Category Archives: Corporate Enforcement

Willfulness and Negligence are Mutually Exclusive Standards of Liability (Something We All Intuitively Knew Already)

Greg Morvillo and Christine Hanley

Rudyard Kipling famously quipped “Oh, East is East and West is West and never the twain shall meet.”  Although crafted in 1889, this sentiment is newly applicable to a D.C. Circuit Court of Appeals opinion in The Robare Group v. S.E.C, 922 F.3d 468, 479-80 (D.C. Cir. 2019).  The D.C. Circuit essentially held that Willfulness is Willfulness and Negligence is Negligence, and never the twain shall meet, only less poetically.  This potentially landmark decision held that willfulness and negligence are mutually exclusive standards of liability – one requiring intent to commit wrongdoing and the other requiring a lack of intent to commit wrongdoing – and the SEC cannot impose civil liability under both standards for the same conduct. 

Robare arose out of a 2014 administrative cease and desist proceeding against The Robare Group (“TRG”), an investment advisory firm, and its principals and co-owners, Mark L. Robare and Jack L. Jones.  The complaint alleged that respondents received a fee from Fidelity Investments (“Fidelity”), which provided clearing services for TRG’s advisory clients, whenever TRG’s clients invested in certain funds offered on Fidelity’s online platform.  The SEC further alleged that TRG failed to disclose this fee and that TRG had a conflict of interest arising from the revenue-sharing arrangement between TRG and Fidelity.  Continue reading

The Financial Action Task Force Evaluation of Russia: An Opportunity

By Joshua Kirschenbaum and Jennifer DeNardis

Introduction     

Russia in recent years has been the most conspicuous source of illicit flows into European banks and the Western financial system. The Russian government weaponizes these opaque channels to export corruption, facilitate influence operations, and prop up the domestic patronage system. Despite a money laundering crackdown by the Central Bank of Russia (CBR), the country’s main financial supervisor, recent history poses serious questions about the effectiveness of the central bank, law enforcement agencies, and prosecutors in combating illicit financial activity.

The Financial Action Task Force (FATF) sets international anti-money laundering (AML) standards (PDF 6.37 MB)  and evaluates its member states for compliance. It was created in 1989 and is housed at the Organization for Economic Co-operation and Development.  Russia joined in 2003. FATF last evaluated Russia over a decade ago under the old “technical compliance” review process, which largely focused on the country’s legal framework. FATF now evaluates (PDF 1.51 MB) jurisdictions on the basis of the effectiveness of their AML regimes. The new method focuses on enforcement and outcomes. That makes this year’s FATF evaluation of Russia a unique opportunity to protect democratic countries from corrosive financial flows.

Should FATF conclude that Russia falls short, it could “greylist” the jurisdiction, which would have immediate reputational effects. It could ultimately lead to a process by which other FATF members, would require their financial institutions to take special steps in dealing with Russian banks. This would raise the cost of international business and banking in Russia. Such a decision against an FATF member state would be unprecedented but not necessarily unjustified. Continue reading

The Slow Introduction of Pre-Trial Diversion Mechanisms in the Italian System of Corporate Liability

by Simone Lonati

The Common Law-inspired decision to enlist corporations as precious, proactive allies in the essential activities of detection and combat of crime, and particularly of bribery, has often been looked at with the typical skepticism of civil law systems, which – a long way from accepting the idea of equal cooperation in the fact-finding mission – require a neat distinction of roles in proceedings. Nonetheless, it is by now undeniable that the perception of corporate compliance in the Italian legal system has undergone a significant transformation in recent years.

The structure of Legislative Decree n. 231/2001, which established for the first time in the Italian legal system an administrative liability of legal persons and entities without legal personality for the crimes committed by employees and executives, outlines a correction model that views the conduct held by the accused legal entity during an investigation and the related criminal proceedings as one of the cornerstones triggering the virtuous path towards compliance monitoring, which should bring the entity back on the tracks of profitable compliance. Continue reading

CFTC Releases Enforcement Manual in Hopes of Increasing Transparency

By Paul M. ArchitzelElizabeth L. Mitchell, Petal P. WalkerMatthew Beville, and Seth Davis

Intending to bring greater transparency to the operation of its enforcement program, the Commodity Futures Trading Commission’s (CFTC or Commission) Division of Enforcement (the Division) recently, for the first time, made public its Enforcement Manual (Manual).[1] The Manual provides market participants, industry professionals and the enforcement bar with insights into the Division’s detections, investigations, and pursuit of violations (and potential violations) of the Commodity Exchange Act (CEA) and the regulations thereunder. According to CFTC Director of Enforcement James McDonald, this move is intended to “promote fairness, increase predictability, and enhance respect for the rule of law.”

