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Business Crimes Bulletin
It’s Getting Chilly: Federal Courts Continue to Wrestle With Impact of Aggressive DOJ Public Corruption Cases
Joseph F. Savage Jr. and Christopher J.C. Herbert
In an environment of aggressive federal prosecution and regulation both businesses and public officials are challenged to identify the permissible line between proper financial transactions — things like campaign contributions and business entertainment — and unlawful payments. And, in what the First Circuit called a “novel theory of Hobbs Act extortion,” public officials now have to struggle with the scope of permissible advocacy — when does advocacy for constituents become extortion?
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Business Crimes Bulletin
Supreme Court’s October Term 2018 Contains Hints of Things to Come
Harry Sandick and Tara Norris
Part One of a Two-Part Article
In its recently ended October Term 2018, the U.S. Supreme Court decided several notable criminal law decisions that will have a meaningful impact on white-collar practitioners’ work and, importantly, offer clues regarding the movement of the criminal law in subsequent terms. In this two-part article, we review several of the key decisions and consider their implications, both for practitioners in this area and for Court-watchers interested in future Court decisions.
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Business Crimes Bulletin
SEC’s Reboot on Waiver Requests in Enforcement Settlements
Robert J. Anello and Richard F. Albert
SEC Chairman Jay Clayton recently announced a change in how the SEC will consider requests for waivers of certain serious collateral consequences that would otherwise result from settlement of an SEC enforcement action. These collateral consequences, often referred to as “bad actor” or “bad boy” provisions, can vary greatly and may disqualify an entity from conducting certain business or utilizing certain means to offer securities.
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Business Crimes Bulletin
Business Crimes Hotline
Juliet Gunev
Canadian Clean Fuel Technology Company and Former CEO Pay $4.1 Million to Settle China Related FCPA Case
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Business Crimes Bulletin
In the Courts
Juliet Gunev
New York Brokerage and Two Executives Ordered to Pay $1.58 Million for Misleading Investors In High-Yield Securities Case
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Business Crimes Bulletin
Immigration Form I-9: A Form That Can Have Severe Consequences
Marjorie J. Peerce, Dennis Burke and Maya Salah
This article addresses the history of Form I-9 and current initiatives underway by DHS.
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Business Crimes Bulletin
Crowdfunding, Reg D and Reg A
Jacqueline C. Wolff and Brian S. Korn
The New Routes for Access to Capital and the Potential Legal and Regulatory Risks
Although the business community lauded the arrival of new crowdfunding laws, the enforcement community has had a different take on them. As stated in 2017 by then Deputy Attorney General Rod Rosenstein: “The potential downside of crowdfunding is that it occurs outside the watchful eye of a regulated banking and financial industry. Unregulated websites therefore provide a platform for criminals to defraud potential investors.”
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Business Crimes Bulletin
“Mismarking”: Developments in Valuation Fraud
Telemachus P. Kasulis
As the DOJ expands its mismarking inquiries beyond stocks and bonds and into areas like private equity, recent cases illuminate the increasing need for robust internal controls designed to eliminate the incentives for an employee or manager to overvalue assets.
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Business Crimes Bulletin
In the Courts
Juliet Gunev
New Developments In Och-Ziff FCPA Settlement As Brooklyn Judge Grants Victim Status to Former Investors In Restitution Claim over Lost African Mining Venture
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Business Crimes Bulletin
Business Crimes Hotline
Juliet Gunev
Former Cognizant Technology COO Settles FCPA Case In Relation to India Office Construction Project
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Business Crimes Bulletin
‘Mixed Messages’: DOJ Efforts to Dismiss Qui Tam Actions
Jonathan S. Feld and Katie J. Welch
Despite the historical trend of reduced government involvement in qui tam actions, the government is sending “mixed messages” regarding its view of FCA relators.
