal court in Connecticut dismissed the United States Department of Justice (“DOJ”) Antitrust Division’s latest—and largest—criminal anti-poach case brought to trial. After a 15-day jury trial in United States v. Patel—but before the jury could deliberate—U.S. District Judge Victor A. Bolden granted the defendants’ joint motion for acquittal, finding that based on the evidence presented by the prosecutors, no reasonable juror could convict the six accused aerospace and staffing company executives of engaging in criminally anti-competitive behavior. The acquittal marks ..read more

The U.S. Supreme Court has recognized “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” This is as true for defendants facing charges of robbery and extortion as for those charged with tax evasion, embezzlement, or securities fraud. Indeed, research has previously shown that nearly 97% of all federal convictions are secured through plea agreements—not jury verdicts. Against this context, it is noteworthy that the Court recently declined to resolve a lingering circuit split involving the right of defendants to have their counsel seek such ..read more