Tag Archives: Marietou Diouf

DOJ Announces Policy Ending “Regulation by Prosecution” of Digital Assets

by Joel Cohen, Brent Wible, Ladan Stewart, Marietou Diouf, Robert Denault, and Elisha Mvundura 

Photos of the authors

Top left to right: Joel Cohen, Brent Wible and Ladan Stewart, Bottom left to right: Marietou Diouf, Robert Denault and Elisha Mvundura (Photos courtesy of White & Case LLP).

On April 7, 2025, Deputy Attorney General Todd Blanche issued a memorandum instructing federal prosecutors to cease pursuing “litigation or enforcement actions that have the effect of superimposing regulatory frameworks on digital assets,” noting that regulators and not prosecutors will “do this work outside the punitive criminal justice framework.”[1]  Under the new policy, the Justice Department will prioritize investigations and prosecutions involving individuals who defraud investors in digital assets or who use digital assets in furtherance of other crimes, including offenses related to terrorism, narcotics trafficking, human trafficking, organized crime, hacking, and cartel and gang financing.  The memorandum indicates that the Justice Department plans to close all ongoing investigations that are inconsistent with the new policy.

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SEC Charges Investment Adviser – Signaling Importance of Accurate Disclosure of AML Procedures

by Joel Cohen, Tami Stark, Claudette Druehl, Marietou Diouf, and Jason Ho

Photos of the authors

Left to right: Joel Cohen, Tami Stark, Claudette Druehl, Marietou Diouf and Jason Ho (Photos courtesy of the authors)

The U.S. Securities & Exchange Commission (“SEC”) recently announced settled charges against an investment adviser for misrepresentations regarding its anti-money laundering (“AML”) procedures and compliance failures.[1]  As we outlined in our recent client alert, investment advisers will be required by the Financial Crimes Enforcement Network (“FinCEN”) to implement an AML program by January 1, 2026.  This SEC action does not shed new light on the scope of SEC jurisdiction over AML.  Instead, it serves as a reminder that if an investment adviser says it is voluntarily complying with AML due diligence laws by conducting AML due diligence, it needs to do so.  An investment adviser must also accurately describe its AML program once the anticipated AML requirement for investment advisers commences.

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SEC Enforcement Year-End Overview

by Joel Cohen, Ladan Stewart, Tami Stark, Marietou Diouf, Gabriella Klein, and Robert DeNault

Photos of the authors.

Top (Left to Right): Joel M. Cohen, Ladan Stewart and Tami Stark. Bottom (Left to Right): Marietou Diouf, Gabriella Klein, and Robert DeNault. (Photos courtesy of White & Case LLP)

Introduction

2024 marks the final year of Gary Gensler’s term as Chair of the U.S. Securities and Exchange Commission (“SEC”).  The Gensler SEC has been aggressive on both the enforcement and rulemaking fronts.  In response, the financial industry has fought back in sometimes unprecedented ways, including through legal challenges to the SEC’s rulemaking and enforcement programs.  While questions remain about what the SEC will prioritize under the leadership of presumptive incoming Chair Paul Atkins, it seems likely that many of Chair Gensler’s enforcement priorities will be rolled back in the coming years.  We can expect, for example, to have neared the end of the SEC’s years-long off-channel communications sweep.  And the Gensler SEC’s intense focus on the crypto industry will very likely shift significantly under Chair Atkins.

We provide here an overview of the SEC’s enforcement program in 2024 and end with additional thoughts on how the agency’s enforcement priorities will likely change in 2025 and beyond. 

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FinCEN and SEC Move Closer to New AML Requirements for Investment Advisers & ERAs

by Joel M. Cohen, Claudette Druehl, Marietou Diouf, Tami Stark, Prat Vallabhaneni, and Robert DeNault

Photos of the authors

Top: Joel M. Cohen, Claudette Druehl, and Marietou Diouf
Bottom: Tami Stark, Prat Vallabhaneni, and Robert DeNault
(Photos courtesy of White & Case LLP)

On May 13, 2024, FinCEN and the SEC jointly proposed a new rule that would require SEC-registered investment advisers and exempt reporting advisers to maintain written customer identification programs (CIPs).  The new rule supplements a proposal in February to impose requirements on investment advisers similar to those that have existed for broker-dealers since 2001, as a means to address illicit finance and national security threats in the asset management industry.

