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 Funds
DOJ Announces Revisions to Compliance Guidance Focused on AI, Whistleblower Reporting, and Other Areas
September 23, 2024, Principal Deputy Assistant Attorney General Nicole M. Argentieri announced revisions to the Department of Justice (“DOJ”), Criminal Division’s compliance guidance, known as the Evaluation of Corporate Compliance Programs (“ECCP”), which is used by DOJ prosecutors to assess the effectiveness of a company’s compliance program in the context of a corporate investigation.[1] The updated compliance guidance incorporates changes that will focus on a company’s use of Artificial Intelligence (“AI”)[2] and other technologies, its use of data analytics as part of the compliance function, the incorporation of “lessons learned” to continuously enhance corporate compliance programs, and whistleblower reporting.[3]
Continue Reading DOJ Announces Revisions to Compliance Guidance Focused on AI, Whistleblower Reporting, and Other AreasSDNY Announces Whistleblower Pilot Program For Individuals Who Self-Disclose Wrongdoing Involving Business Organizations
On January 10, 2024, the U.S. Attorney’s Office for the Southern District of New York (“SDNY”) announced the creation of the SDNY Whistleblower Pilot Program (the “Pilot Program”).[1] Under the Pilot Program, individuals who self-disclose certain criminal misconduct that involves business organizations to SDNY and cooperate fully may be eligible for a Non-Prosecution Agreement (“NPA”).[2]
Continue Reading SDNY Announces Whistleblower Pilot Program For Individuals Who Self-Disclose Wrongdoing Involving Business OrganizationsU.S. District Court Tosses FIFA Bribery Convictions, Finding Honest Services Statute Does Not Reach Foreign Commercial Bribery
On September 1, 2023, U.S. District Judge Pamela K. Chen of the Eastern District of New York granted a judgment of acquittal in the latest FIFA bribery prosecution, holding that the federal honest services statute, 18 U.S.C. § 1346, does not cover foreign commercial bribery in light of recent Supreme Court precedent.
Continue Reading U.S. District Court Tosses FIFA Bribery Convictions, Finding Honest Services Statute Does Not Reach Foreign Commercial BriberyNew SEC Disclosure Rules for Cybersecurity Incidents and Governance and Key Takeaways
On July 26, 2023, the U.S. Securities and Exchange Commission (the “SEC” or “Commission”) adopted rules to enhance and standardize disclosure requirements related to cybersecurity incident reporting and cybersecurity risk management, strategy, and governance.
Continue Reading New SEC Disclosure Rules for Cybersecurity Incidents and Governance and Key TakeawaysDepartment of Justice Announces Revisions to Criminal Division Policies
On March 3, 2023, Assistant Attorney General (“AAG”) Kenneth A. Polite announced revisions to two Department of Justice (the “DOJ”) Criminal Division policies and the launch of a new pilot program, as well as a forthcoming re-issuance of the FCPA Resource Guide in Spanish later this month.[1] His announcement follows a speech by Deputy Attorney General (“DAG”) Lisa O. Monaco the day before previewing the policy changes.[2] In parallel, the DOJ published (1) a new Compensation Incentives and Clawback Pilot Program (the “Pilot Program”),[3] (2) revised Evaluation of Corporate Compliance Programs (“ECCP”) guidance,[4] and (3) a revised Memorandum on the Selection of Monitors in Criminal Division Matters (the “Corporate Monitor Memorandum”).[5]
Continue Reading Department of Justice Announces Revisions to Criminal Division PoliciesU.S. Attorney’s Offices Issue Nationwide Corporate Voluntary Self-Disclosure Policy
On February 22, 2023, the Department of Justice announced a new corporate Voluntary Self-Disclosure Policy for U.S. Attorney’s Offices nationwide (the “USAO Policy”).
Continue Reading U.S. Attorney’s Offices Issue Nationwide Corporate Voluntary Self-Disclosure PolicyU.S. Department of Justice Announces Revisions to Corporate Criminal Enforcement Policy
Following a speech by Assistant Attorney General Kenneth A. Polite on January 17, 2023, the DOJ issued additional guidance on changes to the Corporate Criminal Enforcement Policy, focused on voluntary self-reporting.
The policy increases, and makes more explicit and concrete, the potential benefits for companies to self-disclose misconduct, cooperate, and remediate, as well as the
DOJ Provides Updates on FCPA and Corporate Criminal Enforcement Trends at International Conference on the FCPA
On December 1, 2022, at the American Conference Institute’s 39th International Conference on the Foreign Corrupt Practices Act (“FCPA”) in Washington D.C., Acting Principal Deputy Assistant Attorney General Nicole M. Argentieri (“DAAG Argentieri”) gave a special keynote speech highlighting developments in FCPA enforcement by the Department of Justice (“DOJ” or the “Department”), including with regard to the application of the DOJ’s announcement of corporate criminal enforcement policy priorities in September of this year.[1] DAAG Argentieri focused on several policy changes and enforcement trends and initiatives using examples from this year’s FCPA resolutions and declination,[2] as well as from the Money Laundering and Asset Recovery Section’s Kleptocracy Asset Recovery Initiative.
Continue Reading DOJ Provides Updates on FCPA and Corporate Criminal Enforcement Trends at International Conference on the FCPA
Second Circuit Upholds District Court’s Rejection of DOJ Attempt to Expand Extraterritorial Reach of FCPA Through Agency Liability
On August 12, 2022, in United States v. Hoskins, No. 20-842 —F.4th—, 2022 WL 330357 (2d. Cir. Aug. 12, 2022) (“Hoskins II”), a three-judge panel from the Second Circuit upheld a lower court decision to overturn the foreign bribery conviction of a former Alstom SA executive, Lawrence Hoskins. The Court concluded that the trial evidence did not support a finding that Defendant Hoskins was an “agent” of a U.S. subsidiary of the French multinational railway manufacturer Alstom (“Alstom U.S.”). While highly fact-intensive and likely subject to narrow interpretation in the future, the decision is the Second Circuit’s most recent limitation on the extraterritorial reach of the Foreign Corrupt Practices Act (“FCPA”). This follows a prior Second Circuit decision in this same case limiting the scope of the FCPA’s extraterritorial reach of conspiracy liability for certain foreign individuals acting abroad.
Continue Reading Second Circuit Upholds District Court’s Rejection of DOJ Attempt to Expand Extraterritorial Reach of FCPA Through Agency Liability