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Business Crimes Bulletin
“Spoofing” as Fraud: A Novel and Untested Theory of Prosecution
Jodi Misher Peikin and Justin Roller
The DOJ has signaled its intent to pursue prosecutions for spoofing — which the law defines as “bidding or offering with the intent to cancel the bid or offer before execution” — aggressively. This article begins with a brief discussion of the elements that the government must prove to establish commodities fraud and wire fraud. It then examines recent spoofing prosecutions that raise important questions about the applicability of the traditional fraud statutes to spoofing-related activity. How the federal courts answer these open questions will have significant implications for participants in the commodities markets.
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Business Crimes Bulletin
FCA Cases: Convincing DOJ to Move to Dismiss
Jacqueline C. Wolff
Recent actions by the DOJ suggest that although the DOJ may continue to prosecute certain relators’ FCA cases, other relators may find themselves on the other side of a government motion to dismiss.
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Business Crimes Bulletin
In the Courts
Kate Monks
The Ninth Circuit affirmed the majority of an $11 million jury verdict brought by a whistleblower who claimed that his company fired him for raising concerns about possible FCPA violations.
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Business Crimes Bulletin
Business Crimes Hotline
Kate Monks
The former CEO of a pharmaceutical company was found guilty by a jury on eight counts of wire fraud affecting a financial institution for orchestrating a scheme that led to the collapse of one of Puerto Rico’s biggest banks.
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Business Crimes Bulletin
FCA and Statute of Limitations: A Puzzle for the Supreme Court
Jonathan S. Feld, Eric Klein and Andrew VanEgmond
The FCA is not a model of clarity. In a certiorari petition in United States ex rel. Hunt v. Cochise Consultancy, the U.S. Supreme Court will address an area of uncertainty that has led to a three-way circuit split regarding the FCA’s statute of limitations. Depending on the outcome, FCA defendants could end up facing even more claims up to a decade old or, alternatively, have a new limitation on FCA actions upon which to rely.
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Business Crimes Bulletin
Eighth Circuit Rejects Ponzi Scheme Presumption to Protect Legitimate Loan Repayments
Michael L. Cook
In Stoebner v. Opportunity Finance, LLC, the U.S. Court of Appeals for the Eighth Circuit held that “… Ponzi scheme payments to satisfy legitimate antecedent debts to defendant banks could not be avoided” by a bankruptcy trustee “absent transaction-specific proof of actual intent to defraud or the statutory elements of constructive fraud — transfer by an insolvent debtor who did not receive reasonably equivalent value in exchange.”
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Business Crimes Bulletin
Mystery Subpoena Case at High Court Could Expand U.S. Authority
Peter B. “Bo” Rutledge and Amanda W. Newton
Rare Supreme Court holiday activity and ongoing news coverage about special counsel Robert Mueller’s investigation has drawn much attention to the enigmatic case of In Re Grand Jury Subpoena. The matter is unremarkable, presenting familiar issues of international litigation. Upon further examination, however, the case may have the potential to expand the authority of United States courts over foreign states and their agencies or instrumentalities.
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Business Crimes Bulletin
In the Courts
Colleen Snow
New Charges in Insurance Corporation of Barbados Limited Bribery Case
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Securities Commission Malaysia Issues Maximum Fine for Deloitte Related to 1MDB Audits
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Business Crimes Bulletin
Business Crimes Hotline
Colleen Snow
Securities Commission Malaysia Issues Maximum Fine for Deloitte Related to 1MDB Audits
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Business Crimes Bulletin
Beyond the FCPA: M&A Due Diligence Under the Expanded DOJ Corporate Enforcement Policy
Jonathan B. New and Elias D. Trahanas
Over the past few years, the U.S. Department of Justice (DOJ) has taken notable steps to advance the axiom that the business community and law enforcement are “partners, not adversaries.” DOJ has now taken its guidance one step further, announcing that the FCPA Corporate Enforcement Policy would apply to all potential wrongdoing discovered by an acquirer in the course of a merger or acquisition, not just to FCPA violations.
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Business Crimes Bulletin
Sticking a Hand in the Internet Cookie Jar
Jeffrey Higel, Michael Bahar and Mike Nelson
As convenient, useful and cool mobile technology and interconnected devices are, they come with risks that remain largely unseen or, worse, ignored. Some…
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Business Crimes Bulletin
U.S. Trade-Secret Theft Prosecutions Target China and Are on the Rise
Phillip Bantz
The U.S. and China are in the midst of an escalating trade war and the DOJ has been prosecuting trade misappropriation cases against China with notable vigor as of late.
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Business Crimes Bulletin
In the Courts
Dennis Mahoney
Fifth Circuit Reverses Ponzi Funds Ruling
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Business Crimes Bulletin
Business Crimes Hotline
Dennis Mahoney
Head of International NGO Convicted of Bribery, Money Laundering Crimes
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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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