As we begin to prepare for a full schedule of events in 2024, starting with an event on Voluntary Self-Disclosure Policy for Export Controls Violations on January 16, 2024, the NYU School of Law Program on Corporate Compliance and Enforcement (PCCE) is taking a moment to reflect on our busy Fall 2023 program. First up: our September 6, 2023 Roundtable on SEC enforcement policy.
SEC Director of Enforcement Gurbir Grewal (©Hollenshead: Courtesy of NYU Photo Bureau)
by Miriam Baer
For scholars, jurists and other observers, the body of doctrines collectively known as “corporate criminal law” continues to generate questions about its provenance and mission. Is it just another form of criminal punishment, whose weaknesses mirror the weaknesses we encounter throughout the criminal justice system generally? Or is it so different in design and execution that it functions as something wholly different from criminal law, prompting its own set of first principles and challenges? Should we think of corporate criminal law as a form of regulation, as just another manifestation of criminal law, or as something more transformative that can be used to spur systemic changes in how our society relates to the private sector and to government generally?
by Miriam Baer
Much has changed since Donald Trump was elected president in 2016, but the government’s primary method for dealing with corporate offenders remains the same: the government promises some degree of leniency in either charging or punishment in exchange for the corporate offender’s promise to improve the internal structures and systems that ensure its compliance with law.
by Miriam Baer
Next October, the Supreme Court will hear oral argument in Digital Realty Trust, Inc. v. Somers. The case asks the Court to resolve whether the Dodd-Frank Act’s anti-retaliation protections for “whistleblowers” apply to those individuals who first report information solely to the SEC, or instead to the broader group of individuals who report information internally or other enforcement agencies before seeking out the SEC. As noted in an earlier post on this blog, circuit courts are (PDF: 161 KB) split (PDF: 1,469 KB) on the issue, and whereas the SEC itself has embraced the broader definition, Dodd-Frank’s explicit definitional language offers some room for doubt.
When the case does reach the Supreme Court, litigants favoring the broader definition presumably will portray what has now become the standard depiction of the whistleblower’s dilemma: An employee knows her bosses are cooking the books. She would like nothing to do with this sort of activity but she fears she will lose her job and be iced out of her industry if she says anything. Continue reading
by Miriam Baer
Addressing a full house of practitioners, scholars and government officials on September 10, 2015, Deputy Attorney General Sally Quillian Yates announced the Department of Justice’s latest efforts to pursue corporate executives who had violated the law. “Crime is crime,” Yates told her audience, and the Department was committed to “holding lawbreakers accountable regardless of whether they commit their crimes on the street corner or in the boardroom.”
To demonstrate this renewed vigor, Yates summarized her September 9, 2015 Memorandum, entitled “Individual Accountability for Corporate Wrongdoing,” which instantaneously became known as the Yates Memo (PDF: 449 KB). Several of its provisions were uncontroversial and were accepted without comment. The measure attracting most attention was the Department’s stance on corporate offenders seeking prosecutorial leniency. Continue reading