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Business Crimes Bulletin
DOJ Calls On Companies to Incorporate Data Analytics In Anti-Corruption Compliance Programs
Fotis Konstantinidis, Michael Pace and Jason Wright
This article explains the DOJ’s recent emphasis on robust data analytics in anti-corruption compliance programs, outlines how data analytics can and should be used in these programs, and suggests an approach to help legal counsel and companies determine if corporate programs will pass muster with the DOJ.
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Business Crimes Bulletin
White-Collar Practitioners Weigh In On Defending Trump Indictments
Brad Kutner
They say every defendant deserves an attorney, and that surely includes a former president, but how does a lawyer defend someone facing multiple indictments in multiple districts all while they’re running a campaign to return to the White House? Several white-collar defense attorneys who spoke with Business Crimes Bulletin’s ALM sibling The National Law Journal have some ideas.
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Business Crimes Bulletin
SCOTUS: Courts Should Avoid Assigning ‘Breathtaking’ Scope to White-Collar Crime Statutes
Robert J. Anello and Richard F. Albert
The Supreme Court’s Dubin decision is another worthy entrant in the long running series of SCOTUS decisions applying judicial restraints where prosecutors seem unable to restrain themselves.
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Business Crimes Bulletin
FTC and DOJ Proposed Merger Guidelines Eye Effect On Competition
Maydeen Merino
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have proposed merger guidelines that reflect the Biden administration’s aggressive enforcement approach to corporate acquisitions that considers not only their effect on competition but on the labor market, antitrust attorneys said.
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Business Crimes Bulletin
Crypto Winter Leads to Explosion of Regulatory Activity
Mark Bini, Kaela Dahan and Victoria Jaus
In the past year, following the Crypto Winter, there has been an explosion of activity by United States regulators and enforcers. Crypto companies, for their part, have complained that it is not clear what digital assets, if any, are securities, and that they have not been given clear regulatory rules of the road.
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Business Crimes Bulletin
Recent DOJ Losses In Antitrust Cases Don’t Tell the Whole Story
Jennifer Fischell and Thomas Schubert
Many of the Biden Administration’s antitrust enforcement actions have involved attempts to regulate anticompetitive conduct in labor markets by means…
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Business Crimes Bulletin
Biden Administration ESG Initiative Draws Scorn from Republican Lawmakers
Maydeen Merino
The Biden administration’s efforts to establish environmental, social, and corporate governance requirements on corporations has drawn scorn from Republican lawmakers even as companies learn to navigate the ESG initiative with an unclear regulatory framework.
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Business Crimes Bulletin
Regulators Put Pressure On Fintech Platforms to Improve Customer Disclosures
Chris O'Malley
Regulators cranking up scrutiny of digital-payment platforms after fund-access and customer service problems in recent years are now broadening their gaze into what happens if they collapse. That’s placing additional pressure on these fintech platforms to improve customer disclosures and possibly even find new ways to backstop against potential insolvency.
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Business Crimes Bulletin
The Message Is Clear: Assess Your Information Governance Practices In Light of DOJ and SEC Crackdown on Use of Personal Devices and Messaging Apps
Jonathan B. New, Patrick T. Campbell, James A. Sherer and Luke E. Record
Regulators increasingly are scrutinizing employee use of personal devices and third-party messaging apps. This article summarizes the DOJ’s recent guidance and the SEC’s enforcement trends and priorities in this area, and it provides information governance best practices companies can implement now to ensure they are meeting regulators’ expectations and recordkeeping rules.
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Business Crimes Bulletin
Antitrust Actions In Entertainment Industry Sectors
Stan Soocher
The growth in size of companies dominating sectors of the entertainment industry has been subject to antitrust challenges with mixed results. What are some notable recent developments in this area?
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Business Crimes Bulletin
Despite Rhetoric On Individual Accountability, Recent FCPA Enforcement Has Targeted Entities
Robert J. Anello and Richard F. Albert
With ample bravado, in recent years the FCPA unit of the DOJ and the SEC have proclaimed that holding individuals accountable for foreign bribery schemes is of “critical importance,” with the FCPA saying “it is unambiguously this department’s first priority” to prosecute individuals in corporate criminal matters. Reviewing the enforcement record, however, one sees that the volume of FCPA enforcement activity with respect to individuals has steadily declined in the last three years.
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Business Crimes Bulletin
SEC Selective Enforcement Throws Doubt On Whether Securities Rules Apply to Crypto
Cassandre Coyer
Digital assets have created a jurisdictional tug of war between the SEC and the CFTC over whether cryptocurrencies should be regulated as commodities or securities. Also tugging on that rope sit those who say cryptocurrencies are neither, and need new bespoke rules.
