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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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Business Crimes Bulletin
Conducting Due Diligence Today
Ryan McConnell and Stephanie Bustamante
There is no one-size-fits-all approach to due diligence, but some methods are significantly cheaper and more aligned to the business than others.
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Business Crimes Bulletin
Robbing a Locked Bank Vault from Home: Legal Issues Raised by Cryptocurrency Frauds
Chris Ott
Cryptocurrency theft remains a major concern for traders and investors given that billions of dollars of cryptocurrency are stolen every year. These cutting-edge problems intersect in interesting ways with companies' existing fraud and anti-money laundering concerns, but it all starts with the cryptocurrency "wallet."
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Business Crimes Bulletin
The Supreme Court’s Criminal Law Decisions in 2018
Harry Sandick and Jacqueline Bonneau
Part Two of a Two-Part Article
The U.S. Supreme Court last year continued to express concern about government overreach, and otherwise handed down decisions favorable to defendants. Although the Court rendered only one major criminal law decision in that term, many other cases it decided hold important lessons for defense counsel.
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Business Crimes Bulletin
Case Note
Janice Inman
‘Clerical Error’ Must Be Altered to Reflect the Plea, Not the Indictment
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
New Department of Justice Guidance for Compliance Monitorships
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Business Crimes Bulletin
In the Courts
Colleen Snow
High Court Rules Against SFO in Barclays Appeal
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Business Crimes Bulletin
Supreme Court Forecloses Reimbursement for Certain Internal Investigations Under Mandatory Victims Restitution Act
Marjorie Peerce and Mary K. Treanor
In Lagos v. United States, the U.S. Supreme Court ruled that corporate victims of criminal offenses cannot recover expenses incurred from internal investigations that the federal government has neither requested nor required under the Mandatory Victims Restitution Act of 1996,
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Business Crimes Bulletin
The Supreme Court’s Criminal Law Decisions in 2018
Harry Sandick and Jacqueline Bonneau
Part One of a Two-Part Article
The United States Supreme Court’s October Term 2017 was a good year for criminal defendants in areas as varied as the Fourth Amendment, obstruction of justice, the death penalty, and criminal restitution. There was only one major criminal law decision this term — Carpenter v. United States — but there were several decisions that defense counsel would do well to study.
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Business Crimes Bulletin
Get It in Writing: Deducting False Claims Act Payments
Ashley M. Drake and Joseph F. Savage, Jr.
In fiscal year 2017, the DOJ collected more than $3.7 billion dollars from False Claims Act (FCA) cases — part of the $86 billion it has collected from FCA cases since 1986. States and municipalities are aggressively pursuing FCA recoveries as well. Whether or not such payments are deductible as business expenses under the Internal Revenue Code is an important consideration when negotiating a settlement with the government.
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Business Crimes Bulletin
Washington’s FARA Frenzy Spurs New Legal Business
Ryan Lovelace
The FARA feeding frenzy had already been building in recent years, but it gained traction in the months since Manafort's indictment last fall.
The U.S. Justice Department’s aggressive enforcement of the Foreign Agents Registration Act (FARA) has drawn blood throughout the consultant class in Washington, with lawyers assessing the casualties and prowling for new business.
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Business Crimes Bulletin
In the Courts
Colleen Snow
Former CFO of Bankrate Sentenced to 10 Years in Prison for $25 Million Fraud Scheme
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Business Crimes Bulletin
Business Crimes Hotline
Collen Snow
Petrobras Pays $853.2 Million to U.S. and Brazil Authorities to Settle FCPA Charges
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Business Crimes Bulletin
Are Allegations of Lack of Medical Necessity in False Claims Act Cases a Basis for Settlement or Trial?
Jacqueline C. Wolff
Lessons Learned from Recent Settlements and Decisions
Health care fraud and False Claims Act cases continue to generate a significant source of funds for the Federal Government.
Although, when announcing its focus, the government listed treatment options are not always clear. What these settlements often have in common is that the underlying complaints allege that the services that were rendered and reimbursed lacked medical necessity.
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Cybersecurity Law & Strategy
Update on UK Sanctions, Anti-Money Laundering and Brexit
André Bywater and Jonathan Armstrong
This article provides a brief education about where things currently stand in the UK as regards to sanctions and anti-money laundering in the shifting sands of the Brexit process.
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Business Crimes Bulletin
Stretching the Limitations Period in White-Collar Criminal Matters
Robert J. Anello and Justin Roller
Part Two of a Two-Part Article
Though they might seem straightforward on their faces, limitations periods are often elongated by legislation or court interpretation. The authors began looking at some of these exceptions to the stated limitations periods last month in Part One of this article. They continue here with further examples.
