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On June 1, 2020, the Department of Justice (DOJ) released an updated version of its “Evaluation of Corporate Compliance Programs” guidelines for prosecutors to apply in assessing compliance program effectiveness in the context of resolving criminal investigations of companies (the DOJ Guidance). The latest revisions to the DOJ Guidance — originally published by the DOJ’s Criminal Division in February 2017 and updated in April 2019 — are not voluminous. Nonetheless, the changes reflect a continued and concerted emphasis by DOJ on the robustness of a company’s processes for reevaluation and, as necessary, evolution of the organization’s compliance program to ensure it is not only in place, but working effectively. Parallels to the prominence of measuring and testing compliance programs found in the DOJ Guidance for criminal prosecutions can be found in the practice and policies of the Office of Counsel to the Inspector General for the U.S. Department of Health & Human Services (HHS-OIG), which investigates civil, criminal, and administrative violations of the healthcare laws, often in conjunction with the DOJ.
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Climate Change Risk and Disclosure: A New Focus for SEC Enforcement
By Jacqueline C. Wolff
Given the massive amount of dollars being poured into ESG funds and the SEC’s renewed focus on both the funds and the companies in the funds, there is no time like the present for companies to engage in an assessment of their climate risks and how these risks and the status of the companies’ ESG goals are being relayed to investors.
Government Looking Into Insider Trading By Tipping Block Trades
By Michael Miller and Daniel Podair
How the government might frame insider trading cases based on allegations of tipping before the execution of block trades in securities.
Individual Liability and Criminalizing Cybersecurity Response
By Jonathan S. Sack and Christopher M. Hurley
To date, cybersecurity has generally been viewed as an organizational responsibility, and data breaches similarly have been treated as organizational weaknesses or failures. Against this backdrop of organizational responsibility, the Department of Justice has brought a noteworthy criminal case against an individual for his personal response to a corporate data breach.
Repairing the Foreign Agents Registration Act
By Harry Sandick and George Carotenuto
In recent years, mostly due to the well-publicized prosecution of Trump campaign manager Paul Manafort, FARA has become more of a focus for federal prosecutors. As a result, white-collar attorneys have been consulted more often about whether particular conduct requires registration under the Act.
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