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Business Crimes Bulletin
They’re Baaaaack. Disclosure-Based 14(A) Claims Making a Ghostly Return
Johanna Fricano
Following the Delaware Chancery Court’s ruling in In re Trulia, Inc. that effectively closed the door to 14(a) disclosure-based settlements in Delaware state court, federal courts saw an influx of 14(a) “merger objection” litigation. More often than not, these suits are quickly dismissed following the company’s issuance of a supplemental proxy with additional disclosures and the parties negotiate a mootness fee. The transaction closes and all parties move on — or so we thought. An emerging trend suggests that exposure to 14(a) claims may coming back from the near dead.
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Business Crimes Bulletin
Epstein Saga Puts Spotlight on Crime Victim’s Rights Act
Robert J. Anello and Richard F. Albert
The significance of the Crime Victims’ Rights Act (CVRA), which is intended to guarantee crime victims a role in federal criminal proceedings, has been highlighted in the case of Jeffrey E. Epstein, the financier accused of sexually trafficking underage girls. Because the government’s noncompliance with the CVRA in negotiating Epstein’s plea deal in 2008 led to Alexander R. Acosta losing his cabinet position as Secretary of Labor, practitioners can expect prosecutors and judges to be more focused on the CVRA going forward.
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Business Crimes Bulletin
Business Crimes Hotline
Juliet Gunev
Microsoft and Hungarian Subsidiary Agree to Pay $25 Million to Resolve FCPA Investigations in Hungary, Saudi Arabia, Turkey and Thailand
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Business Crimes Bulletin
In The Courts
Juliet Gunev
Maryland Jury Convicts Former CEO of Israeli Company for Role In $145 Million Binary Options Fraud
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Business Crimes Bulletin
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
Patrick Campbell, Jonathan New and Madison Gaudreau
This article explores legal developments over the past year that may impact compliance officer personal liability.
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Business Crimes Bulletin
Insider Trading Rules Still Not Clear
John C. Coffee Jr.
It has been nearly 60 years since the SEC first clearly prohibited insider trading. You would think that would be long enough for the doctrinal rules to have become reasonably clear. Think again!
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Business Crimes Bulletin
Tech Companies Snapping Up White-Collar Lawyers
Xiumei Dong
As Silicon Valley technology companies face increasing government scrutiny, experienced white-collar practitioners are becoming hot commodities among the law firms seeking to represent tech-focused clients.
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Business Crimes Bulletin
Business Crimes Hotline
Juliet Gunev
Walmart and Brazillian Subsidiary Reach $282 Million Settlement with the DOJ and SEC to Resolve FCPA Investigations
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Business Crimes Bulletin
In the Courts
Juliet Gunev
Platinum Partners’ Executives Convicted Over $150 Million Bond Scheme; Acquitted on Billion Dollar Fraud Allegations
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Business Crimes Bulletin
The International Encryption Debate: Privacy Versus Big Brother
Robert J. Anello and Richard F. Albert
Although increased reliance on technology such as emails and texts has provided greater opportunity to gather evidence of criminal activity, law enforcement agencies around the world complain that encryption technologies make it difficult to catch criminals and terrorists and therefore should be restricted.
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Business Crimes Bulletin
Carnival Execs May Face Criminal Charges Over Compliance Failures
Sue Reisinger
Once again a company has felt the pain that comes when it is caught violating an agreement with the Department of Justice. After taking a tongue lashing from a federal judge for repeatedly violating the law, Carnival Corp. executives have until autumn to hire a chief compliance officer and begin meaningful compliance reforms at the world’s largest cruise line.
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Business Crimes Bulletin
The Yates Memo is Here to Stay: Signs of Increasing Efforts to Hold Individuals Criminally Liable for Corporate Wrongdoing
Carolyn H. Kendall and Yune D. Emeritz
It is axiomatic that companies cannot do wrong without the actions of individuals. However, the trend over the past few decades, with a few exceptions, has been that individuals generally were not prosecuted for their roles in corporate wrongdoing that harmed the public welfare. However, there appears to be a recent escalation in prosecutions of corporate executives.
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Business Crimes Bulletin
How to Respond to a Search Warrant
Marjorie Peerce and Mark S. Kokanovich
Imagine you are in-house counsel, working on a transactional document, when you receive a breathless call from a manager at one of your warehouses that a search warrant is being executed on the premises. What do you do?