For investment advisers who do not currently have an AML/CFT program, this compliance obligation will create a large shift in the way they operate.  This will require significant legal time and attention, but it will be time well spent considering potential regulatory exposure and likely indemnification obligations which flow through commercial agreements in favor of counterparties.

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Recent Regulatory Announcements Confirm Increased Scrutiny of “AI-Washing”

by Tami Stark, Courtney Hague Andrews, Maria Beguiristain, Joel M. Cohen, Daniel Levin, Darryl Lew, and Marietou Diouf

Photos of authors

Top (left to right): Tami Stark, Courtney Hague Andrews, Maria Beguiristain, and Joel M. Cohen
Bottom (left to right): Daniel Levin, Darryl Lew, and Marietou Diouf (Photos courtesy of White & Case LLP)

In December 2023, we published an alert concerning US Securities and Exchange Commission (“SEC”) Chair Gary Gensler’s warning to public companies against “AI washing” – that is, making unfounded claims regarding artificial intelligence (“AI”) capabilities.[1] It is no surprise that since then regulators and the US Department of Justice (“DOJ”) have repeated this threat and the SEC publicized an AI related enforcement action that typically would not get such emphasis.

In January 2024, the SEC’s Office of Investor Education and Advocacy issued a joint alert with the North American Securities Administrators Association and the Financial Industry Regulatory Authority warning investors of an increase in investment frauds involving the purported use of AI and other emerging technologies.[2] Similarly, the Commodity Futures Trading Commission Office of Customer Education and Outreach issued a customer advisory warning the public against investing in schemes touting “AI-created algorithms” that promise guaranteed or unreasonably high returns.[3]

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A View from Abroad: Unpacking DOJ’s M&A Safe Harbor Policy, Part II

by Joel M. Cohen, Marietou Diouf, James Hsiao, Francisco Málaga Diéguez, Aleksandra Oziemska, Jean-Pierre Picca, Anneka Randhawa, Jean-Lou Salha, Dr. Daniel Zapf, Dr. Nicolas Rossbrey, and Dr. Tine Schauenburg

Photos of the authors.

Top left to right: Joel M. Cohen, Marietou Diouf, James Hsiao, Francisco Malaga, Aleksandra Oziemska, and Jean-Pierre Picca. Bottom left to right: Anneka Randhawa, Jean-Lou Salha, Daniel Zapf, Dr. Nicolas Rossbrey, and Dr. Tine Schauenburg (Photos courtesy of White & Case LLP)

On October 4, 2023, United States Deputy Attorney General (DAG) Lisa Monaco announced a new Department of Justice (DOJ) Mergers & Acquisitions Safe Harbor policy that encourages companies to self-disclose criminal misconduct discovered by an acquiring company during the acquisition of a target company.  Under the policy, the acquiring party will receive a presumption of criminal declination if it promptly and voluntarily discloses criminal misconduct, cooperates with any ensuing investigation, and engages in appropriate remediation, restitution and disgorgement. While the DOJ has offered little guidance as to what it might expect from a company that self-discloses under the policy, many jurisdictions outside the United States offer corporate self-disclosure and cooperation incentives. This alert analyzes several of those practices in Europe and Asia, and what can be learned from their application. Continue reading →

Questions about the “Carrot” and “Stick” Remain: Unpacking DOJ’s New M&A Safe Harbor Policy, Part I

by Joel M. Cohen and Marietou Diouf

Photos of the authors

From right to left: Joel M. Cohen and Marietou Diouf (Photos courtesy of White & Case LLP)

On October 4, 2023, United States Deputy Attorney General (DAG) Lisa Monaco announced a new Department of Justice (DOJ) Mergers & Acquisitions Safe Harbor policy that encourages companies to self-disclose criminal misconduct discovered by an acquiring company during the acquisition of a target company.  Under the policy, the acquiring party will receive a presumption of criminal declination if it promptly and voluntarily discloses criminal misconduct, cooperates with any ensuing investigation, and engages in appropriate remediation, restitution and disgorgement.

The Safe Harbor policy is a clear continuation of the DOJ’s push for corporate voluntary self-disclosure (VSD).  But as with many DOJ policy pronouncements, the devil is in the details.  It remains unclear what it will take for an acquiring company to obtain the “carrot” DOJ is dangling and poses questions as to the “stick” the DOJ might wield if a self-disclosure does not achieve safe harbor, or more broadly, if an acquirer fails to identify criminal misconduct in the acquisition process. Continue reading →