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Cleary Gottlieb Discusses SEC Action for Non-Disclosure of DOJ Investigation

By Robin M. Bergen, Matthew Solomon, Adam Fleisher, Rahul Mukhi and Alexander Janghorbani October 15, 2019 by Avesh Krishna

Companies that face non-public government investigations frequently confront challenging questions regarding whether and when to disclose the existence of the investigation, how much to disclose, and any duty to update the disclosure as the investigation proceeds. On the one hand, …

Attorney General Barr Speaks at SEC’s Criminal Coordination Conference

By William P. Barr October 7, 2019 by renholding

I am honored to be here representing the dedicated men and women of the Department of Justice. Like the SEC’s Enforcement staff, many of our prosecutors are tasked with investigating financial fraud and corporate crime. They are assigned to the

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Kirkland & Ellis Discusses the Risks of Subsidiary Pleas in Criminal Resolutions: Och-Ziff

By Asheesh Goel, Zach Brez, Kim Nemirow and Allison Lullo October 2, 2019 by renholding

In 2016, hedge fund Och-Ziff Capital Management Group (“Och-Ziff”) entered into one of the largest Foreign Corrupt Practices Act (“FCPA”) resolutions ever: It agreed to pay a total of $412 million to the Department of Justice and the Securities and …

Cleary Gottlieb Discusses U.S. CLOUD Act’s Possible Impact on EU Data Protection

By Natascha Gerlach and Elisabeth Macher September 16, 2019 by Avesh Krishna

Responding to a request by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), the EU’s data protection supervisory bodies released an initial joint opinion on the impact of the U.S. Clarifying Lawful Overseas Use of Data …

Paul Weiss Discusses D.C. Circuit Decision Ordering Chinese Banks to Produce Documents

By Brad S. Karp, Michael E. Gertzman, H. Christopher Boehning, Roberto J. Gonzalez and Karen R. King August 23, 2019 by renholding

On July 30, 2019, the U.S. Court of Appeals for the District of Columbia affirmed civil contempt orders by the D.C. District Court against three Chinese banks for their failure to produce documents in response to U.S. government subpoenas relating …

Davis Polk Discusses UK Serious Fraud Office’s New Cooperation Guidance

By Greg D. Andres, Angela T. Burgess, Neil H. MacBride, Tatiana R. Martins and Paul J. Nathanson August 15, 2019 by renholding

On August 6, the United Kingdom’s Serious Fraud Office (“SFO”) published new guidance on the steps companies should take in order to receive cooperation credit in the SFO’s charging decisions. The document, titled “Corporate Co-operation Guidance” (the “SFO Guidance”),[1]…

The Supreme Court Misses an Opportunity in Securities Law Enforcement

By Andrew Vollmer July 18, 2019 by renholding

In Lorenzo v. SEC, the U.S. Supreme Court continued the struggle to define the difference between primary liability and aiding and abetting liability in Rule 10b-5 and other securities fraud claims. The difference matters because private plaintiffs do not have …

Price Revelation from Insider Trading: Evidence from Hacked Earnings News

By Pat Akey, Vincent Gregoire and Charles Martineau July 10, 2019 by renholding

Cyber risk is a major concern to corporations and investors. Recent academic studies point out that firms suffer large negative returns when they disclose that they have suffered a data breach (e.g., Akey, Lewellen and Liskovich (2018) and Kamiya et …

Assessing Corporate Character as a Basis for Criminal Sentencing

By Matthew Caulfield and William S. Laufer June 24, 2019 by renholding

What is the purpose or motivation of corporate criminal punishment? What kinds of punishments ought we impose? While such questions may seem lofty, they are important nonetheless. Strict pragmatists who reject the goal of developing penal theory and focus only …

Cleary Gottlieb Discusses DOJ Updates of Guidance on Corporate Compliance Programs

By Jennifer Kennedy Park, Joon H. Kim, Jonathan Kolodner and Lisa Vicens May 9, 2019 by renholding

On April 30, 2019, the Criminal Division of the U.S. Department of Justice (“DOJ” or “the Department”) announced updated guidance for the Criminal Division’s Evaluation of Corporate Compliance Programs (“the Guidance”) in charging and resolving criminal cases.^[1] Assistant Attorney …

How Are Non-Financial and Financial Misconduct Related?

