Insights

On February 5, 2025, the newly sworn-in Attorney General Pam Bondi issued a memorandum with the subject Total Elimination of Cartels and Transnational Criminal Organizations. Attorney General Bondi’s memorandum lays out four distinct avenues to achieve President Trump’s stated policy of eliminating TCOs and Cartels.[1]  These include changing DOJ charging priorities, “removing bureaucratic impediments to aggressive prosecutions,” expanding certain task forces related to TCOs and Cartels, and advocating for certain legislative changes. 

The Court of International Trade recently denied a motion to add a defendant’s criminal attorney to a protective order in a parallel civil regulatory case, teeing up key Fifth and Sixth Amendment concerns. 

On Saturday, October 7, 2023, California Governor Gavin Newsom signed into law two landmark bills—SB 253, the Climate Corporate Data Accountability Act; and SB 261, the Climate-Related Financial Risk Act—that will require large public and privately-held entities doing business in California to comply with sweeping disclosure requirements regarding their direct and indirect greenhouse gas emissions and their climate-related financial risks.

A New Jersey federal judge has denied two executives’ efforts to suppress statements made during an interview conducted as part of an internal investigation of alleged bribe payments in India even though their employer was hoping to take advantage of a U.S. Department of Justice FCPA Pilot Program.

On May 5, 2023, the Securities and Exchange Commission (“SEC” or “Commission”) announced a record-setting whistleblower award of nearly $279 million.  This award more than doubles the SEC’s previous $114 million record-setter, issued in October 2020.

On Friday, April 14, the United States Supreme Court issued a unanimous decision in Axon Enterprise, Inc. v. Federal Trade Commission, holding that constitutional challenges to the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) can be heard in federal district court in the first instance, without the plaintiffs first having to exhaust those arguments through the agencies’ respective administrative enforcement processes. The Court did not address the underlying constitutional challenges, but the long-awaited decision on the jurisdictional question is likely to encourage more constitutional challenges to those and other agencies’ enforcement schemes being raised and heard first in the federal courts.

On January 17, 2023, Kenneth A. Polite, Jr, Assistant Attorney General for the Department of Justice (DOJ)’s Criminal Division, delivered a speech at Georgetown Law School announcing the first significant changes to the Criminal Division’s Corporate Enforcement Policy (“CEP”) since 2017. The changes answer the call of Deputy Attorney General Lisa Monaco and provide companies with new and concrete incentives to self-disclose wrongdoing and meaningfully cooperate with DOJ investigations. Most notably, DOJ is offering both a new path to avoid prosecution, and, in cases where a criminal resolution is warranted, the opportunity to obtain as much as 75% off the low end of the U.S. Sentencing Guidelines fine range. The revisions also include incentives for companies that do not voluntarily self-disclose, but still fully cooperate and remediate—even these companies can obtain a 50% reduction in fines.

On September 15, 2022, Deputy Attorney General Lisa Monaco announced major updates to the Department of Justice’s (“DOJ”) criminal enforcement policy at the NYU Program on Corporate Compliance and Enforcement, following a yearlong review of the Department’s white collar enforcement practices. These updates were also documented in a 15-page memo that summarized the review conducted by the DOJ’s Corporate Crime Advisory Group. On September 20, 2022, Principal Deputy Attorney General Marshall Miller delivered a keynote address that further detailed the updates.

On June 22, 2022, Lauren Kootman, Assistant Chief in the Corporate Enforcement, Compliance and Policy Unit (the “Unit”) of the Justice Department’s (“DOJ”) Fraud Section confirmed that a forthcoming DOJ policy will require Chief Compliance Officers (“CCOs”) to certify representations about their companies’ compliance programs in settlement agreements with the DOJ.  Similar to the requirement set forth in the Sarbanes-Oxley Act that CEOs and CFOs must certify their companies’ SEC disclosures, and much like current end-of-monitorship certifications, the policy will require CCOs and CEOs to certify that their companies’ compliance programs have been “reasonably designed” to prevent future violations.  The policy was first proposed by Assistant Attorney General Kenneth A. Polite Jr. in March.  Responding to criticism (and echoing prior DOJ statements), Kootman explained that the policy is meant to ensure CCOs have “adequate visibility and access to information” about their companies’ business activities and compliance programs.  In that sense, she said it is DOJ’s goal that the new policy will “empower” CCOs, rather than target or punish them.   

On April 28, 2022, the U.S. Securities and Exchange Commission (SEC) charged Vale S.A., a Brazilian mining company that trades ADRs [Ticker: VALE] on the New York Stock Exchange, with multiple violations of the Securities Exchange Act of 1934 and rules promulgated thereunder. Arising out of the tragic January 25, 2019, collapse of a massive iron-ore tailings dam (Brumadinho) at the Córrego do Feijão mine in Minas Gerais, Brazil, the complaint alleges that Vale knowingly or recklessly deceived investors and made materially false or misleading statements with regard to the safety and stability of its dams.

Publicly traded companies would have to provide detailed information about potential financial risks related to climate change and greenhouse gas (GHG) emissions (with varying levels of detail and assurance depending upon a company’s status and size), under a proposal the Securities and Exchange Commission (SEC) issued for public comment on March 21, 2022. For example, if finalized in its current form, the proposal would require disclosure of information about how climate change could impact a business’s strategy and outlook, processes for managing climate-related risks, the impact of climate-related events on the company. Notably, the proposal requires disclosure of direct GHG emissions (i.e., “Scope 1”), indirect GHG emissions from the purchase of electricity or other energy sources ( i.e., “Scope 2”), and, in some situations, indirect GHG emissions from both upstream and downstream sources (i.e., “Scope 3”). As summarized in a related fact sheet, the SEC proposal would also require that, if a company has identified a GHG emission-reduction goal, it disclose information about how it intends to reach that goal and report on its progress toward the same—a common target of “greenwashing” claims that have increased of late.

