As discussed in Cleary Gottlieb’s December 21, 2018 Alert Memorandum, on December 18, 2018, the U.S. Court of Appeals for the D.C. Circuit issued an important ruling in In re Grand Jury Subpoena, holding, inter alia, that foreign state-owned corporations are subject to criminal jurisdiction in the United States and upholding Special Counsel Mueller’s authority to serve and enforce a grand jury subpoena on a sovereign entity.

The foreign state-owned corporation subsequently sought a stay of enforcement of the contempt order from the Supreme Court, which Chief Justice Roberts granted.  This Alert Memorandum focuses on two key developments that took place on January 8, 2019.  First, the Supreme Court, voting as a whole, lifted the administrative stay previously entered by Chief Justice Roberts.  Second, the D.C. Circuit Court issued its full, albeit partially redacted, opinion, which provides additional reasoning for the panel’s decision, seeks to reconcile any purported conflict with rulings issued by other Circuit Courts on the legal question at hand, and focuses on the state owned nature of the entity involved.

Please click here to read the full Alert Memorandum.

There have been plenty of press reports about the SEC’s settlement with Elon Musk arising from his tweeting about taking Tesla private.  But the concurrent settlement with Tesla itself provides interesting lessons for disclosure and governance at public companies.

Tesla agreed to pay a $20 million penalty and agreed to several “undertakings” to strengthen its governance and controls including a requirement that it add two independent directors to its Board.  And, under his own settlement, Musk agreed to step down for three years as chairman of the Board of Directors, although he is allowed to continue as CEO.  Continue Reading The Tesla Settlement – What It Means for Other Companies

Last Thursday, November 30, 2017, Argentina promulgated its Corporate Criminal Liability Law (Ley No. 27,401).  This new law, which will enter into force early next year, establishes criminal liability for corporate entities, whether national or foreign, that engage in corruption offenses such as national and transnational bribery and influence peddling, unlawful enrichment of public officials, and the publication of false or incomplete financial information to conceal bribery or influence peddling.

Among other interesting features, Argentina’s Corporate Criminal Liability Law sets out sanctions specific to corporate entities (including fines of up to 5 times the amount of the improper benefit obtained or that could have been obtained), provisions for the exclusion or reduction of liability, as well as regulations relating to compliance programs and cooperation agreements.

The full text of Argentina’s Corporate Criminal Liability Law can be accessed here.