On May 9, Deputy Attorney General Rod J. Rosenstein provided remarks at the American Conference Institute’s 20th Anniversary New York Conference on the Foreign Corrupt Practices Act and announced a new policy designed to promote coordination and limit the imposition of multiple penalties on a company for the same conduct, which he referred to as “piling on.”

This memorandum highlights some of the most salient points from Rosenstein’s remarks, and describes the key elements of the new policy, with an eye towards potential implications for enforcement actions going forward.

The 2018 Consolidated Appropriations Act, which was signed by President Donald Trump on March 23, 2018, included a little-debated provision that revised portions of the 1986 Stored Communications Act (“SCA”) to permit the government to access through the use of a warrant or subpoena stored communications held abroad by providers of electronic communications services that are subject to United States jurisdiction.

The Clarifying Lawful Overseas Use of Data Act – or “CLOUD Act” – establishes that the SCA’s provisions concerning the production of electronic communications extend to those held abroad, establishes a framework for service providers to challenge an SCA warrant, directs courts to conduct a limited comity analysis to balance certain factors relevant to cross-border transfers of data, and introduces an incentive for foreign governments to enter into executive agreements with the United States governing cross-border data requests.

Prior to the enactment of the CLOUD Act, the Supreme Court was poised to rule in the case Microsoft Corporation v. United States of America, No. 17-2, on whether the SCA in its previous form permitted the use of a warrant to obtain electronic communications stored by a U.S. company on foreign servers. The relevance of that case, which was argued in February, is substantially undermined by this Congressional action.

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This year’s annual meeting of China’s legislature, the National People’s Congress (“NPC”), brought forth a series of consequential changes that continue to push forward President Xi Jinping’s anti-corruption campaign while consolidating the President’s power through new party appointments and the elimination of the two-term limit, and streamlining government bureaucracies through the restructuring of several government agencies.  Among the key changes was the creation of a new anti-corruption “super” agency, vested with broad powers to investigate and recommend for prosecution prosecute public-sector corruption throughout the country. Continue Reading China’s New Anti-Corruption Authority And Related Developments

Joon Kim, former Acting U.S. Attorney for the Southern District of New York, has rejoined the firm’s New York office as a partner in the enforcement and litigation group.

From March 2017 to January 2018, Joon served as the Acting U.S. Attorney for the Southern District of New York. As the most senior federal law enforcement officer in the district, he oversaw all criminal and civil litigation conducted on behalf of the United States and supervised the work of approximately 220 Assistant U.S. Attorneys handling a wide range of cases, including securities fraud, cybercrime, domestic and foreign corruption, money laundering, tax litigation, terrorism, racketeering, and Bank Secrecy Act and sanctions violations, as well as civil rights, civil enforcement, and environmental matters. Before becoming Acting U.S. Attorney, he served for four years in various leadership positions in the office, including as the Deputy U.S. Attorney, Chief of the Criminal Division, and Chief Counsel to the U.S. Attorney. Continue Reading Joon Kim Returns to Cleary Gottlieb

On March 14, 2018, U.S. Commodity Futures Trading Commission (“CFTC”) Chairman J. Christopher Giancarlo gave a speech at the Futures Industry Association (“FIA”) annual meeting in Boca Raton, Florida, in which he reviewed the CFTC’s activities during the past year and provided a preview of CFTC priorities for the coming year.[1]  Among the issues addressed in Chairman Giancarlo’s speech were the CFTC’s successes and priorities in enforcement, including in particular initiatives in the area of anti-spoofing and virtual currencies. Continue Reading Recent CFTC Enforcement Actions: Spoofing and Virtual Currency Task Forces

Earlier this month, partners Jennifer Kennedy Park and Kimberly Spoerri participated in a panel co-hosted by The Conference Board and Cleary Gottlieb to discuss the board’s oversight role in issues related to sexual harassment.

Moderator Doug Chia, executive director of The Conference Board, Jen and Kim discussed relevant legal regulations and frameworks and the risks of non-compliance, as well as the policies, procedures and best practices boards and senior management can employ to mitigate risks.  They discussed the responsibility the board has in setting company culture through tone at the top, and how the failure by the board and senior management to be proactive in this area can affect compliance and oversight throughout a company.  The discussion also included ways the board can tangibly address these issues.  Continue Reading Cleary Partners Participate in Panel Discussion on Board Oversight of Sexual Harassment

Within the past few months, the Department of Justice (the “DOJ”) has released a series of memos that indicate a shift in its policy related to the treatment of agency guidance documents.  This memorandum seeks to explain this policy shift and analyze its potential impact in the area of False Claims Act (“FCA”) enforcement. Continue Reading Shift in Policy on Guidance Documents Suggests Change in DOJ Attitude Towards FCA Enforcement

The U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) released its 2018 National Exam Program Examination Priorities.  The 2018 priorities highlight areas of emphasis for OCIE, including cryptocurrencies, cybersecurity, anti-money laundering, and issues affecting retail investors (especially seniors and those saving for retirement).  While the core areas of focus and many of the priorities for 2018 are similar to those from 2017, there is a clear shift in emphasis that we attribute to the change in leadership at the SEC.  Some specific changes also likely stem from OCIE’s 2017 examination findings, recent market developments, and trends in enforcement.  Continue Reading Lessons for Broker-Dealers and Investment Advisers from the SEC Office of Compliance Inspections and Examinations 2018 Priorities

On January 31, 2018, the U.S. Court of Appeals for the D.C. Circuit upheld a federal statute curbing the President’s power to fire the director of the Consumer Financial Protection Bureau (“CFPB”), a financial regulator with the mandate to enforce federal consumer protection laws.[1]  In a 7-3 en banc decision, the Court held that it is constitutional for the CFPB director to be appointed to a five-year term, removable by the President only for “inefficiency, neglect of duty, or malfeasance in office.”[2]  At the same time, however, the Court affirmed the vacature of a $109 million sanction levied by former CFPB director Richard Cordray against PHH Corporation (“PHH”), a large mortgage lender.[3]

As a result of the Court’s decision, the enforcement action will be remanded back to the CFPB, now under the leadership of Trump Administration-appointee Mick Mulvaney.  The remand comes at a time of substantial uncertainty as to the CFPB’s enforcement prerogatives.  In a leaked email to the entire CFPB staff on January 23, 2018, Mulvaney indicated that the CFPB would no longer “push the envelope” when it comes to enforcing consumer protection laws, and would instead be reviewing “everything that [it] do[es], from investigations to lawsuits and everything in between.”[4]  Indeed, the CFPB has since issued several Requests for Information to encourage public comment as it reviews its policies and processes related to enforcement and civil investigative demands.[5]  Continue Reading D.C. Circuit Rules CFPB’s Structure Constitutional but Vacates $109 Million Enforcement Award

In recent months, sexual harassment allegations against well-known figures across a growing number of industries have become a common feature in news headlines.  In the wake of these allegations, many companies have concluded that their current policies and procedures related to sexual harassment and discrimination are inadequate.  Against the backdrop of this rapidly evolving landscape, companies are considering how to improve their policies and procedures not only to appropriately and effectively respond to allegations of sexual harassment, but also to deter inappropriate behavior going forward and foster an environment of openness, diversity and inclusion in their workplaces.  To that end, we address 8 key questions that companies should be asking themselves in developing policies and procedures to confront sexual harassment and other forms of misconduct in today’s workplace.

Click here, to read the full memo