Tag Archives: Martine M. Beamon

DOJ Clarifies Corporate Enforcement Policy

by Greg D. Andres, Martine M. Beamon, Angela T. Burgess, Tatiana R. Martins, Robert A. Cohen, Neil H. MacBride, Paul J. Nathanson, Linda Chatman Thomsen, Kenneth L. Wainstein, and Patrick S. Sinclair

On November 20, 2019, the Department of Justice (“DOJ”) modified its Corporate Enforcement Policy to clarify what level of disclosure is expected from companies in the early stages of an investigation. In short, the Policy reaffirms that companies should disclose known information—and the individuals involved—at the outset of investigations, while recognizing companies may not yet know all the relevant facts or individuals at that time.

The Corporate Enforcement Policy, first introduced as a pilot program concerning FCPA-related investigations in April 2016 and formalized in November 2017 by then–Deputy Attorney General Rod Rosenstein, offers incentives to companies that voluntarily disclose misconduct, timely remediate, and cooperate fully with the DOJ. Absent certain aggravating circumstances, a company following these steps can receive a declination assuming it fully disgorges any associated profits.[1] In March 2018, DOJ extended the Corporate Enforcement Policy beyond FCPA violations as nonbinding guidance concerning any corporate investigation. Since the Policy was introduced, DOJ has issued thirteen public FCPA declinations under its terms.[2]

Continue reading →

DOJ Expands Opportunities for Cooperation Credit in Criminal Antitrust Investigations

by Greg D. Andres, Martine M. Beamon, Angela T. Burgess, Arthur J. Burke, Ronan P. Harty, Neil H. MacBride, Tatiana R. Martins, Paul J. Nathanson, Howard Shelanski, Jesse Solomon

In a speech on July 11, 2019, Assistant Attorney General Makan Delrahim of the Antitrust Division of the Department of Justice (“DOJ”) announced that, for the first time, DOJ will consider the effectiveness of corporate compliance programs at the charging stage of criminal antitrust investigations.  Previously, under the Antitrust Division’s leniency program, only the first participant in the illegal activity to self-report could avoid a guilty plea; other cooperators received credit at sentencing.  Companies with effective compliance programs may now receive deferred prosecution agreements, even if they are not the first to self-report. Continue reading →

Securities Litigation Update: Circuit Court Split over the Constitutionality of SEC Administrative Law Judges Tees Up Issue for the Supreme Court

Courtesy of Greg D. Andres and Martine M. Beamon

The Tenth and D.C. Circuit Courts of Appeal have come to opposite conclusions in response to constitutional challenges to the Securities Exchange Commission’s (the “SEC’s”) appointment of Administrative Law Judges (“ALJs”). As detailed in our prior client alert, securities defendants across the country have contended that ALJs are inferior officers who were not appointed according to the Appointments Clause in Article II of the Constitution. The issue initially appeared settled when the D.C. Circuit held in Lucia v. SEC (PDF: 84 KB),[1] that ALJs were not officers subject to the requirements of the Appointments Clause.  But, on December 27, 2016, the Tenth Circuit decided in Bandimere v. SEC (PDF: 45 KB)[2] that ALJs were indeed inferior officers and therefore were in violation of the Appointments Clause. The Tenth Circuit’s ruling, if ultimately upheld, has implications for pending and prior SEC actions, and may lead to similar questions about other agencies’ administrative law judges. Given the circuit split, the constitutionality of the SEC’s ALJ appointment process may be headed to the Supreme Court. Continue reading →