Author Archives: Michelle Louise Austin

Deputy Attorney General Announces Comprehensive Review of DOJ Corporate Enforcement Policies

By Leslie R. Caldwell, Douglas K. Yatter, and E. Wistar Wilson

On October 6, 2017, Deputy Attorney General of the United States Rod J. Rosenstein announced that the Department of Justice (DOJ) is actively reviewing a wide range of existing corporate enforcement policies. In a speech delivered at New York University School of Law’s Program on Corporate Compliance and Enforcement, Rosenstein unveiled a plan to review and reconsider existing DOJ policies, and to consolidate policies in official sources like the US Attorneys’ Manual, which provides formal guidance to all DOJ prosecutors.[1] This represents a departure from DOJ’s approach in recent years, and may result in significant changes to DOJ policy in a number of areas. This article summarizes Rosenstein’s remarks, notes related DOJ developments, and discusses possible implications for corporate enforcement. Continue reading

Securities and Exchange Commission Releases Public Statement on Cybersecurity

By Nicolas H.R. Dumont, Hillary H. Holmes, Lori Zyskowski and Ron Mueller

On Wednesday, September 20, 2017, Chairman Jay Clayton of the U.S. Securities and Exchange Commission (the “Commission”) released a public statement addressing cybersecurity risks.

Chairman Clayton’s statement is part of an ongoing effort to communicate the Commission’s approach to cybersecurity in connection with the May 2017 assessments of the Commission’s internal cybersecurity and of its approach to cybersecurity as a regulatory agency. Continue reading

Corporate Executives and Criminal Justice Reform

By Amy J. Sepinwall

On September 19, Senator Chuck Grassley (R-IA) issued a press release stating that the bipartisan authors of a 2015 landmark criminal justice reform bill were preparing to reintroduce that legislation. The Sentencing Reform and Corrections Act of 2015, to which Sen. Grassley will grant new life, was part of a widespread effort at criminal justice reform that appeared to have died with the 2016 election. A centerpiece of the effort would have clarified and enhanced the mens rea (or mental state) necessary for conviction: in the House version, a defendant could be convicted only if she knew she was engaged in criminal activity; the Senate version was even more defendant-friendly, requiring willful participation.

Criminal justice reform has a laudable overarching ambition—to reduce sentences and incarceration rates, especially for minor drug and firearms offenses. As Yale Law Professor Gideon Yaffe writes, this would benefit “those who are especially ill-treated by the criminal justice system: the poor and racial minorities.” But these efforts are being championed by some unusual suspects: Republican members of Congress, who don’t ordinarily vie for more leniency when it comes to street crime, and the Koch brothers, who also are not usually poster boys for the plight of the underclass, who are over-represented in criminal prosecutions, convictions and America’s prisons. Continue reading

Trump v. Obama: U.S. SEC Anti-Corruption Enforcement Actions Scorecard

by Stephen Choi and Mitu Gulati

Sometimes, a graph says it better than words.

Below, is a graph by month of new Securities and Exchange Commission (SEC) enforcement actions under the Foreign Corrupt Practices Act (FCPA) against public companies and subsidiaries.  Using data from the Securities Enforcement Empirical Database (SEED), a collaboration between NYU and Cornerstone Research, we track SEC FCPA actions from January 2016 through the end of the SEC fiscal year on September 30, 2017.  SEED defines a public company as a company with stock that trades on the NYSE, NYSE MKT LLC, NASDAQ, or NYSE Arca stock exchanges at the start date of the SEC enforcement action.  We divide our months based on whether the action was initiated under the Obama Administration (blue) or the Trump Administration (red). Continue reading

Deputy Attorney General Rod Rosenstein Keynote Address on Corporate Enforcement Policy

by Rod J. Rosenstein

NYU Program on Corporate Compliance & Enforcement Keynote AddressOctober 6, 2017

Thank you, Dean Morrison.  I appreciate your thoughtful introduction.  I am honored to be here with so many distinguished enforcement officials, corporate practitioners, and scholars from around the world.

One of my favorite management parables is about a child who watches her mother prepare a roast beef.  The mother cuts the ends off the roast before she puts it in the oven.  The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral of the story is that the solutions of the past are not necessarily the right solutions today.  Circumstances change.  We should not blindly accept past practices.  We should be conscientious about reconsidering our assumptions. Continue reading

Sentencing Fraud

by Mihailis E. Diamantis

Imagine a class of criminals that is growing year over year, whose members have higher than average recidivism rates, and for whom the public has very little sympathy.[1]  They would seem an unlikely group for judges and scholars to think are punished too severely.  This, though, is the fortunate position of the white-collar fraudster.

