On November 29, 2018, in a speech at the Georgetown University Law School, Deputy Attorney General Rod Rosenstein renewed his call for tech companies to build into their products the means for law enforcement to legally access decrypted data, the development of so-called “responsible encryption.” Mr. Rosenstein analogized such encryption to requirements that buildings disable elevators in the event of a fire but still retain firemen’s access, and he beseeched the private sector to work with the government to mitigate the security threats posed by rapid technological advances.
Summary of Mr. Rosenstein’s Address
Detailing the threat of ransomware, Mr. Rosenstein warned that the “malicious use of technology will be more pernicious and pervasive tomorrow than it is today, and even more difficult to combat.” To “forestall those ominous consequences,” he proposed three steps: Continue reading →
A new Department of Justice policy (the “Policy”) modifies critical elements of the prominent 2015 “Yates Memorandum” on individual accountability. Introduced on November 29 by Deputy Attorney General Rod J. Rosenstein (the “DAG”), the Policy is manifested, in part, by specific revisions toJustice Manual (previously referred to as the U.S. Attorneys’ Manual).
The Policy clarifies the relationship between the scope of a defendant’s disclosures regarding individuals and qualifying for cooperation credit, particularly in the context of civil litigation. In so doing, it also raises critical compliance oversight issues for corporate governance. Continue reading →
On October 23, 2018, the French Parliament enacted a law aimed at combatting fraud (the “Law”). The most innovative provisions of the Law change key procedural aspects of tax law enforcement, which is likely to result in an increased number of criminal tax fraud prosecutions against both individuals and legal entities. The Law also addresses customs and social security frauds.
Doctrines for attributing knowledge to corporations seem to be stuck between doing far too little and the risk of doing far too much. Respondeat superior forces plaintiffs and prosecutors to find a single corporate employee with all the relevant knowledge. This means corporations automatically win against knowledge-based allegations when, as will predictably happen, knowledge is dispersed across corporate personnel. The familiar solution is to introduce some way to aggregate knowledge. But the doctrine that does just that—the collective knowledge doctrine—has met with widespread skepticism. The worry is that the collective knowledge doctrine treats corporations as knowing too much by triggering knowledge-based penalties for mere negligence in maintaining lines of communication. As a result, few courts have adopted the collective knowledge doctrine since it was introduced more than thirty years ago.
If judges and scholars are ever going to get comfortable with moving beyond respondeat superior, they need to think hard about the informational logic of the collective knowledge doctrine. As I argue in a working paper, The Corporation and the Epistemologist, that logic is poorly understood. Discussions vacillate without warning between two versions of the doctrine: one of which is entirely toothless, the other of which is worryingly permissive. Once these two versions are distinguished, the search for a happy compromise can begin. Continue reading →
On September 25, 2018, Deputy Attorney General Rod Rosenstein announced the rollout of the “Justice Manual” – a revised and renamed version of the U.S. Attorneys’ Manual, a long-used reference for Department of Justice (DOJ) policies and procedures. The most significant changes appear to be confined to anticipated codifications of well-publicized new policies (although one such policy was, puzzlingly, omitted). But some other changes have not been previously addressed by Department leadership, and may provide insight into the Department’s mindset in light of recent events.