The public release of the Manual brings CFTC practice in line with those of other enforcement agencies, including the Department of Justice and the Securities and Exchange Commission (SEC).[2] The Manual provides a roadmap of the life cycle of a CFTC enforcement action, from the opening of an investigation through the Wells process to resolution. Although the Manual provides broad insight into the general policies and procedures that guide the work of the Division’s Staff, it does not provide concrete guidance on how those general policies may be applied in particular cases. 

Below, we highlight several of the Manual’s more significant provisions. Continue reading

DOJ Issues Guidance on Cooperation In False Claims Act Investigations

by Jennifer Kennedy Park, Breon S. Peace, and Lisa Vicens

DOJ Issues Guidance on Cooperation In False Claims Act Investigations

On May 7, 2019, the Department of Justice (“DOJ” or “the Department”) issued formal guidance to DOJ’s False Claims Act (“FCA”) litigators on the circumstances in which DOJ will grant credit for cooperation during FCA investigations.[1] The guidance explains the factors that DOJ considers in determining whether to award cooperation credit in FCA investigations and the types of credit available.[2] 

Under the guidance, cooperation credit in FCA cases may be earned by voluntarily disclosing misconduct unknown to the government, cooperating in an ongoing investigation or undertaking remedial measures in response to a violation of the FCA.  Aside from taking these steps, a company may receive at least partial credit by identifying individuals with relevant information about the conduct, preserving relevant documents and information beyond existing business practice or legal requirements, and assisting in an ongoing investigation by disclosing relevant facts, among others.  Cooperation credit will take the form of reducing the penalties or damages multiple sought by the DOJ.  The maximum credit that a defendant receives may not surpass the amount of full compensation the government would receive for losses caused by the defendant’s misconduct.  This amount includes government damages, lost interest, costs of investigation and relator share. Continue reading

Scapegoating: A Structural Risk in Current U.S. Cross-Border Corporate Crime Enforcement

by Laurent Cohen-Tanugi

The interaction of corporate and individual liability in cases of corporate misconduct raises complex issues for prosecutors, management, and employees alike. Such issues, however, are generally discussed in connection with situations where corporate wrongdoing can be attributed to one or more individuals. Yet those “rogue employee” situations are neither the most difficult ones to address, nor the most frequent to arise.

More common, as evidenced by the numerous DPAs acknowledging wrongdoing entered into by corporate entities, and more problematic from a fairness standpoint, are situations where wrongdoing is instructed more or less overtly by senior management, and/or imbedded in a company’s business model and corporate culture, and implemented by lower level executives as part of their duties. The fairness issue stems from the pressure on both prosecutors and the company’s senior management to identify sanctionable individuals who may not be those ultimately responsible. And this problem is compounded in cross-border enforcement situations. Continue reading

DOJ Updates Guidance on Evaluating Corporate Compliance Programs

by Matthew L. Biben, Kara Brockmeyer, Helen V. Cantwell, Andrew J. Ceresney, Andrew M. Levine, David A. O’Neil, David Sarratt, Jonathan R. Tuttle, Mary Jo White, Bruce E. Yannett, Lisa Zornberg, Ryan M. Kusmin, Jil Simon

On April 30, 2019, Assistant Attorney General Brian Benczkowski announced an updated version of the Evaluation of Corporate Compliance Programs (the “Updated Guidance”).[1] This Updated Guidance supersedes a document of the same name that the Fraud Section of DOJ’s Criminal Division published online in February 2017 without any formal announcement (the “2017 Guidance”). Although not breaking much new ground, we believe the Updated Guidance can serve as a valuable resource for those grappling with how best to design, implement, and monitor an effective corporate compliance program.