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Utah Biodiesel Executives in $511 Million Fuel Tax Credit Scheme
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Business Crimes Bulletin
In the Courts
Colleen Snow
Second Circuit Issues Ruling Against DOJ in United States v. Hoskins Appeal
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Business Crimes Bulletin
Coordination or Duplication? DOJ Adopts New Policy to Prevent ‘Piling On’ of Corporate Penalties
Jonathan B. New and Victoria L. Stork
In May 2018, the Department of Justice (DOJ) announced a new policy to address a growing problem in white-collar criminal and civil enforcement. With increased…
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Business Crimes Bulletin
Hidden ‘Time’ Bombs in White-Collar Criminal Matters
Robert J. Anello and Justin Roller
Part One of a Two-Part Article
What was once perceived as a straightforward limitation on the government’s significant enforcement powers has become obscured by statutes and court interpretations that tend to elongate the period for the government to act in ways that often are not transparent to even experienced criminal practitioners.
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Business Crimes Bulletin
Swiss Bank Pays for Helping U.S. Clients Evade Taxes
Sue Reisinger
Here’s a sure way to lose half your cooperation credit in a federal investigation: Let your in-house counsel advise employees not to cooperate with U.S. prosecutors.
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
3M Settles False Claims Act Lawsuit over Defective Military Earplugs
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Business Crimes Bulletin
In the Courts
Colleen Snow
Business Executive Arrested and Charged with Bribing Venezuelan Officials
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Business Crimes Bulletin
Protecting Privilege Before and After a Cyber Breach
Robert W. Anderson and Eric B. Levine
Critical to any counsel working to prevent a cyber attack or respond to a successful cyber intrusion is an understanding of why and how to properly utilize both attorney-client and work-product privilege.
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Business Crimes Bulletin
Losing the Ability to Conduct Business, Period
William Jacobson and Lauren Muldoon
The Potential Impact of Multilateral Development Bank Sanctions
What could be worse than a several-hundred-million dollar Foreign Corrupt Practices Act fine hitting your company? How about not being allowed to even compete for many of your most important contracts for a period of several years.
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Business Crimes Bulletin
Pitching Your Cybersecurity Case to Law Enforcement Agencies
Steven A. Cash and Naju R. Lathia
This article focuses on the unique issues that arise in a specific but increasingly common scenario: when your client is the victim of a cybercrime.
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Business Crimes Bulletin
What the C-Suite Needs to Know About FCPA Prosecutions
C. Ryan Barber
In 2017, the Justice Department charged 20 people with FCPA violations — the second-highest single-year total since the law’s passage in 1977, according to a new study by Arent Fox.
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Caris Healthcare Settles False Claim Act Lawsuit for Hospice Fraud
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Business Crimes Bulletin
In the Courts
Colleen Snow
Unaoil Charged with Corruption by SFO
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Business Crimes Bulletin
Balancing Fourth Amendment Expectations in the Electronic Era
Jonathan S. Feld, Dante Stella and Christina Brunty
As rapid technological changes in the 21st century continue to expand the types and volume of private electronic information, the Fourth Amendment’s privacy protections are evolving. The critical question in Fourth Amendment cases is whether a person has a “reasonable expectation of privacy in the information or event.”
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Business Crimes Bulletin
The DOJ’s Latest Opioid Crime-Fighting Tool: The Civil False Claims Act
Nekia Hackworth Jones
The U.S. Department of Justice Is Now Using The False Claims Act — Traditionally a Civil Enforcement Tool — to Combat the United States’ Sweeping Opioid Epidemic
The use of the FCA is part of a larger DOJ strategy to develop multi-faceted solutions for this public health emergency.
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Business Crimes Bulletin
The Seizure of Attorney-Client Communications: Fighting Back
Ronald H. Levine
The government’s seizure of attorney-client communications, a headline event when it involves the President’s lawyer Michael Cohen, actually is a recurrent problem in white collar criminal investigations due to the convergence of several trends.
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Business Crimes Bulletin
Business Crimes Hotline
Ki Won Ahn
Macau Mogul Sentenced in First U.N. Bribery Case
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Business Crimes Bulletin
In the Courts
Ki Won Ahn
Silver Convicted Again in Second Corruption Trial
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Business Crimes Bulletin
When Is a Bid or Offer a ‘Spoof’?
