On May 3, the Second Circuit vacated on evidentiary grounds Jesse Litvak’s conviction – after a second trial – on a single count of securities fraud related to trades of residential mortgage backed securities (“RMBS”) and remanded the case to the United States District Court for the District of Connecticut. This ruling is the latest setback for the government, as the Second Circuit in 2015 had vacated Litvak’s prior conviction on ten counts of securities fraud, one count of fraud against the Troubled Asset Relief Program (“TARP”), and four counts of making false statements to the government, following his first trial. Continue Reading Second Circuit Again Reverses Fraud Conviction of RMBS Trader Litvak
On April 25, 2018, a jury in the United States District Court in Connecticut acquitted former UBS AG (“UBS”) trader Andre Flotron of conspiring to manipulate the precious metals futures market through “spoofing.” The verdict, the first acquittal in a criminal spoofing-related case since the practice was outlawed by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010, reflects the difficulties the government faces in cracking down on the practice. Continue Reading Acquittal of Former UBS Trader Signals Potential Challenges for Government’s Anti-Spoofing Initiative
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 will impact a company’s considerations when deciding whether and how to conduct an internal investigation, particularly when the corporation is the potential victim of a crime.
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On March 27, 2018, the Canadian Government announced the introduction of legislative amendments to bring deferred prosecution agreements (“DPA”) to Canada. The legislation, which would create the “Remediation Agreement Regime” (“RAR”), follows a global trend. In recent years, DPA regimes have been introduced in the U.K. and France, and considered in a variety of other common law jurisdictions including Singapore and Australia. Although broadly patterned on an approach pioneered in the United States, like the statutory enactments in other countries adopted more recently, the Canadian RAR regime is likely to be considerably more structured and involve much more substantive judicial supervision. Continue Reading Canada Proposes New Deferred Prosecution Agreement Program
In an indictment unsealed on March 23, 2018, the Department of Justice (DOJ) brought criminal charges against nine Iranian nationals affiliated with the Mabna Institute in Iran, alleging computer intrusion, fraud, and aggravated identity theft. Prosecutors charged the defendants with conspiring to steal a massive amount of intellectual property from universities, private companies, and government institutions worldwide, obtaining more than 31 terabytes of data. The defendants allegedly acted on behalf of the Islamic Revolutionary Guard Corps (IRGC), which is an arm of the Iranian government whose responsibilities include foreign operations and intelligence gathering. In addition to the announced charges, the nine defendants and the Mabna Institute were also designated for sanctions by the Treasury Department, Office of Foreign Asset Control, pursuant to Executive Order 13694 “Blocking the Property of certain Persons Engaging in Significant Malicious Cyber-Enabled Activities.” Continue Reading Department of Justice Indicts Iranian Hackers, Revealing Significant Data Breach and Targeting of Intellectual Property of Private Companies and Educational Institutions
The European Commission’s proposal for a Regulation on mutual recognition of asset freeze and confiscation orders (the “Proposed Regulation”), introduced in December 2016, aims at improving the cross-border enforcement of asset freeze and confiscation orders within the EU. It is part of a broader set of measures aimed at combating financial crimes, which includes a proposed Directive on countering money laundering through criminal law and a proposed revised Regulation on controls on cash entering or leaving the Union.
In January 2018, the Civil Liberties, Justice and Home Affairs Committee of the European Parliament (the “EP Committee”) issued a report on the Proposed Regulation, which proposes certain amendments to the Proposed Regulation aimed at taking into consideration fundamental rights guaranteed by the case law of the European courts, such as the right to property, due process, effective remedy and access to justice. In particular, in line with requests made by several EU Member States, the EP Committee proposes to include in the Proposed Regulation a provision for the non-recognition of orders based on non-compliance with fundamental rights. Continue Reading Striking the Balance – Mutual Recognition of Freezing and Confiscation Orders Within the EU and Fundamental Rights
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
Companies operating in Italy should take note of an important change in Italian law introducing more comprehensive regulations on whistleblowing procedures in the public and non-financial private sector. Among other relevant aspects, Law No. 179/2017, which entered into force on December 29, 2017, expands existing whistleblowing protections to the private sector, requiring companies that have adopted formal compliance programs pursuant to Legislative Decree No. 231/2001 (“Decree 231”) to also implement a formal whistleblower program.
Prior to Law No. 179/2017, only financial services and banking firms were required to implement formal whistleblower programs, pursuant to Italian legislation implementing European Directive 23/2013 (CRDIV). In addition, Law No. 190/2012, also called the “Anticorruption Law,” provided protection against retaliation for civil servants who reported the commission of a wrongdoing. Many companies operating in Italy have adopted formal compliance programs pursuant to Decree 231, incentivized by a provision that affords a defense against certain types of criminal offences for firms with such a program. Law No. 179/2017 requires such companies to integrate a formal whistleblower policy as part of their compliance programs. Continue Reading The New Italian Law on Whistleblowing Procedures and Its Impact on Compliance Programs
On January 15, 2018, Singapore’s Law Minister, Kasiviswanathan Shanmugam SC, announced during an event held by the Law Society of Singapore a proposal for up to 50 different amendments to the city’s Criminal Procedure Code and Evidence Act, to include a procedure for Deferred Prosecution Agreements (“DPA”). The proposed legislation, if introduced, would make a significant change in the enforcement tools available to Singaporean prosecutors, and comes against a backdrop of an increasingly high-profile focus on corruption and anti-money laundering prosecutions. Continue Reading What To Look For In Proposed Singapore Deferred Prosecution Agreement (“DPA”) Legislation