In contrast to the 2017 Guidance—which listed dozens of questions to consider in evaluating a compliance program without providing much context—the Updated Guidance employs a more holistic approach. It focuses on three fundamental questions drawn from the Justice Manual:

  • Is the corporation’s compliance program well designed?
  • Is the program implemented effectively?
  • Does the program work in practice?[2]

Continue reading

DOJ Updates FCPA Corporate Enforcement Policy

By Jonathan S. Kolodner, Lisa Vicens, and Lorena Michelen

In a recent speech at the annual ABA White Collar Crime Conference in New Orleans, Assistant Attorney General Brian Benczkowski of the Criminal Division of the Department of Justice (“DOJ”) announced certain changes to the FCPA Corporate Enforcement Policy (“the Enforcement Policy” or “Policy”) to address issues that the DOJ had identified since its implementation.[1]  These and other recent updates have since been codified in a revised Enforcement Policy in the Justice Manual.[2] 

The Enforcement Policy, first announced by the DOJ in November 2017, was initially applicable only to violations of the FCPA, but was subsequently extended to all white collar matters handled by the Criminal Division.[3]  The Policy was designed to encourage companies to voluntary self-disclose misconduct by providing more transparency as to the credit a company could receive for self-reporting and fully cooperating with the DOJ.  Among other things, the Enforcement Policy provides a presumption that the DOJ will decline to prosecute companies that meet the DOJ’s requirement of “voluntary self-disclosure,” “full cooperation,” and “timely and appropriate remediation,” absent “aggravating circumstances” – i.e. relating to the seriousness or frequency of the violation.  For more information on the Enforcement Policy, read our blog post explaining it

The most significant recent changes to the Enforcement Policy include eliminating the prohibition on a company’s usage of ephemeral instant messaging applications to receive full credit for “timely and appropriate remediation.”  Additionally, the modified Enforcement Policy (1) now makes clear that one requirement of cooperation, de-confliction of witness interviews, should not interfere with a company’s internal investigation; (2) confirms based on an earlier announcement, that the Policy applies in the context of a merger and acquisition (“M&A”), if an acquiring company discovers and self-discloses misconduct in a target; and (3) implements a change announced months before by the Deputy Attorney General that a company only needed to provide information about individuals “substantially involved” in the offense.  These changes are discussed in greater detail below. Continue reading

Energy Market Manipulation Remains a Hot Issue at FERC

by Jonathan G. Cedarbaum, H. David Gold, and Nathaniel B. Custer

Since the passage of the Energy Policy Act of 2005, fraud and market manipulation have been top enforcement priorities of the Federal Energy Regulatory Commission (FERC or the Commission).  FERC’s most recent annual report on enforcement (PDF: 2.72 MB) shows that, in fiscal year 2018, FERC opened some 16 investigations into market manipulation (out of 24 total) and recovered almost $150 million in civil penalties and disgorgement of profits, much of which was from market manipulation cases. 

Recent case law, meanwhile, indicates that courts interpret FERC’s authority in this sphere permissively. The courts, for example, have sided with FERC in allowing considerable time to bring enforcement actions in market manipulation cases, notwithstanding statute of limitations defenses raised by the regulated entities subject to enforcement. 

Energy companies and other businesses subject to FERC’s enforcement authority should continue to monitor developments in this area and make sure that their compliance programs are up to date. Continue reading

CFTC Enters the Market for Anti-Corruption Enforcement

by Alice S. Fisher, Douglas K. Yatter, William R. Baker III, Douglas N. Greenburg, Robyn J. Greenberg, and Benjamin A. Dozier

New enforcement advisory encourages reporting of foreign corrupt practices that the agency intends to pursue under the Commodity Exchange Act.

On March 6, 2019, the Division of Enforcement (Division) of the US Commodity Futures Trading Commission (CFTC or Commission) announced that it will work alongside the US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC) to investigate foreign bribery and corruption relating to commodities markets.[1] CFTC Enforcement Director James McDonald announced the agency’s new interest in this area as the Division issued an enforcement advisory on self-reporting and cooperation for violations of the Commodity Exchange Act (CEA) involving foreign corrupt practices.[2]

For companies and individuals who participate in the markets for commodities and derivatives — or whose activities may impact those markets — the CFTC announcement adds a new dimension to an already crowded and complex landscape for anti-corruption enforcement. A range of industries, including energy, agriculture, metals, financial services, cryptocurrencies, and beyond, must now consider the CFTC and the CEA when assessing global compliance and enforcement risks relating to bribery and corruption. This article summarizes the new developments and outlines key considerations for industry participants and their legal and compliance teams. Continue reading