On February 17, 2022, the Securities and Exchange Commission (“SEC”) announced that KT Corporation (“KT” ) settled allegations that it violated the books-and-records and internal accounting controls provisions of the Foreign Corrupt Practices Act (“FCPA”) in the Republic of Korea and Vietnam.  KT is South Korea’s largest comprehensive telecommunications provider, maintains its principal executive offices in South Korea, and its American Depositary Shares trade on the New York Stock Exchange.

In an order filed on November 10, 2021, the District Court for the Southern District of Texas granted a motion to dismiss an indictment finding that it lacked jurisdiction over Foreign Corrupt Practices Act (“FCPA”) and money laundering claims brought against Swiss resident and citizen Daisy T. Rafoi-Bleuler. Moreover, the court concluded that the FCPA and money laundering claims were unconstitutionally vague as applied. See United States v. Rafoi-Bleuler, Case No. 4:17-CR-0514-7, Dkt. No. 255 (Nov. 10, 2021).

On October 28, Deputy Attorney General (“DAG”) Lisa O. Monaco delivered remarks at the ABA’s 36th National Institute on White Collar Crime. Department of Justice (“DOJ” or “Department”) officials have recently referenced the coming enforcement “surge,” and the DAG’s remarks last week provide a roadmap to corporate criminal enforcement under the current administration.

After a predictable lull in corporate enforcement actions during the recent transition between administrations, and following a near quarter-century low in such actions under the previous administration, the Department of Justice (“DOJ”) announced this week that a “surge” of corporate enforcement is coming. Recent comments from DOJ officials indicate that, in addition to a significant increase in enforcement actions, updated policies and enhanced resources tailored to advance the administration’s priorities are near at hand.

On July 3, 2020, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released the second edition of their Resource Guide to the U.S. Foreign Corrupt Practices Act (the “Guide”). This new edition provides several clarifications on the enforcement agencies’ view of the FCPA, adds summaries of recent cases and declinations, incorporates DOJ's recently updated guidance on the Evaluation of Corporate Compliance Programs, and addresses other agency policies issued since the first edition including the FCPA Corporate Enforcement Policy and policies on the selection of monitors and the coordination of corporate resolutions. Although the substance of the Guide remains largely unchanged, it does contain several notable edits that give some further insight into DOJ and SEC’s perspective on key developments in the law and enforcement issues under the FCPA since the first edition was published in 2012. While companies’ attention may be elsewhere during the COVID-19 pandemic, they should nevertheless remain vigilant in maintaining and enforcing their anti-bribery and anti-corruption programs. This updated Guide provides additional insights for doing so.

On Monday, in an 8-1 decision, the U.S. Supreme Court upheld—with some limits—the SEC’s ability to seek disgorgement of ill-gotten profits as an “equitable remedy” for securities law violations. Writing for the Court, Justice Sotomayor said that a disgorgement award is permissible under federal law if it is truly equitable. Disgorgement must therefore be limited to “net profits from wrongdoing after deducting legitimate expenses,” and should be returned to investors. These constraints depend on a fact-intensive and complex analysis, and ultimately will determine how disgorgement is used by the SEC going forward. 

On Monday, June 1, 2020, the Department of Justice’s (DOJ’s) Criminal Division issued an updated version of the “Evaluation of Corporate Compliance Programs” guidance. The guidance was originally published by the Criminal Division’s Fraud Section in February 2017, and last revised in April 2019. The updated guidance emphasizes the need for companies to ensure that their compliance function is sufficiently resourced and empowered to fulfill its mission, and to engage in continuous improvement—evolving as necessary to meet changing circumstances and challenges. The updated guidance also provides practical takeaways on issues related to training, testing, mergers and acquisitions, and the impact of foreign law on a company’s compliance program. Given the unique stressors and challenges that the coronavirus pandemic has created, this updated guidance is a timely reminder for companies to assess whether their compliance program comports with best practices and DOJ’s expectations.

With first calendar quarter earnings set to be released by issuers in the coming weeks, Securities and Exchange Commission (SEC) Chairman Jay Clayton and the SEC’s Director of the Division of Corporation Finance, William Hinman, issued a public statement on April 8, 2020, encouraging issuers to provide meaningful forward-looking disclosures regarding the impact of COVID-19 in their upcoming earnings releases and on calls with analysts and investors. This follows on the heels of the March 25, 2020 release of Disclosure Guidance Topic No. 9 by the Division of Corporation Finance, which provides its current views regarding disclosure and other securities law obligations that issuers should consider with respect to the COVID-19 pandemic and related business and market disruptions. 

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) provides for an expansive, $2 trillion stimulus package. The Act affords direct relief to individuals, funding for the medical sector, and various forms of assistance for small and other businesses impacted by the coronavirus outbreak, among other provisions previously discussed here. Money and other relief doled-out as part of the CARES Act will be subject to several layers of Congressional and agency oversight, and recipients of funds and other relief under the CARES Act will be scrutinized for what they do – or don’t do – with the federal assistance they receive. This heightened scrutiny puts a premium on compliance, and companies and individuals benefiting from the CARES Act are wise to ensure that they have appropriate oversight in place before putting CARES Act funds to use.