Corporate Enforcement

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On May 29, 2018, the U.S. Supreme Court issued an unanimous opinion in Lagos v. United States. Lagos presented the issue of whether costs incurred during and as a result of a corporate victim’s investigation (rather than a governmental investigation) must be reimbursed by a criminal defendant under the Mandatory Victims Restitution Act (“MVRA”).…

On June 4, 2018, the U.S. Department of Justice announced that Société Générale S.A. (“Société Générale”) and its wholly-owned subsidiary, SGA Société Générale Acceptance, N.V. (“SGA”), have agreed to pay over $1 billion in total penalties to U.S. and French authorities in connection with bribe payments to Libyan officials and manipulation of the London Interbank…

The Financial Conduct Authority and the Prudential Regulation Authority (together, the “Regulators”) have jointly fined Barclays’ CEO, Jes Staley, a total of £642,430. The fine was imposed for Mr Staley’s repeated attempts to uncover the identity of an anonymous whistleblower, which constituted a failure to act with the due skill, care and diligence the Regulators expect from a CEO. The case was observed with interest as the first brought by financial regulators under the UK’s Senior Managers Regime. The Regulators chose not to impose more severe sanctions (which could have involved the removal of Mr Staley from his role) after failing to find that Mr Staley was guilty of any deliberate wrongdoing.
Continue Reading UK Regulators Fine Barclays’ CEO for Errors of Judgement in Relation to Whistleblower

On April 23rd, the European Commission adopted a proposal for a directive on the protection of whistleblowers reporting breaches of Union Law.[1]

The proposal sets out minimum standards of protection for whistleblowers against retaliation when they report breaches in specific policy areas.  The proposal is premised on the view that the lack of a common, effective approach to whistleblower protection across Member States can impair the enforcement of European law.[2]
Continue Reading The European Commission Proposes new Rules to Strengthen Whistleblower Protection

On April 18, 2018, the Securities and Exchange Commission (“SEC”) proposed Regulation Best Interest under the Securities Exchange Act of 1934 to establish a new “best interest” standard of conduct for broker-dealers when making a recommendation of any transaction or investment strategy involving securities to a retail customer. The SEC also proposed an interpretation to…

On April 24, 2018, Altaba, formerly known as Yahoo, entered into a settlement with the Securities and Exchange Commission (the “SEC”), pursuant to which Altaba agreed to pay $35 million to resolve allegations that Yahoo violated federal securities laws in connection with the disclosure of the 2014 data breach of its user database.  The case…

On April 18, 2018, the U.S. Supreme Court heard oral argument in Lagos v. United States.  Lagos presents the important issue of whether a corporate victim’s professional costs—such as investigatory and legal expenses—incurred as a result of a criminal defendant’s offense conduct must be reimbursed under the Mandatory Victims Restitution Act.

The court’s decision…

In a February post, we discussed in detail recent changes to the U.S. tax rules governing the deductibility of settlement payments and court-ordered damages payments.  The IRS has now released some limited guidance on this new law (IRS Notice 2018-23), and this post addresses what is in this guidance (the “Notice”).

To recap, under the new law: a settlement or court-ordered payment made to (or at the direction of) a government in relation to the violation of any law (or the investigation or inquiry by such government into the potential violation of any law) is not deductible for U.S. tax purposes unless the payment constitutes “restitution (or remediation of property) ” or “a payment for the purpose of coming into compliance with a law”.Continue Reading IRS Issues Guidance on Deductibility of Settlement Payments Under New Law

Internal investigations and public enforcement actions often pose legal issues involving multiple practice areas and jurisdictions.

In Italy, internal investigations may concern criminal, corporate, contract, data protection and labor law issues.

In the past, internal investigations in Italy tended to be mainly “reactive,” responding to public enforcement activities. The challenge in these investigations was balancing complying with disclosure obligations in relation to public enforcement authorities with volunteering confidential or disproportionate information.
Continue Reading Internal Investigations and Public Enforcement: Italy at a Glance

On March 1, 2018, U.S. Department of Justice (“DOJ” or the “Department”) officials announced that the Criminal Division is expanding the applicability of a policy that encourages corporate self-reporting and cooperation for violations of the Foreign Corrupt Practices Act (“FCPA”) to reach other types of non-corruption criminal cases.  Speaking at the American Bar Association’s National Institute on White Collar Crime in San Diego, John Cronan, Acting Assistant Attorney General for the DOJ Criminal Division, and Benjamin Singer, Chief of the DOJ Securities and Financial Fraud Unit, told attendees that the Criminal Division will apply the FCPA Corporate Enforcement Policy (the “FCPA Enforcement Policy”) as nonbinding guidance in cases other than FCPA cases.

The FCPA Enforcement Policy, which was adopted in November 2017, provided additional guidelines regarding the credit the Department will provide to companies that self‑report FCPA violations and then cooperate with the resulting investigation – including a presumption that self-reporting companies will not be criminally charged.  Expanding use of the FCPA Enforcement Policy signals the Department’s perception of its success and a further effort by DOJ to encourage companies to self-report and cooperate.  It also provides important guidance for companies faced with a variety of different types of investigations regarding the treatment they can expect, and tools to advocate before the Department for more favorable resolutions.
Continue Reading DOJ Announces Expansion of Approach Encouraging Self Reporting and Cooperation