By Aneesh Raghunandan May 8, 2019 by renholding

Companies face strong incentives to meet expectations – whether their own or those of the capital markets. A wide literature shows that this can lead to deceptive behavior by firms, which can amount to anything from overly aggressive accounting to …

Insider Trading and Executive Overreach

By Kevin R. Douglas March 22, 2019 by renholding

The recent controversy over President Donald Trump’s use of his emergency authority to fund a wall on the U.S. southern border has awakened many Americans to the problem of executive overreach. Yet, what few may appreciate is that executive overreach …

Davis Polk Discusses CFTC’s Entry Into Anti-Corruption Enforcement

By Angela T. Burgess, James W. Haldin, Neil H. MacBride, Tatiana R. Martins and Paul J. Nathanson March 22, 2019 by renholding

On March 6, 2019, Commodity Futures Trading Commission (“CFTC”) Director of Enforcement James McDonald announced an initiative to pursue foreign corrupt practices that constitute violations of the Commodities Exchange Act (“CEA”), noting that the Enforcement Division already has open investigations …

U.S. Corporate DPA Program: International Embarrassment?

By Peter Reilly March 5, 2019 by renholding

In a forthcoming paper in Arizona State Law Journal, I argue two main points regarding Deferred Prosecution Agreements (DPAs) negotiated between federal prosecutors and corporations accused of misconduct: First, since the recent appellate court ruling in United States v.…

Was Bezos Blackmailed?

By John C. Coffee, Jr. February 11, 2019 by renholding

In the bizarre world that Washington politics has become, few stories are more fascinating than Jeff Bezos’ accusation that the National Enquirer and its parent, American Media Inc., committed blackmail and extortion by threatening to reveal nude pictures of him …

Cleary Gottlieb Discusses U.S. Criminal Prosecutions Based on Panama Papers Hack

By Victor L. Hou, Lisa Vicens, Rahul Mukhi, Martha E. Vega-Gonzalez and Christine Jordan January 29, 2019 by abirvarma

Nearly a decade ago, WikiLeaks ushered in the age of mass leaks. Since then, corporations, governments, public figures and private entities have increasingly had to reckon with a new reality: that vigilantes, activists, extortionists and even state actors can silently …

Gibson Dunn Offers Year-End Update on Corporate Non-Prosecution and Deferred Prosecution Agreements

By F. Joseph Warin, M. Kendall Day, Courtney Brown, Chelsea Ferguson and Melissa Farrar January 21, 2019 by renholding

In 2018, the number of corporate non-prosecution agreements (“NPAs”) and deferred prosecution agreements (“DPAs”)[1] in the United States remained steady—2018 yielded at least 24 agreements [2]—but the monetary recoveries skyrocketed to nearly $8.1 billion.[2a] While the comparative …

SEC Chair Discusses EDGAR-Hacking Enforcement Action

By Jay Clayton January 16, 2019 by renholding

In August 2017, shortly after my arrival at the Commission, I was informed that an intrusion into the SEC’s Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) system took place in 2016. We immediately initiated a series of review and response

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Toward More Efficient Corporate Knowledge

By Mihailis E. Diamantis December 27, 2018 by renholding

In a recent paper,[1] I argue that the criminal law needs what I call a functional approach to corporate knowledge. When the law treats corporations as though they know things, it affects how they manage information. Knowledge, in one …

Skadden Discusses How Companies Can Prepare for U.S. House Investigations

By Margaret E. Krawiec, David B. Leland and Ivan A. Schlager November 14, 2018 by pss2150

For the past several years, Republican majorities in the House of Representatives and Senate have dictated the agenda of Congress. But Democrats will take control of the House in January 2019, thereby regaining the ability to control committee and subcommittee …

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