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Business Crimes Bulletin
Supreme Court’s Slack Ruling Could Curb ‘Direct Listings’ IPO Alternative
Jimmy Hoover
Messaging company Slack Technologies scored a unanimous victory in the U.S. Supreme Court last month, which held that an investor suing over a company stock offering must show he held “registered” securities in the company.
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Business Crimes Bulletin
Ticket Resellers’ Campaign Raises Securities Law and Money Laundering Issues
Chris Castle
Some markets allow for the sale of a future contract for tickets that have not gone on sale as yet (i.e., “speculative ticketing”). The future contract, like an option or a commodities future, allows someone to purchase the right to buy a ticket once the tickets are offered for sale. This seems to implicate securities law issues, broker-dealer regulations and potentially the general solicitation rule.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Rio Tinto’
Anthony Michael Sabino
Part Three of a Three-Part Article
The first two installments exposited Janus Capital Group, Inc. v. First Derivative Traders and Lorenzo v. S.E.C., both essential to understanding S.E.C. v. Rio Tinto, the Second Circuit’s most recent holding regarding Rule 10b-5 “scheme” liability. Now we examine how the “Mother Court” of federal securities law has tended to that branch of the mighty judicial oak rooted in that venerable regulation.
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Entertainment Law & Finance
Ticket Resellers’ State House Campaign Raises Resale Royalty, Securities Law and Money Laundering Issues
Chris Castle
Should resale royalties be paid to artists and venues when tickets are resold? Such a resale royalty might encourage artists or sports teams to permit transferability for some or all their tickets. It would also help to value that property right. So how would that work?
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Business Crimes Bulletin
Acquitted-Conduct Sentencing: A Quagmire Neither the Supreme Court Nor the U.S. Sentencing Commission Can Continue to Avoid
Harry Sandick and Nicole Scully
It has been common knowledge to criminal practitioners for years that a criminal defendant’s sentence for a crime which they have been convicted can be increased based on consideration of conduct that the jury acquitted. This outcome can make a partial acquittal in federal court into a pyrrhic victory.
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Business Crimes Bulletin
Limitations on Omissions Liability for Opinions Following 'Omnicare'
Gregory Silbert and Joshua Wesneski
“Everyone is entitled to his own opinion, but not his own facts.” The Supreme Court has applied this maxim to the securities laws, holding in Omnicare v. Laborers District Council , that while statements of opinion generally are not actionable, there are some narrow circumstances in which such statements entail or imply false or misleading assertions of fact.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Second Circuit and ‘Lorenzo’
Anthony Michael Sabino
Part Two of a Three-Part Article
This three-part series discusses the Second Circuit’s recent Securities law landmark case, S.E.C. v. Rio Tinto. However, in order to discuss Rio Tinto, it is important to first understand the Supreme Court landmark cases upon which Rio Tinto is based: Janus Capital Group, Inc. v. First Derivative Trader, discussed in the first installment, and S.E.C v. Lorenzo, discussed here.
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Business Crimes Bulletin
Victims’ Rights In Corporate Deferred Prosecutions
Elkan Abramowitz and Jonathan S. Sack
Deferred Prosecution Agreements (DPAs) have become a significant part of white-collar criminal practice. But DPAs are not without controversy. These agreements have been attacked as too lenient, not forcing companies to be held accountable for illegal conduct. They are also seen as a way for prosecutors to appear tough on white-collar crime while not bringing charges against individuals.
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Business Crimes Bulletin
What to Expect from the Next Era In White-Collar Enforcement
Walt Brown, Melinda Haag, Joshua Hill and JiLon Li
In February 2023, in a significant update to its corporate criminal enforcement policies and procedures, the DOJ announced a voluntary self-disclosure policy applicable in all U.S. Attorney’s Offices nationwide. This article discusses the DOJ’s recent pronouncements and recent cases with an eye toward identifying trends that companies should keep in mind when preparing for the next enforcement era.
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Business Crimes Bulletin
Rule 10b-5 Liability: The Supreme Court and ‘Janus’
Anthony Michael Sabino
Part One of a Three-Part Article
This three-part series discusses the Second Circuit’s recent Securities law landmark case, S.E.C. v. Rio Tinto. However, in order to discuss Rio Tinto, it is important to first understand the Supreme Court landmark cases upon which Rio Tinto is based: Janus Capital Group, Inc. v. First Derivative Trader and S.E.C v. Lorenzo. Janus is discussed here in the first installment.
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Business Crimes Bulletin
Securities Litigation In 2023 Showing Continued Muscle Flexing from the SEC
Jay A. Dubow, Joanna J. Cline and Kaitlin L. O’Donnell
Newer trends — such as environmental, social, and governance (ESG), cybersecurity-related disclosure violations, and cryptocurrency regulation — are likely to provide further fuel for securities litigation and enforcement.
