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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 …

Blue Sky Banter Podcast: John Coffee on the State of Insider Trading Law

By Reynolds Holding November 8, 2018 by renholding

Professor John C. Coffee, Jr. of Columbia Law School speaks with John Metaxas (Columbia Law ’84) about insider trading law and his role on a new task force created to develop proposals for reform in this area. The task force …

Financial Misconduct and Strategic Corporate Disclosures

By Rebecca Files, Alex Holcomb, Gerald S. Martin and Paul Mason October 9, 2018 by renholding

Financial misconduct can lead to significant financial and reputational penalties for a firm and its managers, including hefty fines from regulators and steep drops in stock price. In fact, recent research finds that firms accused of fraud lose an average …

The Local Spillover Effect of Corporate Accounting Cases

By Eric Holzman, Brian P. Miller and Brian Williams October 5, 2018 by renholding

The consequences for companies and individuals directly involved in corporate accounting misconduct are severe. Research has documented that after such misconduct is revealed, the market value of corporations declines, executives are terminated, and auditors are often dismissed. While the implications …

The Market for Lead Plaintiffs

By John C. Coffee, Jr. September 24, 2018 by renholding

A drama is playing out in Boston federal court before a respected judge that could prove to be a legal “Watergate,” one that could reshape class action practice.[1] Combining elements that are both sordid and comic, this litigation has …

Latham & Watkins on Second Circuit Decision Reinforcing FCPA’s Jurisdictional Limits

By Brian E. Kowalski, Eric S. Volkman, Jonathan C. Su and Natalie Hardwick Rao September 6, 2018 by renholding

On August 24, 2018, the United States Court of Appeals for the Second Circuit issued its long-awaited decision in United States v. Hoskins, rebuffing an attempt by the US Department of Justice (the Department, or DOJ) to expand the …

What Happened to “Meaningfully Close Personal Relationship” in Insider Trading?

By Peter Henning August 22, 2018 by renholding

Did insider trading law almost devolve into an effort to define what kind of relationship a tipper and tippee must have for a defendant to be liable? And was any federal judge or jury qualified to say? Since the Second …

Regulation by Prosecutor

By Gregory M. Gilchrist August 15, 2018 by renholding

There is a quaint perspective from which the prosecutor’s role is limited to investigating crime and advocating for punishment. Of course, prosecutors serve both these functions, but the description is far too narrow to capture the work of the modern …

Sullivan & Cromwell Discusses How FCPA Enforcement Will Affect M&A

By Nicolas Bourtin, Theodore Edelman, Sergio Galvis, Aisling O’Shea and Nathaniel Green August 6, 2018 by renholding

During a speech delivered on July 25, 2018 at the American Conference Institute 9^th Global Forum on Anti-Corruption Compliance in High Risk Markets, Deputy Assistant Attorney General Matthew Miner, who oversees the U.S. Department of Justice’s (“DOJ”) Fraud Section …

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