Yesterday, the Securities and Exchange Commission rescinded its so-called “gag rule,” which for fifty years had prohibited a settling defendant from publicly denying the allegations in a settled SEC Enforcement action.[1] The policy shift has received significant media attention, but we believe it will have little effect on the experience of most individuals and entities facing SEC investigation, many of whom are keen to resolve an investigation and move on without drawing additional attention to themselves. But the change does create potential pitfalls for those trying to resolve SEC investigations, and heightens the need to think strategically when negotiating resolutions and pursuing public denials of wrongdoing. We have investigated, settled, and litigated numerous SEC enforcement investigations, both on behalf of the agency and in private practice. Outlined below are some of the potential knock-on effects we see from this policy change.
Continue Reading Deny With Care: SEC Rescinds Settlement “Gag Rule,” Creating Risks and Opportunities for Settling Defendants
New SEC Enforcement Director David Woodcock Outlines Enforcement Priorities, Including Focus on Financial Reporting and Private Funds
In his first public remarks, delivered just days into his tenure, SEC Enforcement Division Director David Woodcock announced that he will “provide hands-on leadership” to make sure SEC Enforcement investigators “focus on the fundamentals,” which he defined as “protecting investors and safeguarding markets from real harm.”[1] In announcing his “back-to-basics” approach, Woodcock gave top billing not just to traditional scams, but also to cases involving financial reporting and private funds and investment advisers. Woodcock’s remarks and his prior tenure at the SEC—and our own work on recent and ongoing SEC investigations and resolutions—indicate that the agency will continue to pursue these often complex cases even when they do not find or charge fraud, perhaps to the surprise of commentators who prematurely announced the demise of SEC Enforcement.
Continue Reading New SEC Enforcement Director David Woodcock Outlines Enforcement Priorities, Including Focus on Financial Reporting and Private FundsDOJ Releases First Department-Wide Corporate Enforcement Policy
On March 10, 2026, the Department of Justice (DOJ) announced its first Department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) for criminal matters, with the exception of antitrust. The CEP explicitly supersedes any previously-issued policies by DOJ components or U.S. Attorneys’ Offices (USAOs).[1] Deputy Attorney General Todd Blanche explained this change was part of DOJ’s commitment to “transparency and fairness” and the new CEP “creates incentives for companies to come forward and do the right thing when misconduct occurs.”[2]
Continue Reading DOJ Releases First Department-Wide Corporate Enforcement PolicyDOJ National Security Division Issues First Declination Under Merger-Related Safe Harbor Provisions
On June 16, 2025, the Department of Justice’s National Security Division (“NSD”) and the U.S. Attorney’s Office for the Southern District of Texas announced a landmark declination to prosecute private equity firm White Deer Management LLC following its voluntary self-disclosure of sanctions violations committed by an acquired company.[1] This marks the first application of the safe harbor provisions for voluntary self-disclosure in connection with mergers and acquisitions—a policy put in place during the previous administration—and demonstrates the benefits of NSD’s enforcement policies while highlighting continued enforcement priorities across administrations.
Continue Reading DOJ National Security Division Issues First Declination Under Merger-Related Safe Harbor ProvisionsCFTC Division of Enforcement Releases Guidance on Evaluating Compliance Programs
On September 10, 2020, the Division of Enforcement (“Division”) of the Commodity Futures Trading Commission (“CFTC”) released guidance (“CFTC Guidance”) outlining factors the Division will consider when evaluating compliance programs in connection with enforcement actions. The CFTC Guidance ties into guidance released by the Division in May directing staff to consider an entity’s compliance program
Supreme Court Upholds, with Limits, the SEC’s Authority to Seek Disgorgement
On June 22, 2020, the Supreme Court held in Liu v. SEC that the Securities and Exchange Commission (“SEC”) may seek, and courts have the power to grant, disgorgement as an equitable remedy for violations of the securities laws. However, the Court also placed potentially important limitations on disgorgement, holding that—to qualify as an equitable
SEC and CFTC Chairs Sign Enhanced Multilateral Memorandum of Understanding Expanding Cross-Border Enforcement Cooperation
On May 15, 2019, the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Commodity Futures Trading Commission (“CFTC”) announced that they entered into an Enhanced Multilateral Memorandum of Understanding Concerning Consultation and the Exchange of Information (“Enhanced MMoU”) under the auspices of the International Organization of Securities Commissions (“IOSCO”), along with nine other international financial regulators.[1] Both the SEC and CFTC are already signatories to IOSCO’s predecessor memorandum of understanding with 121 other signatories. However, the Enhanced MMoU provides for significant enhancements in cross-border enforcement cooperation—including the ability to compel testimony outside of the United States—that, if widely adopted, could increase the signatory regulators’ abilities to undertake (and coordinate) multilateral cross-border investigations.
Continue Reading SEC and CFTC Chairs Sign Enhanced Multilateral Memorandum of Understanding Expanding Cross-Border Enforcement Cooperation
Supreme Court Rules in Favor of Longer Time Limits for Non-intervened FCA Actions
On May 13, 2019, the Supreme Court issued its opinion in Cochise Consultancy, Inc. v. United States ex rel. Hunt with respect to the applicable statute of limitations in a FCA action in which the Government has declined to intervene. The FCA sets forth two limitation periods applicable to FCA actions and provides that an action must be brought within the longer of either (i) within 6 years after the date on which the violation occurred; or (ii) within three years of the date when facts material to the right of action are known or reasonably should have been known by a relevant official of the United States. In no event may an action be brought more than 10 years after the date on which the violation was committed. The issues in Cochise Consultancy were whether the second, alternative, limitations period applies to an action in which the government has intervened and whether, if so, the relevant official includes the private relator. These issues are important because, if the longer period applies, a relator can bring an action long after (and more than 3 years after) she learned of the FCA violation.
Continue Reading Supreme Court Rules in Favor of Longer Time Limits for Non-intervened FCA Actions
CFTC Division of Enforcement Releases First Public Enforcement Manual
On May 8, 2019, the Division of Enforcement of the Commodity Futures Trading Commission released an Enforcement Manual – the first public document of its kind from the Division.
Though the Manual does not reveal any significant shifts in policy, it will undoubtedly serve as an important resource for individuals and entities dealing with CFTC
DOJ Issues Guidance on Cooperation In False Claims Act Investigations
On May 7, 2019, the Department of Justice issued formal guidance to DOJ’s False Claims Act litigators on the circumstances in which DOJ will grant credit for cooperation during FCA investigations.
The guidance explains the factors that DOJ considers in determining whether to award cooperation credit in FCA investigations and the types of credit available.