On December 5, 2017, a Magistrate Judge in the United States District Court for the Southern District of Florida held in SEC v. Herrera that the “oral download” of external counsel’s interview notes to the Securities and Exchange Commission waived protection from disclosure under the attorney work product doctrine.  As a result of the decision, issued in an SEC enforcement action, counsel was ordered to disclose to certain former employees of its client those interview notes that were orally downloaded to the SEC.  Herrera highlights issues that internal and external lawyers should carefully consider when conducting internal investigations and particularly when providing downloads to the government of material that may be privileged or subject to work product protection.

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The SEC has recently signaled an increased concern with the offerings and marketing of Initial Coin Offerings (“ICOs”),[1] which should be of interest to companies and institutions involved with ICOs.  On November 1, 2017, the SEC Division of Enforcement and Office of Compliance Inspections and Examinations (“OCIE”) jointly issued a public statement warning celebrities and other influencers promoting Initial Coin Offerings (“ICOs”) about potential violations of a host of federal securities laws, including the anti-touting and anti-fraud provisions of the federal securities laws.  Specifically, the public statement noted that endorsements may be unlawful if they do not “disclose the nature, source, and amount of any compensation paid, directly or indirectly . . . in exchange for the endorsement.,” and that endorsers may also face liability for potential violations of the anti-fraud provisions, for participation in an unregistered securities offering, and for acting as unregistered brokers.  The public statement also noted that investment decisions should not be based solely on an endorsement and cautioned that “celebrity endorsement may appear unbiased, but instead be part of a paid promotion.”  The public statement follows an investigative report issued by the Division of Enforcement on July 25, 2017, which announced that blockchain technology-based coins or tokens sold in an ICO may be a form of security under the Securities Act of 1933 and the Securities Exchange Act of 1934.

The SEC’s announcement follows recent endorsements of such ICOs by celebrities such as Floyd Mayweather, DJ Khaled, Paris Hilton and Jamie Foxx, who each used their social media platforms to promote ICOs in the past months.  According to an article published byThe New York Times five days before the SEC’s public announcement, celebrity endorsements have helped raise $3.2 billion in ICOs this year, which is a 3,000 percent increase over the total amount raised in ICOs last year.

In its statement, the SEC said it “will continue to focus on these types of promotions to protect investors and to ensure compliance with the securities laws.”  Additionally, the SEC Office of Investor Education and Advocacy posted an Investor Alert on their website the same day cautioning against investment decisions based on endorsements from celebrities and encouraging investors to report any possible securities fraud to the SEC.  These recent pronouncements indicate a dovetailing of recent areas of focus for the SEC’s enforcement program—new technologies that expand the scope and ease of securities offerings with increased efforts to focus enforcement resources on areas having the potential to harm retail investors.

Following the SEC’s public statement and Investor Alert signaling increased attention on ICOs,  the SEC announced that it had filed charges against PlexCorps and two of its principals based on an alleged ICO fraud.  PlexCorps had raised up to $15 million in an ICO this year by promising a 13-fold profit in less than one month.  The company has been charged with violating anti-fraud provisions and the registration provision of the federal securities laws. These charges are the first filed by the SEC’s Cyber Unit, which was created in September 2017.  Robert Cohen, the Chief of the Cyber Unit, stated “[t]his first Cyber Unit case hits all the characteristics of a full-fledged cyber scam and is exactly the kind of misconduct the unit will be pursuing.” To read more about this case, please see our previous article.

[1] ICOs are fundraising mechanisms, similar to crowdfunding, in which companies create and sell new virtual currency, in the form of blockchain-based coins or tokens.

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.

On November 29, 2017, the U.S. Department of Justice (“DOJ” or the “Department”) announced a new FCPA Corporate Enforcement Policy (the “Enforcement Policy”) applicable to investigations of companies under the Foreign Corrupt Practices Act (“FCPA”). The Enforcement Policy builds on the FCPA Pilot Program (the “Pilot Program”) that has been in effect since April 2016, and provides additional transparency regarding the credit the Department will provide to companies that self-report FCPA violations and then cooperate with the resulting investigation. By and large, the new policy, which is now part of the U.S. Attorney’s Manual (“USAM”), makes key provisions of the Pilot Program permanent, and significantly, it also promises additionalbenefits to companies that qualify. The Enforcement Policy signals a further effort by DOJ to encourage companies to self-report and cooperate, although the policy also leaves the Department with considerable leeway in assessing key threshold questions for eligibility even for companies that do self-report.