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Business Crimes Bulletin
DOJ Corporate Enforcement Guidelines Are Placing Individual Defendants Between a Rock and a Whirlpool
David S. Krakoff, Bradley A. Marcus and Nadav Ariel
For companies suspected of wrongdoing, cooperating with DOJ investigations and self-disclosing their misconduct often appears to be their only option to avoid prosecution and reduce large financial penalties. But, these benefits often come at a price, especially to company employees who are caught in the middle.
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Business Crimes Bulletin
Carrot Replaces Stick: Corporate Crime Enforcement In the Trump Administration
Joseph F. Savage, Jr. and Marielle Sanchez
Elections have consequences, and the election of President Trump has resulted in a significant shift in law enforcement priorities. Corporate enforcement activity is at lows not seen in decades, despite an overall increase in federal criminal cases. This is a product of a change in priorities, both in terms of types of offenses and types of offender. So, for the time being, there will be almost unprecedented opportunity to achieve favorable resolutions for corporate clients.
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Business Crimes Bulletin
Judicial Skepticism Mounts Over the Use and Reach of Appellate Waivers
Harry Sandick and Danielle Quinn
A defendant who pleads guilty is usually required to waive a host of constitutional and statutory rights, such as the right to a jury trial, the right to confront and cross-examine adverse witnesses, the right to testify and present evidence. However, many defendants are also required to waive their right to appeal in order to receive a favorable plea agreement with the government.
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Business Crimes Bulletin
Should Trump’s Foreign Policy Affect Criminal Prosecutions?
Robert J. Anello and Kostya Lantsman
Business has gone global. So too has business-related crime. In the interconnected business environment, white-collar criminal investigations and prosecutions frequently present cross-border issues and affect U.S. foreign relations. Indeed, in some recent high-profile cases, the Trump administration has implied that it sees law enforcement — or the lack of it — as one of the tools in its foreign policy arsenal.
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Business Crimes Bulletin
In the Courts
Surya Kundu
Seventh Circuit Distinguishes Between Truth and Truthiness
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Business Crimes Bulletin
Business Crimes Hotline
Surya Kundu
To Release or Not Release Grand Jury Documents? The D.C. Circuit Says No.
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Business Crimes Bulletin
“Spoofing” as Fraud: A Novel and Untested Theory of Prosecution
Jodi Misher Peikin and Justin Roller
The DOJ has signaled its intent to pursue prosecutions for spoofing — which the law defines as “bidding or offering with the intent to cancel the bid or offer before execution” — aggressively. This article begins with a brief discussion of the elements that the government must prove to establish commodities fraud and wire fraud. It then examines recent spoofing prosecutions that raise important questions about the applicability of the traditional fraud statutes to spoofing-related activity. How the federal courts answer these open questions will have significant implications for participants in the commodities markets.
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Business Crimes Bulletin
FCA Cases: Convincing DOJ to Move to Dismiss
Jacqueline C. Wolff
Recent actions by the DOJ suggest that although the DOJ may continue to prosecute certain relators’ FCA cases, other relators may find themselves on the other side of a government motion to dismiss.
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Business Crimes Bulletin
In the Courts
Kate Monks
The Ninth Circuit affirmed the majority of an $11 million jury verdict brought by a whistleblower who claimed that his company fired him for raising concerns about possible FCPA violations.
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Business Crimes Bulletin
Business Crimes Hotline
Kate Monks
The former CEO of a pharmaceutical company was found guilty by a jury on eight counts of wire fraud affecting a financial institution for orchestrating a scheme that led to the collapse of one of Puerto Rico’s biggest banks.
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Business Crimes Bulletin
FCA and Statute of Limitations: A Puzzle for the Supreme Court
Jonathan S. Feld, Eric Klein and Andrew VanEgmond
The FCA is not a model of clarity. In a certiorari petition in United States ex rel. Hunt v. Cochise Consultancy, the U.S. Supreme Court will address an area of uncertainty that has led to a three-way circuit split regarding the FCA’s statute of limitations. Depending on the outcome, FCA defendants could end up facing even more claims up to a decade old or, alternatively, have a new limitation on FCA actions upon which to rely.