To be sure, federal penalties for fraud can be quite burdensome.[2]  The base offense level for most frauds is 6, but this can climb as the loss caused by the fraud increases from $6,501 (add 2 levels) up to $550,000,001 (add 30 levels).  The number of victims can also have a significant impact, ranging from an additional 2 levels if there are at least ten victims to an additional 6 levels if there are more than twenty-five.  A first-time fraudster who causes more than $550,000,001 in losses to at least twenty-five victims is looking at a recommended sentence of thirty years to life.[3]  For most judges and scholars, that kind of punishment sounds disproportionate.[4] Continue reading

Do Compliance Officers Have A Growing Target On Their Backs?

by Patty P. Tehrani, Esq.

Have you noticed the number of articles and blogs covering the troubling trend of personal liability for compliance officers and Chief Compliance Officers (CCOs) in the financial services sector?  While anyone entering this industry knows it is highly regulated and replete with regulatory requirements, the growing liability of its compliance professionals is worrisome. Those responsible for overseeing their firm’s compliance program have many duties, and now more than ever find themselves on the receiving end of enforcement actions. This is evident in expanded corporate probes of compliance professionals or increasing regulatory expectations cited in speeches and proposed regulations.

Compliance professionals are concerned about facing personal liability especially when it is for non-rogue behavior.[1] As a result, I thought this trend warranted a closer review. Continue reading

Perspectives on Enforcement: Self-Reporting and Cooperation at the CFTC

by James McDonald

September 25, 2017 – 6:00 p.m.
NYU School of Law: Program on Corporate Compliance & Enforcement /
Institute for Corporate Governance & Finance
As Prepared for Delivery

Thank you for that introduction.  I’m happy to be here with you all today.  I want to talk today about some of our priorities for the CFTC’s Division of Enforcement, and in particular about our cooperation and self-reporting program.  In just a minute, I’ll talk in some detail about this program.  But to frame that discussion, I want to start by talking more generally about our mission in the CFTC and the Division of Enforcement, and some of our priorities going forward.  As I get started, please keep in mind that these are my own views and not necessarily those of the Commission or its staff.

CFTC Mission and Division of Enforcement

At the CFTC, our mission is to foster open, transparent, competitive and financially sound markets.  A vigorous enforcement program is essential to fulfilling this mission.  As Chairman Giancarlo has made clear, under his leadership, there will be no pause, no let up, and no relaxation in the CFTC’s efforts to enforce the law and punish wrongdoing.[1] Continue reading

Other People’s Money: SEC Disgorgement After Kokesh

by Daniel R. Walfish

Should individuals sued by the Securities and Exchange Commission (SEC) have to give up, or “disgorge,” corporate gains resulting from a fraud, or just their own direct gains? In an August 29 summary order, SEC v. Metter,[1] the Second Circuit avoided wrestling with this question, but it may be one of the next major battles in the wake of the Supreme Court’s June 5, 2017 decision in Kokesh v. SEC, 137 S. Ct. 1635. Kokesh held that the disgorgement remedy in SEC enforcement actions is a “penalty” for purposes of the five-year limitations period for the “enforcement of any civil fine, penalty, or forfeiture.” 28 U.S.C. § 2462. Many have assumed, on the basis of a footnote in Kokesh, that courts will soon be considering whether they have authority to order disgorgement at all in SEC enforcement actions. That issue certainly lurks, but I suspect that courts first will revisit the proper scope of the remedy, including whether a court may force a defendant to “disgorge” ill-gotten gains that the defendant did not personally receive but that went to third parties, such as individuals and entities associated with the defendant. Continue reading

SEC Leadership Discusses Continuing Priorities

by Mary Jo White, Andrew J. Ceresney, Kara Novaco Brockmeyer, Robert B. Kaplan, Julie M. Riewe, Jonathan R. Tuttle and Arian M. June

SEC Chairman Jay Clayton, Co-Directors of Enforcement Stephanie Avakian and Steven Peikin, and Acting Director of the Office of Compliance, Inspections and Examinations (“OCIE”) Peter Driscoll participated in a panel discussion on Tuesday, September 5, at NYU Law School. The moderated discussion, followed by questions from the audience, was titled “The Securities and Exchange Commission: Priorities Going Forward.”

In sum, the SEC officials emphasized that investors should expect no major shift from the SEC in terms of enforcement or examinations. While there has been some discussion in recent months of frauds victimizing retail investors, there will not be a major paradigm shift in the kinds of cases the Commission will focus on. The panelists also spent a significant amount of time discussing cybersecurity and cyber-related enforcement actions, as well as the SEC’s increased use of big data in investigations and examinations. Continue reading