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On November 15, 2017, the Securities and Exchange Commission Division of Enforcement released its annual report detailing its priorities for the coming year and evaluating enforcement actions that occurred during Fiscal Year (“FY”) 2017. The Report captures the SEC during a period of transition—Chairman Jay Clayton assumed the helm of the Commission in May 20172 and Stephanie Avakian and Steven Peikin were named co-directors of the Enforcement Division soon thereafter.3 The Report provides insight into changes in the SEC’s approach to enforcement actions and a glimpse into its priorities for the coming year. The following summarizes key shifts from FY 2016, outlines the Enforcement Division’s current priorities, and, in view of its stated focus on the conduct of investment professionals and protection of retail investors, provides guidance to the investment management industry as it gears up for the coming year.

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Following the 2016 election, it has been widely assumed that the SEC’s Division of Enforcement would no longer pursue the “broken windows” policy implemented under then-SEC Chair Mary Jo White.  Under that approach, the Division of Enforcement intentionally pursued smaller, non-fraud cases in an attempt to improve the overall compliance culture within the securities industry.  Pronouncements this fall by the Co-Directors of the Division of Enforcement, Stephanie Avakian and Steven Peikin, on their face confirm that assumption, suggesting an end to “broken windows” as a broad-based strategy focused on street-wide sweeps for strict liability and other non-scienter conduct.  However, signs persist that the Enforcement Division will continue to pursue some varieties of non-scienter cases, particularly where there exists, even indirectly, the potential for harm to retail investors.

Continue Reading Is the SEC’s Broken Windows Initiative Over? The Picture Is Somewhat Mixed.

On October 26, the SEC staff provided, in three related no-action letters, a 30-month grace period during which it will not pursue enforcement actions against U.S. broker-dealers and their client money managers subject to European Union regulations, including investment advisers, for accepting or making direct and separate (i.e., hard dollar) payments for research.  This grace period temporarily relieves a regulatory conflict concerning how market participants provide and pay for research between current U.S. securities laws and the European Union’s new Markets in Finance Instruments Directive (MiFID II) rules, which will take effect on January 3, 2018. Continue Reading The SEC’s Temporary Enforcement Grace Period to Mitigate Legal Status and Operational Implementation Issues Over the EU’s New Research Regulation

On October 27, 2017, the Hong Kong Securities and Futures Commission (“SFC”) issued Guidelines for Reducing and Mitigating Hacking Risks Associated with Internet Trading (the “Guidelines”),1 a set of baseline cybersecurity requirements that all persons licensed or registered with the SFC and engaged in internet trading will be required to implement. The Hong Kong Monetary Authority (“HKMA”) simultaneously issued a circular to CEOs of Registered Institutions requiring them to apply the Guidelines.

The new guidelines should be viewed as requirements for securities and futures dealers and asset managers registered with the SFC and banks supervised by the HKMA (which include a number of foreign banks that operate branches in Hong Kong). For e-commerce firms and other companies that do business in or have connections to Hong Kong, the new guidelines should additionally be viewed as relevant guidance for best practices in cybersecurity.

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In a September 25, 2017 speech in New York, U.S. Commodity Futures Trading Commission (the “CFTC”) Division of Enforcement (the “Division”) Director James McDonald outlined the CFTC’s focus on creating greater incentives for self-reporting and cooperation in order to deter and detect misconduct in the commodities markets. Director McDonald’s speech accompanied the release of an Updated Advisory on Self Reporting and Full Cooperation, which supplements the guidance issued by the CFTC earlier this year.

The new guidance reflects an effort by the CFTC to rebalance the incentives facing firms who identify potential misconduct to favor voluntary reporting and pro-active cooperation, reinforced by the potential for concrete benefits in the form of fine reductions and, potentially, declination of prosecution in appropriate cases. Commodities market participants and financial institutions should take note of this guidance when considering how to respond to potential evidence of misconduct and in dealing with the Division.

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On August 18, 2017, in United States v. Krug, the Second Circuit revisited the boundaries of attorney-client privilege in the context of joint defense agreements, reversing a district court order to preclude testimony of a cooperating co-defendant.  The decision serves as a useful reminder of certain best practices when participating in joint defense (or “common interest”) agreements to ensure that the communications are protected by the privilege. Continue Reading Second Circuit Decision Reiterates The Limitations of Joint Defense Agreements