The recent rollout was the culmination of a yearlong review and overhaul of the Manual, the first in more than 20 years. This initiative to streamline DOJ policies and revamp the U.S. Attorneys’ Manual was announced by Deputy AG Rosenstein last October in a speech at NYU. Rosenstein explained in his initial announcement that the project would work to identify redundancies, clarify ambiguities, eliminate surplus language, and update the Manual to reflect current law and DOJ practice, including through the incorporation of outstanding policy memoranda. According to DOJ’s recent announcement, the name change from “U.S. Attorneys’ Manual” to “Justice Manual” not only reflects this significant undertaking by DOJ employees, but also emphasizes the applicability of the Manual to the entire Department, beyond the U.S. Attorneys’ Offices.Continue reading →
In an important speech, Deputy Assistant Attorney General Matthew Miner of the Department of Justice’s Criminal Division announced on Thursday that DOJ will “look to” the principles of the FCPA Corporate Enforcement Policy (PDF: 50.6 KB) in evaluating “other types of potential wrongdoing, not just FCPA violations” that are uncovered in connection with mergers and acquisitions. As a result, when an acquiring company identifies misconduct through pre-transaction due diligence or post-transaction integration, and then self-reports the relevant conduct, DOJ is now more likely to decline to prosecute if the company fully cooperates, remediates in a complete and timely fashion, and disgorges any ill-gotten gains. Continue reading →
On 6 September 2018, following hot on the heels of the important decision on the application of litigation privilege in internal investigations in ENRC v Serious Fraud Office (read our recent summary here), the Administrative Court handed down its judgment in R (KBR Inc.) v Serious Fraud Office concerning the Serious Fraud Office’s (SFO) powers to compel the production of documents held outside of the United Kingdom by companies incorporated outside of the United Kingdom. The Administrative Court held that where there is a “sufficient connection” to the United Kingdom, the SFO can compel the production of such documents. Continue reading →
The Court of Appeal reversed the High Court’s decision and found that all of the interviews conducted by ENRC’s external lawyers were covered by litigation privilege, and so too was the work conducted by the forensic accountancy advisors for the books and records review. The Court of Appeal found that ENRC did in fact reasonably contemplate prosecution when the documents were created. Moreover, while determining that it did not have to decide the issue, the Court of Appeal also stated that it may also have departed from the existing narrow definition of “client” for legal advice privilege purposes in the context of corporate investigations. Continue reading →
On August 24, 2018, the Second Circuit handed down its long-awaited decision in United States v. Hoskins,  addressing the question of whether a non-resident foreign national can be held liable for violating the FCPA under a conspiracy theory, where the foreign national is not an officer, director, employee, shareholder or agent of a U.S. issuer or domestic concern and has not committed an act in furtherance of an FCPA violation while in the U.S. In a word, the court held that the answer is “no,” concluding that the government may not “expand the extraterritorial reach of the FCPA by recourse to the conspiracy and complicity statutes.” The court added, however, that the same foreign national could be liable as a co-conspirator if he acted as an agent of a primary violator.
While the ruling is undoubtedly an important curb on some potential sources of liability for foreign entities and individuals, the availability of agent liability may limit the practical impact of the decision for many non-resident foreign nationals. Unfortunately, the decision did not address the scope of agent liability under the FCPA, leaving that issue open. As a result, further development in this and subsequent cases — especially with respect to the meaning of “agency” under the FCPA — will necessarily be required before the full impact of the Hoskins ruling becomes clear. However, the decision is likely good news for foreign companies that enter into joint ventures with U.S. companies and some other classes of potential defendants, as it may be harder for the U.S. government to charge them with FCPA violations. Continue reading →
One of the most frequently discussed white collar issues of late has been the benefits of voluntarily self-disclosing to the U.S. Department of Justice (“DOJ”) allegations of misconduct involving a corporation. This is the beginning of periodic analyses of white collar issues unique to financial institutions, and in this issue we examine whether and to what extent a financial institution can expect a benefit from DOJ for a voluntary self-disclosure (“VSD”), especially with regard to money laundering or Bank Secrecy Act violations. Although the public discourse regarding VSDs tends to suggest that there are benefits to be gained, a close examination of the issue specifically with respect to financial institutions shows that the benefits that will confer in this area, if any, are neither easy to anticipate nor to quantify. A full consideration of whether to make a VSD to DOJ should include a host of factors beyond the quantifiable benefit, ranging from the likelihood of independent enforcer discovery; to the severity, duration, and evidentiary support for a potential violation; and to the expectations of prudential regulators and any associated licensing or regulatory consequences, as well as other factors. Continue reading →