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Business Crimes Bulletin
The Criminal Division’s Enforcement Policy: What’s New for Companies Deciding Whether to Voluntarily Disclose?
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.
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Business Crimes Bulletin
SEC to Continue to Punish Wrongdoers and Deter Misconduct
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.
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Business Crimes Bulletin
Circuit Split Reflects Disagreement About the Relationship Between Scheme Liability and SEC Rule 10b-5(b)
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.
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Business Crimes Bulletin
ESG ‘Greenwashing’ Litigation On the Rise
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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Business Crimes Bulletin
Second Circuit Narrows Reach of Wire Fraud and Insider Trading Prohibitions
Harry Sandick, Anna Blum and Abigail Marion
The Second Circuit's long-anticipated decision in United States v. Blaszczak limits the government’s ability to bring fraud or insider trading prosecutions where the information used to achieve an advantage is regulatory information held by the government. It also brings the Second Circuit in greater alignment with the Supreme Court’s wire fraud jurisprudence.
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Business Crimes Bulletin
Regulators Reaching Deep In Their Toolbox to Prosecute Users of Encrypted Messages
Andrey Spektor and Laura S. Perlov
If you use Whatsapp or similar platforms for work-related communications, then you’ve probably heard that regulators are putting an end to that practice. Ephemeral and encrypted messaging, they have noted, evades monitoring and prevents retention. A seldom used doctrine allows prosecutors to charge executives with misdemeanor offenses just for being in the position of power when others commit the misconduct. Rather than take a wait-and-see approach, companies and their leaders would do well to prepare for prosecutors to reach deep into their toolbox.
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Business Crimes Bulletin
Circuit Split Over Joint and Several Liability for Forfeiture In White-Collar Crimes
Evan T. Barr
Ever since the Honeycutt ruling by the U.S. Supreme Court in 2017 that co-conspirators convicted of federal narcotics violations could not be held jointly and severally liable, courts have grappled with whether it also applied outside the narcotics context, to forfeiture judgments imposed in white-collar cases.
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Business Crimes Bulletin
SEC Tightens Rules on Scheduling Trades In Advance
Maria Dinzeo
General counsel may find themselves pulled into difficult conversations with top executives as the Securities and Exchange Commission tightens its rules on company insiders looking to dump their stock.
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Business Crimes Bulletin
Trouble Prosecuting Trump Allies Signifies DOJ’s Difficulties In Prosecuting Non-Traditional Foreign Influence Cases
Robert J. Anello and Richard F. Albert
Despite the broad language of the Espionage Act, the DOJ has faced significant hurdles in pursuing prosecutions outside the traditional espionage context, and particularly where the alleged foreign agent’s activity involves ostensibly legitimate international business dealings.
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Business Crimes Bulletin
Cryptocurrency: Rich In Investment Opportunity; Ripe for Fraud Schemes
Melissa Davis and Mark Parisi
The recent implosion of FTX Trading leaves investors and their advisers wondering whether any crypto investment is safe. There have been dozens of cryptocurrency-related fraud schemes in recent years including Ponzi schemes and investment schemes using crypto and the blockchain to facilitate the fraud scheme.
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Business Crimes Bulletin
What the SEC May Be Signaling Through Its Approach to NFTs and F-NFTs
Mark Cianci, Charles Humphreville, Kelley Chandler and Ty Owen
Recent actions by the U.S. Securities and Exchange Commission (SEC), together with certain statements by SEC commissioners, may indicate a shift in approach toward a rebuttable presumption that digital assets are securities, without deference to formal legal tests.
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Business Crimes Bulletin
Impact of ‘Hoskins’ Cases on the FCPA and White-Collar Law
Elkan Abramowitz and Jonathan Sack
This article examines the impact of Hoskins on three issues of importance to white-collar practitioners: the scope of the FCPA; the interpretation of white-collar criminal statutes; and the authority of the district court to consider at the outset of a prosecution threshold questions of the reach of the law to foreign individuals.
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Business Crimes Bulletin
Using Anti-Bribery and Corruption Regimes for ESG Concerns
Stephanie Yonekura, Ann Kim and Derek Centola
Compliance leaders recognize that Environmental, Social and Governance (ESG) is a growing concern for U.S. companies, but face challenges in determining how to embed compliance structures into their programs. One solution is to look to already existing anti-bribery and corruption (AB&C) compliance measures.
