Insights

In a recently published Corporate Counsel article, “Conducting Investigations and Discovery in China: What Companies Need to Consider in Preparing for New Policies,” Crowell’s John E. Davis and the Zhong Lun Law Firm’s Gary Gao (Jun Gao) discuss the need for companies with operations and data in China to prepare for increased governmental scrutiny and civil actions, and provide tips for effectively responding to cross-border demands for data in such pressurized circumstances.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

On February 10, 2025, President Trump issued an Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (“Trump’s FCPA Order” or the “Order”), whose stated goal is “to restore American competitiveness and security by ordering revised, reasonable enforcement guidelines” for the FCPA. Fact Sheet: President Donald J. Trump Restores American Competitiveness and Security in FCPA Enforcement (“Fact Sheet”). Trump’s FCPA Order is part of his administration’s policy of “eliminating excessive barriers to American commerce abroad.”

Senator Joni Ernst (R-IA) has issued a mandate to the Biden Administration: stop the spending spree with the remaining dollars in the CHIPs for America Program.  Senator Ernst’s missive is a direct response to Commerce Secretary Gina Raimondo’s push to have every employee in the Department of Commerce work overtime to spend billions of dollars in CHIPs funding before President Biden leaves office—a push that has already resulted in almost as much spending since the November 5thelection as was spent in the preceding two years since the CHIPs Act was passed.  Senator Ernst warned, the success of the CHIPs initiative “requires thoughtful planning and strategic spending, not binge buying shopping sprees by bureaucrats shoveling billions out the door before” Biden’s term expires. 

With the coming of the new presidential administration, state antitrust enforcement is poised to intensify. We expect both Republican and Democratic Attorneys General (AGs) to actively pursue antitrust investigations and litigation. They will fill in where the U.S. Department of Justice and Federal Trade Commission reduce focus but are also sure to work, including on a bipartisan basis, with their federal counterparts. Below, we explore how state AGs are likely to shape the antitrust landscape in the coming four years, and the areas where we anticipate significant enforcement activity.

On October 24, 2023, Gurbir S. Grewal, Director of the U.S. Securities and Exchange Commission’s (“SEC”) Division of Enforcement, provided a preview of the agency’s enforcement outlook against Chief Compliance Officers (“CCO”) in the upcoming year.  His remarks highlight the continued importance of compliance programs (and continued focus on the part of regulators on those programs), but also make clear that SEC enforcement actions targeting behavior on the part of CCOs will continue to be rare.

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. 

While not new, Congressional investigations have certainly been receiving increased press coverage in recent years, raising questions about their scope and potential risk for organizations and individuals. Congressional investigations have some similarities to other law enforcement and regulatory investigations, but are distinct in many respects. This alert will provide guidance about the unique nature of congressional investigations, and how to respond if you are the target of one.

On October 4, 2023, Deputy Attorney General (DAG) Lisa O. Monaco announced the Department of Justice’s (DOJ) new safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions (Safe Harbor Policy).  Following other announcements from DOJ over the past two years aimed at encouraging voluntary self-disclosures, the Safe Harbor Policy was adopted because DOJ does not want to “discourage companies with effective compliance programs from lawfully acquiring companies with ineffective compliance programs.”  Through this new policy, DOJ is aiming to incentivize acquirers to timely disclose misconduct discovered during the M&A process (including pre-closing diligence and post-closing integration).

On September 11, 2023, the U.S. Department of Justice (“DOJ”)’s National Security Division (“NSD”) announced the appointment of its first-ever Chief Counsel and Deputy Chief Counsel for Corporate Enforcement, fulfilling a commitment made by DOJ in March 2023. Both appointees are prosecutors with significant experience prosecuting large-scale, international corporate crimes, commensurate with DOJ’s recent emphasis on holding accountable corporate actors that violate national security laws, including sanctions and export controls.

On Wednesday the SEC adopted amendments to the “Names Rule” that are meant to promote “truth in advertising” according to SEC Chair Gary Gensler. Specifically, the amendments require funds with names that reference a thematic investment focus (such as incorporation of Environmental, Social, and Governance (“ESG”) factors), or that suggest an investment portfolio with certain characteristics (such as “growth” or “value”) to invest at least 80% of the value of their assets in those named focus areas.

If the year 2022 was about Executive Branch agencies pursuing ESG (environmental, social, and governance)-related activities—from the Securities and Exchange Commission’s GHG and ESG disclosure proposals, to the Department of Labor’s final reversal of the Trump-era rule discouraging ESG-focused investing by pension funds, and the Federal Acquisition Regulatory Council’s proposal to require government contractors to disclose GHG emissions—then 2023 has seen the 118thCongress taking center stage. Policymakers are questioning how ESG issues impact businesses, workers, and investors; and what role the government should play in encouraging or discouraging ESG considerations.  

On July 26, 2023, the U.S. Department of Justice (“DOJ”), the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued a Tri-Seal Compliance Note outlining their respective voluntary self-disclosure (“VSD”) procedures for potential violations of U.S. export controls and sanctions.  This announcement highlights the agencies’ focus on compliance with export controls, sanctions, and other U.S. national security laws, and reminds industry of the incentives for voluntarily disclosing potential violations, including mitigation of civil and criminal penalties. 

On July 21, 2023, the Biden administration announced that seven companies leading the development of artificial intelligence (AI) -- Amazon, Anthropic, Google, Inflection, Meta, Microsoft, and OpenAI -- have made voluntary commitments, which the companies agreed to undertake immediately, to help move towards safe, secure, and transparent development of AI technology. The goal of the voluntary commitments, or the “AI Agreement” as it is informally dubbed, is to establish a set of standards that promote the principles of safety, security, and trust deemed fundamental to the future of AI.

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.

Last week, the U.S. Department of Defense (“DoD”) issued a memorandum explaining new requirements in its efforts to “Counter[] Unwanted Foreign Influence in Department-Funded Research at Institutions of Higher Education” (the “Memorandum”). The Memorandum discusses DoD’s new processes to review proposals from higher education institutions for fundamental research opportunities, with a focus on security threats posed by China, Russia, and other malign actors.

On May 11, 2023, the Supreme Court issued two opinions limiting the reach of the federal fraud statutes and eliminating often-used theories from the government’s arsenal.

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, the Department of Justice released an updated version of its Evaluation of Corporate Compliance Programs (“ECCP”) guidance—the latest in a series of updates to the administration’s approach to corporate criminal resolutions, and the first substantive update to the ECCP guidance since June 2020. The update marks the latest pronouncement in the Department’s ongoing focus on corporate compliance programs, highlights a continued emphasis on individual accountability, and in particular, fleshes out its expectations in two key areas—compliance related compensation and consequences, and management of messaging apps—providing corporate leaders and compliance teams with additional detail to guide programmatic and policy decisions.