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Business Crimes Bulletin
Eighth Circuit Rejects Ponzi Scheme Presumption to Protect Legitimate Loan Repayments
Michael L. Cook
In Stoebner v. Opportunity Finance, LLC, the U.S. Court of Appeals for the Eighth Circuit held that “… Ponzi scheme payments to satisfy legitimate antecedent debts to defendant banks could not be avoided” by a bankruptcy trustee “absent transaction-specific proof of actual intent to defraud or the statutory elements of constructive fraud — transfer by an insolvent debtor who did not receive reasonably equivalent value in exchange.”
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Business Crimes Bulletin
Mystery Subpoena Case at High Court Could Expand U.S. Authority
Peter B. “Bo” Rutledge and Amanda W. Newton
Rare Supreme Court holiday activity and ongoing news coverage about special counsel Robert Mueller’s investigation has drawn much attention to the enigmatic case of In Re Grand Jury Subpoena. The matter is unremarkable, presenting familiar issues of international litigation. Upon further examination, however, the case may have the potential to expand the authority of United States courts over foreign states and their agencies or instrumentalities.
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Business Crimes Bulletin
In the Courts
Colleen Snow
New Charges in Insurance Corporation of Barbados Limited Bribery Case
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Securities Commission Malaysia Issues Maximum Fine for Deloitte Related to 1MDB Audits
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Securities Commission Malaysia Issues Maximum Fine for Deloitte Related to 1MDB Audits
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Business Crimes Bulletin
Beyond the FCPA: M&A Due Diligence Under the Expanded DOJ Corporate Enforcement Policy
Jonathan B. New and Elias D. Trahanas
Over the past few years, the U.S. Department of Justice (DOJ) has taken notable steps to advance the axiom that the business community and law enforcement are “partners, not adversaries.” DOJ has now taken its guidance one step further, announcing that the FCPA Corporate Enforcement Policy would apply to all potential wrongdoing discovered by an acquirer in the course of a merger or acquisition, not just to FCPA violations.
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Business Crimes Bulletin
Sticking a Hand in the Internet Cookie Jar
Jeffrey Higel, Michael Bahar and Mike Nelson
As convenient, useful and cool mobile technology and interconnected devices are, they come with risks that remain largely unseen or, worse, ignored. Some…
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Business Crimes Bulletin
U.S. Trade-Secret Theft Prosecutions Target China and Are on the Rise
Phillip Bantz
The U.S. and China are in the midst of an escalating trade war and the DOJ has been prosecuting trade misappropriation cases against China with notable vigor as of late.
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Business Crimes Bulletin
In the Courts
Dennis Mahoney
Fifth Circuit Reverses Ponzi Funds Ruling
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Business Crimes Bulletin
Business Crimes Hotline
Dennis Mahoney
Head of International NGO Convicted of Bribery, Money Laundering Crimes
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Business Crimes Bulletin
Fighting Biometric Fraud on the Blockchain
Alastair Johnson
The use of SMS verification codes as a security measure has recently been exposed as a mere stop-gap solution because of the ability of hackers to fraudulently take over phone numbers. Biometrics meanwhile is proving to be one of the best new technologies to combat fraud and identity theft.
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Business Crimes Bulletin
10 Common Mistakes When Dealing With DOJ Antitrust Criminal Prosecutors
Eric M. Meiring
Corporate counsel should be aware of the following 10 common mistakes that practitioners make when representing clients in criminal antitrust matters.
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Business Crimes Bulletin
Confronting the Company: Corporate Guilty Pleas as Evidence in Criminal Trials
William F. Johnson
This article reviews the history of the admission of individual co-conspirator plea allocutions in criminal cases and discuss why the admission of a corporate guilty plea, despite the opportunity to cross-examine a corporate employee who signed the plea agreement, does not provide the type of cross-examination guaranteed by the Confrontation Clause.
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Changes to Yates Memo Announced
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Business Crimes Bulletin
In the Courts
Colleen Snow
Sentencing for Two Bankers in Zürcher Kantonalbank of Switzerland Case
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