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Business Crimes Bulletin
Insider Trading Evolving Beyond Just Securities As DOJ Targets NFTS and Crypto
Robert J. Anello and Richard F. Albert
In two recent notable cases involving NFTs and cryptocurrency markets, the DOJ has brought insider trading charges under the wire fraud statute without claiming that any securities were involved. These cases demonstrate the substantial flexibility federal prosecutors have — or at least believe they have — in charging insider trading and underscore the oft-recognized need for a federal statute expressly addressing insider trading.
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Business Crimes Bulletin
Regulators Renew Focus on Individual Liability for Gatekeepers
Robert Stern and Sarah Coyne
A rising tide of regulation is headed for corporate compliance officers and in-house lawyers. Corporate accountability is a key priority for the DOJ and SEC, and both agencies have renewed their focus on individual liability for gatekeepers, including lawyers, accountants, underwriters and auditors.
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Business Crimes Bulletin
Recent Decisions Fill Gap In §951 Notification Requirement for Agents of Foreign Governments
David Aaron
The Northern District of Illinois recently issued an opinion which criminalizes acting in the United States as an agent of a foreign government without notifying the attorney general.
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Business Crimes Bulletin
Carrots and Sticks: DAG Lisa Monaco Puts Her Stamp on DOJ’S Corporate Criminal Enforcement Policies
Harry Sandick and Hilarie Meyers
Going back many decades, each Deputy Attorney General (DAG) has promulgated revisions to the DOJ’s corporate criminal enforcement policies, leaving behind eponymous policy memos that were carefully studied by defense attorneys. Like her predecessors, Deputy Attorney General Lisa Monaco has been quick to announce a series of revisions to DOJ’s corporate criminal enforcement policies and practices.
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Business Crimes Bulletin
The Great Pandemic Heist: PPP Loan Fraud
Edward T. Kang
In the COVID-19 era, there has been a heist of great value, but it has not gone undetected. Prosecutors have called the heist the largest fraud in U.S. history, with the thieves stealing hundreds of billions of dollars in taxpayer money through fraudulently obtained Paycheck Protection Program (PPP) loans.
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Business Crimes Bulletin
White Collar Crime and Professional Liability Policies
Andrew N. Bourne
Professional liability insurance policies may provide coverage for criminal proceedings, including defense costs incurred defending against criminal indictments. Corporate policyholders, and individuals covered under professional liability policies, should know exactly what type of claims are insured.
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Business Crimes Bulletin
New Fraud Section Chief Talks Corporate Compliance
Andrew Goudsward
After nearly nine years in the private sector, Glenn Leon returned to the U.S. Department of Justice to take over a section that has grown both in staff and in stature as it pursues some of the government’s biggest white-collar cases.
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Business Crimes Bulletin
Pitfalls of the Attorney-Client Privilege
Jonathan S. Feld and Lisa M. Burnett
The attorney-client privilege is a critical component in the legal process but its protection is constantly being challenged in complicated corporate investigations. There are measures that attorneys should, where possible, take steps to mitigate the risk of losing the privilege.
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Business Crimes Bulletin
The Selective Prosecution Defense
Evan T. Barr
This article explores the law on selective prosecution and why, despite the long odds against success, it may still make sense from a defense perspective to assert the claim.
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Business Crimes Bulletin
FTC Looks to Focus On Data Privacy and Competition
Isha Marathe
The Federal Trade Commission, under its current chairperson Lina Khan, has released a flurry of press releases and blogs in recent months signaling at a focused commercial surveillance “crackdown.”
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Business Crimes Bulletin
Former SEC Lawyers Dominate Payouts Under Agency’s Whistleblower Program, Study Finds
Andrew Goudsward
The U.S. Securities and Exchange Commission’s widely hailed whistleblower program has paid millions in recent years to former SEC lawyers who have come to dominate the market for representing tipsters seeking payouts through the program, a new study found.
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Business Crimes Bulletin
Upcoming Webinar
Join Board of Editors member Jacqueline Wolff and David Smith of Manatt, Phelps & Phillips on Oct. 13 as they delve into the new SEC disclosure rules on climate change risks.
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Business Crimes Bulletin
The Regulators Are at the Gates: Significant New AML Legislation Nears Passage
Patrick T. Campbell, Jonathan B. New and Francesca A. Rogo
Over the past few years, Congress and law enforcement have notably increased their scrutiny of companies’ anti-money laundering compliance, and it appears that Congress is not yet finished with its drive for additional legislation and regulation.
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Business Crimes Bulletin
SCOTUS to Hear Cases on Limits of Mail and Wire Fraud Statutes
Robert J. Anello and Richard F. Albert
Federal courts long have struggled to define the limits of the mail and wire fraud statutes, laws famously characterized as the prosecutor’s true love for their vast breadth and catch-all adaptability. After sidestepping opportunities in the past, the U.S. Supreme Court is now wading into two different and controversial manifestations of that flexibility.
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