Jodi Misher Peikin and Brent M. Tunis
U.S. Supreme Court Denial of Cert Leaves Statute Vague
This article analyzes the confusion faced by commodity futures traders in assessing whether their trading strategies constitute illegal spoofing and examines whether the CFTC and Seventh Circuit have provided sufficient guidance on the distinction between spoofing and legitimate trading activity.
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Business Crimes Bulletin
Addressing Disproportionate Forfeitures: Refining the Bajakajian Analysis
Harry Sandick, Daniel Ruzumna and Jacqueline Bonneau
Part Two of a Two-Part Article
In Part One, we discussed the public concern over unfairness in asset forfeiture and analyzed the Supreme Court case — United States v. Bajakajian — that looked to the Excessive Fines Clause to limit the government’s authority to forfeit property. In Part Two, we consider possible reforms that would allow defendants to challenge forfeitures as disproportionate under a fairer and more appropriate analysis.
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Business Crimes Bulletin
False Claims and Private Equity: The Government’s Increasing Focus on Private Equity Firms in False Claims Act Cases
Yvonne W. Chan and Timothy H. Kistner
The health care industry continues to hold great potential for private equity (PE) firms, but it also carries with it significant risks and potential exposure to liability. As the pressure to find opportunities has increased, there appears to be a greater appetite for riskier investments including into portfolio companies that experienced or are experiencing compliance challenges.
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Business Crimes Bulletin
Challenging Disproportionate Forfeitures
Harry Sandick, Daniel Ruzumna and Jacqueline Bonneau
Part One of a Two-Part Article
In Honeycutt v. United States, the Supreme Court rejected the argument that a federal criminal forfeiture statute permits joint and several liability for criminal asset forfeiture judgments, thereby protecting defendants who were only marginally culpable for a larger offense.
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Business Crimes Bulletin
The Growing Risk of Providing Oral Summaries
Marjorie J. Peerce and Brad Gershel
Preserving Privilege in the Wake of SEC v. Herrera and the Government’s Increasing Leverage to Obtain Such Disclosures
A Magistrate Judge of the U.S. District Court for the Southern District of Florida held that an “oral download” of outside counsel’s interview notes to the SEC resulted in a limited waiver of protection under the attorney work-product doctrine over the underlying interview notes and memoranda. The decision is a significant one, and underscores one of the core challenges facing companies seeking to cooperate with the government during the course of its investigations.
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Business Crimes Bulletin
Founders of Cryptocurrency-Focused Tech Company Face Federal Fraud Charges
Colby Hamilton
Two heads of a tech company that raised tens of millions through an initial coin offering for what was sold as the world’s first multi-blockchain debit card now face federal civil and criminal charges for allegedly defrauding investors.
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Business Crimes Bulletin
In the Courts
Dennis Mahoney
Tenth Circuit Lowers Investment Advisor’s Disgorgement from $35 to $5 Million
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Singapore Passes Deferred Prosecution Legislation
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Business Crimes Bulletin
Compliance Officers and Law Enforcement: Friends or Foes?
Jonathan B. New and Patrick T. Campbell
Part Two of a Two-Part Article
As we saw in Part One, regulators have recently shown a tendency to focus on compliance officers who they deem to have failed to ensure that the compliance and anti-money laundering (AML) programs that they oversee adequately prevented corporate wrongdoing, and there are several indications that regulators will continue to target compliance officers in 2018 in actions focused on Bank Secrecy Act/AML compliance.
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Entertainment Law & Finance
Industry Workplace Misconduct Investigations
Carri H. Cohen, Janie F. Schulman and Joshua Hill
The important ongoing industry and national conversation about sexual harassment is serving as a wake-up call to entertainment companies, board members and C-suite executives about the need to be proactive when confronted with allegations of harassment or other workplace misconduct.
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Business Crimes Bulletin
Supreme Court Ties SEC’s Hands in Whistleblower Case
Janice G. Inman
With its decision in Digital Realty v. Somers, the U.S. Supreme Court dealt a blow to companies interested in learning of their own securities violations before the government gets the heads-up. The case’s outcome means whistleblowers who might have reported violations internally will be incentivized to bypass their own companies’ compliance mechanisms in favor of immediate reporting to the SEC.
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Business Crimes Bulletin
Hiring Practices and the FCPA
Philip M. Berkowitz
While laws such as the FCPA do not necessarily prohibit hiring individuals with criminal records or bad credit records or who are former government officials, they do require employers to identify these individuals and assess whether their hire would pose a threat, violate the laws outright or impose an administratively difficult burden due to the need to monitor their activities.
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