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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.
In recent years, the U.S. Supreme Court has demonstrated a renewed willingness to police the boundaries of the law of asset forfeiture in order to make sure that defendants are treated fairly. In Honeycutt v. United States, 137 S. Ct. 1626 (2017), 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. One year prior, in Luis v. United States, 136 S. Ct. 1083 (2016), the Supreme Court held that pretrial restraint of legitimate, untainted assets violated the Sixth Amendment, when the government sought to secure the untainted property as substitute assets for eventual forfeiture or restitution. Last year, Justice Clarence Thomas even expressed an interest in the Court taking up the question of whether due process requires the government to prove its entitlement to civil forfeiture by clear and convincing evidence. Leonard v. Texas, 137 S. Ct. 847 (2017) (Thomas, J., concurring).
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By Jacqueline C. Wolff
Since the DOJ announced a new policy under which companies that voluntarily disclosed violations of the Foreign Corrupt Practices Act has attempted to encourage companies to voluntarily disclose all manner of criminal misconduct beyond violations of just the FCPA, while general counsels worldwide have been wrestling with the question of whether and when it is in the company’s best interest to so disclose.
SEC to Continue to Punish Wrongdoers and Deter Misconduct
By Jonathan H. Hecht and Emily S. Unger
The Division of Enforcement will likely continue to use “every tool in its toolkit” and expect that public companies and other market participants will think rigorously about their business and appropriately tailor compliance practices and internal controls and policies to match.
By Stefan Atkinson and Yi Yuan
Historically, federal courts generally agreed that scheme liability under SEC Rule 10b-5(a) and (c) requires something more than a misstatement or omission — with misstatements and omissions typically being litigated under Rule 10b-5(b) instead. However, the SCOTUS in Lorenzo v. SEC held that an individual who disseminates a misstatement, without other fraudulent conduct, is potentially liable under the scheme liability provisions of Rule 10b-5. Subsequently, a circuit split has emerged over the scope of Lorenzo’s holding.
ESG ‘Greenwashing’ Litigation On the Rise
By Shoshana Schiller, Alice Douglas and Brenda Gotanda
Increased attention paid to companies’ public promotion of their environmental and sustainability programs is likely to continue in 2023, with further developments in regulation and litigation pertaining to “greenwashing” — a marketing practice which involves unsubstantiated or exaggerated claims about the environmentally friendly or socially-responsible attributes of an organization’s products or services.
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