Regulation

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The financial and human cost on individuals of arguable “overcriminalization” is enormous, and defense counsel certainly wonder whether that damage can be justified in light of the ultimate legal outcomes of the white-collar dramas we witness.

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Just three months ago, Acting Director of the U.S. Patent and Trademark Office (USPTO) Coke Morgan Stewart rescinded existing guidelines governing the Patent Trial and Appeal Board’s (PTAB) discretion to deny petitions for inter partes review (IPR) and post-grant review (PGR) when parallel litigation is already pending in federal district court or the U.S. International Trade Commission (ITC). Acting Director Stewart replaced those guidelines with new interim processes that rely on the Director to issue decisions on patent owners’ requests for discretionary denials.

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As geopolitical tensions escalate and global sanctions regimes become more aggressive, the Ovsiannikov case serves as a stark warning: checkbox compliance is no longer sufficient. EDD must become the operational standard — not just in banking, but across every sector involved in high-risk transactions.

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Key Risks for Government Contractors, Tech Companies and Healthcare EntitiesThe DOJ recently unveiled a series of policy updates that shifted the white-collar enforcement landscape. These updates — an emphasis on the False Claims Act, a shift away from the Foreign Corrupt Practices Act, and increased incentives for self-disclosure and whistleblowers — are poised to reshape how companies approach compliance.

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The focus of this article is on the spectrum of white collar cases in which the lawyer believes there is a credible chance of winning based not only on an assessment of weaknesses in the government’s case but also of other factors such as loss of the opportunity to favorably litigate outcome-determinative evidentiary issues. Too often in these situations defense lawyers recommend a guilty plea in the mistaken belief that conviction at trial will result in a significant trial penalty far greater than a plea bargain sentence. By reviewing empirical sentencing data we hope to dispel this widely held, but ultimately mistaken view.

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On July 8, 2025, the DOJ, the U.S. Postal Service (USPS) and the USPS Office of Inspector General entered into a memorandum of understanding creating a whistleblower rewards program “to enable whistleblowers to report specific, credible and timely information about possible federal criminal violations.” The first of its kind, it creates a monetary incentive for whistleblowers to report criminal antitrust violations involving such conduct as price fixing, bid rigging, market allocation and even certain types of predatory conduct by monopolists.

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In May, Matthew R. Galeotti, Head of the Criminal Division of the Department of Justice, issued a department-wide memorandum setting forth the department’s enforcement priorities in the white-collar crime sphere. In it, the department announced an effort to combat crime that “poses a significant threat to U.S. interests,” including the “enabling of shadow-banking and sanctions evasions by hostile nation-states and terror regimes.” A potential obstacle to these enforcement efforts is the doctrine of foreign sovereign immunity. This doctrine, as its name suggests, has been used by courts to grant judicial immunity to foreign states, their instrumentalities, and their respective heads of state.

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As regulatory shifts grow more unpredictable, corporate legal departments are stepping up their role in risk management — even as many feel they’re navigating in the dark. Their top concern? A surge in new — and often conflicting — regulations spanning everything from consumer privacy and AI governance to tax and trade.