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Going back many decades, each Deputy Attorney General (DAG) has promulgated revisions to the Department of Justice’s corporate criminal enforcement policies, leaving behind eponymous policy memos that were carefully studied by defense attorneys (e.g., the “Holder Memo” and the “Thompson Memo”). Finding an approach that deters corporate wrongdoing and incentivizes corporations to participate in investigations but avoids punishing entire corporations (including their shareholders and employees) for the conduct of a few bad actors has proven to be a perennial challenge. On the one hand, overly lenient policies may fail to incentivize companies to cooperate with investigations and identify wrongdoers. On the other hand, policies that are overly focused on collecting headline-making settlement amounts from corporations may do little to deter wrongdoing by employees, while indictment can amount to a death sentence for a corporation that may ultimately be innocent of the charged crime. This was the case with Arthur Andersen in the early 2000s, an auditing firm unwisely charged by the Enron Task Force with obstruction of justice, a crime that it did not commit. By the time the Supreme Court unanimously reversed the conviction, the scandal had effectively put the firm out of business. See, Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (reversing trial conviction).
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The Criminal Division’s Enforcement Policy: What’s New for Companies Deciding Whether to Voluntarily Disclose?
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.
Circuit Split Reflects Disagreement About the Relationship Between Scheme Liability and SEC Rule 10b-5(b)
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.