by Greg D. Andres, Uzo Asonye, Sidney Bashago, Martine M. Beamon, Robert A. Cohen, Daniel S. Kahn, Tatiana R. Martins, Fiona R. Moran, Paul J. Nathanson, and Patrick S. Sinclair
Top left to right: Greg D. Andres, Uzo Asonye, Sidney Bashago, Martine M. Beamon, and Robert A. Cohen
Bottom left to right: Daniel S. Kahn, Tatiana R. Martins, Fiona R. Moran, Paul J. Nathanson, and Patrick S. Sinclair
(Photos courtesy of Davis Polk & Wardwell LLP)
by Greg D. Andres, Uzo Asonye, Martine M. Beamon, Robert A. Cohen, Daniel S. Kahn, Tatiana R. Martins, Fiona R. Moran, Paul J. Nathanson, and Patrick S. Sinclair
Top left to right: Greg D. Andres, Uzo Asonye, Martine M. Beamon, Robert A. Cohen, and Daniel S. Kahn.
Bottom left to right: Tatiana R. Martins, Fiona R. Moran, Paul J. Nathanson, and Patrick S. Sinclair.
(Photos courtesy of Davis Polk & Wardwell LLP)
In recent speeches, Deputy Attorney General Lisa Monaco and Principal Associate Deputy Attorney General Marshall Miller laid out how the DOJ uses active corporate criminal enforcement and interdepartmental cooperation to preserve national security and the rule of law, and previewed forthcoming compliance guidance on M&A deals.
by Greg D. Andres, Uzo Asonye, Kendall Howell, Paul D. Marquardt, Tatiana R. Martins, John B. Reynolds III, Will Schisa, Daniel P. Stipano, and Charles Marshall Wilson.
FinCEN’s final rule, which goes into effect January 1, 2024, establishes the requirements for reporting companies to submit their beneficial ownership and company applicant information to the agency, with minimal changes from the proposed rule.
On September 30, 2022, the Financial Crimes Enforcement Network (FinCEN) published the final Beneficial Ownership Information Reporting Rule (the Beneficial Ownership Rule or Final Rule), requiring certain legal entities to submit to FinCEN a report containing information related to the beneficial owner and company applicant of the reporting company (BOI Report or Report). FinCEN published the proposed Beneficial Ownership Information Reporting Rule (the Proposed Rule) on December 7, 2021, as we discuss extensively in this client update. In the Final Rule, FinCEN adopted the language and provisions of the Proposed Rule in most material respects, with certain modifications in response to comments received from the public. Those modifications, as discussed below, include changes to the reporting timeframes, minor updates to the content of the BOI Reports, and changes that clarify (and to a certain extent expand) the definition of “beneficial owner.”
by Greg D. Andres, Uzo Asonye, Martine M. Beamon, Angela T. Burgess, Robert A. Cohen, Daniel S. Kahn, Tatiana R. Martins, Fiona R. Moran, Paul J. Nathanson, and Patrick S. Sinclair
In a pair of speeches, the Assistant Attorney General of DOJ’s Criminal Division emphasized its focus on compliance and announced that he has instructed his prosecutors to consider requiring chief executive officers and chief compliance officers to certify to (1) the accuracy of annual reports submitted pursuant to corporate resolutions, and (2) the effectiveness of their company’s compliance program prior to releasing the company from its obligations under a resolution agreement.
by Greg Andres, Uzo Asonye, Martine Beamon, Robert Cohen, Daniel Kahn, Tatiana Martins, Paul Marquardt, Fiona Moran, Paul Nathanson, and Daniel Stipano
Principal Associate Deputy Attorney General John Carlin previewed the Department of Justice’s (“DOJ”) refocused corporate enforcement efforts during a speech on October 5, 2021 at GIR Connect: New York. Carlin’s speech underscored the primary levers a new administration can pull to quickly and meaningfully impact the white collar enforcement space: messaging increased white collar enforcement to relevant stakeholders, instituting new and revising existing policies, creating dedicated taskforces, and increasing resources for white collar enforcement. Carlin addressed each of these categories by outlining key DOJ priorities, including increased enforcement related to sanctions, export controls, and cryptocurrency; continued expansion of international cooperation and coordination; a “surge” in resources, exemplified by a new dedicated FBI squad for Foreign Corrupt Practices Act (“FCPA”), market integrity, and health care fraud investigations; an upcoming review and revision of corporate enforcement policies; continued and increased use of data-driven enforcement techniques; enhanced and expanded international cooperation; and a warning regarding companies’ compliance with subpoenas and the terms of resolution agreements.
by Greg D. Andres, Martine M. Beamon, Angela T. Burgess, Tatiana R. Martins, Uzo Asonye, Robert A. Cohen, Neil H. MacBride, Fiona R. Moran, Stefani Johnson Myrick, and Paul J. Nathanson
The House of Representatives has passed a bill on a bipartisan basis that would be the first statute directly banning insider trading in the securities markets. The bill largely would preserve current case law, but would expand the scope of insider trading by prohibiting trades based on information obtained by theft or computer hacking. The House passed an identical bill in late 2019 that did not receive a Senate vote, but Senate action may be more likely under current Democratic control.
by Greg D. Andres, Martine M. Beamon, Angela T. Burgess, Tatiana R. Martins, Uzo Asonye, Robert A. Cohen, Neil H. MacBride, Fiona R. Moran, Paul J. Nathanson, and Kenneth L. Wainstein
Parties considering whether to settle an SEC enforcement investigation or criminal proceeding have a reasonable expectation that they will know the likely consequences of a settlement. This includes whether they can expect to receive a waiver from certain statutory disqualifications. Last week, however, the Acting Chair of the SEC announced that the Enforcement Division will not recommend any settlement offer that is conditioned on the settling party receiving a waiver. If this statement reduces transparency between SEC staff and parties negotiating a possible settlement, the result likely will be a more difficult and protracted process for both sides as it becomes difficult for settling parties to make informed decisions about the full implications of a resolution. Continue reading
by Greg D. Andres, Martine M. Beamon, Angela T. Burgess, Tatiana R. Martins, Uzo Asonye, Robert A. Cohen, Neil H. MacBride, Fiona R. Moran, Paul J. Nathanson, and Patrick Sinclair
The National Defense Authorization Act approved by Congress earlier this month would extend to 10 years the time for the SEC to file disgorgement claims for scienter-based violations. It also would toll the limitations period while a party is outside of the United States. As of this writing, the bill has been vetoed by the President, and the House has voted to override the veto. The Senate is currently debating on the override. Continue reading