Tag Archives: Wayne M. Carlin

Remaining Attuned to Internal Whistleblower Reports

by John F. Savarese, Ralph M. Levene, and Wayne M. Carlin 

The SEC’s whistleblower program has long been a centerpiece of its enforcement efforts. Over the past seven weeks alone, the Commission has announced eight whistleblower awards totaling more than $56 million, including a single award on April 16 of $27 million, the largest of the year and the sixth largest award overall since the inception of the program. Because the coronavirus pandemic has understandably dominated the news over that same period, this striking accumulation of whistleblower awards has received little press attention. But we think these recent awards provide a telling and significant reminder of the critical importance, even in the current challenging environment, of keeping employee hotlines open and of responding to internal compliance reports promptly and effectively.
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White Collar and Regulatory Enforcement in the Era of COVID-19

by John F. Savarese, Ralph M. Levene, Wayne M. Carlin, and David B. Anders

When we issued our memorandum (PDF: 231KB) on “what to expect in 2020” concerning white collar and regulatory enforcement developments, we certainly did not expect that just two months later, 41 states would effectively be locked down due to the coronavirus pandemic, many courts would be closed, and governments would be intensely focused on adopting measures responsive to the global health crisis.  What we’re now seeing in the white collar/regulatory world is that, instead of pushing forward at their usual pace, prosecutors and regulators are adjusting to a new reality in which live testimony is impractical, courts are on pause and most everyone is working from home.  It is impossible to predict when the normal cadence of such investigations will resume, but inquiries of all kinds will undoubtedly return to their normal pace and intensity when the crisis abates. Continue reading →

Controlling Material, Non-Public Information During the Coronavirus Pandemic

by John F. Savarese, Wayne M. Carlin, and David B. Anders 

In an unusual statement issued earlier this week, the Co-Directors of the SEC’s
Division of Enforcement, Stephanie Avakian and Steven Peikin, reminded market
participants of the critical importance of maintaining proper control over the
dissemination of material, non-public information, adhering to the restrictions
imposed by Regulation FD on selective disclosures, and assuring compliance with
policies and procedures designed to prevent insider trading and other conduct that
would undermine market integrity. They stressed in particular that, as companies and
markets cope with the outbreak of COVID-19 and the continuing coronavirus
pandemic, corporate insiders are likely learning new material, non-public information
“that may hold an even greater value than under normal circumstances.”
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DOJ Applies Principles of FCPA Corporate Enforcement Policy in Other White-Collar Investigations, Increasing Opportunity for Corporate Declinations

by John F. Savarese, Ralph M. Levene, Wayne M. Carlin, David B. Anders, Marshall L. Miller, and Jonathan Siegel

Late last week, the Department of Justice’s Criminal Division announced at an ABA white-collar conference that it has begun using the FCPA Corporate Enforcement Policy (PDF: 51 KB) as “nonbinding guidance” in other areas of white-collar enforcement beyond the FCPA.  As a result, absent aggravating factors, DOJ may more frequently decline to prosecute companies that promptly self-disclose misconduct, fully cooperate with DOJ’s investigation, remediate in a complete and timely fashion, and disgorge any ill-gotten gains.  As a first example of this approach, the officials pointed to DOJ’s recent decision (PDF: 1,743 KB) to decline charges against Barclays PLC, after the bank agreed to pay back $12.9 million in wrongful profits, following individual charges arising out of a foreign exchange front-running scheme. Continue reading →

SEC Releases New Guidance on Cybersecurity Disclosures and Controls

by John F. Savarese, David A. Katz, Wayne M. Carlin, David B. Anders, Sabastian V. Niles, Marshall L. Miller, and Jonathan Siegel

Yesterday, in keeping with a heightened governmental focus on cybersecurity, as exemplified by the Justice Department’s formation of a new Cyber-Digital Task Force (PDF: 62 KB) earlier this week, the Securities and Exchange Commission announced new guidance on cybersecurity disclosures by public companies (the “Guidance (PDF: 139 KB)”).

Much of the Guidance tracks 2011 interpretive guidance from the SEC’s Division of Corporation Finance and retains a focus on “material” cyber risks and incidents.  However, the expanded details and heightened pressure to disclose indicated in the Guidance, along with its issuance by the Commission itself, signal that the SEC expects public companies to consider more detailed disclosure of cyber risks and incidents, and to maintain “comprehensive” policies and procedures in this area.  The SEC is also encouraging, though not requiring, forward-leaning approaches, such as with respect to disclosures about the company’s cyber risk management programs and the engagement of the board of directors with management on cybersecurity issues.  SEC Chairman Jay Clayton has also directed (PDF: 92 KB) SEC staff to monitor corporate cyber disclosures. Continue reading →

White Collar and Regulatory Enforcement: What to Expect in 2018

by John F. Savarese, Ralph M. Levene, Wayne M. Carlin, David B. Anders, Jonathan M. Moses, Marshall L. Miller, Louis J. Barash, and Carol Miller

Introduction

In our memo last year, we acknowledged that it was close to impossible to predict the likely impact that the newly elected Trump administration would have on white-collar and regulatory enforcement.  (White Collar and Regulatory Enforcement: What to Expect in 2017 (PDF: 240 KB)  Instead, we set out a list of initiatives we urged the new administration to consider, including clarifying standards for when cooperation credit would be given, reducing the use of monitors, and giving greater weight to a company’s pre-existing compliance program when exercising prosecutorial discretion, among other suggestions.  While the DOJ under Attorney General Jeff Sessions has, for example, taken some steps toward clarifying the applicable standards for cooperation and increasing incentives to disclose misconduct in the FCPA area, few other policy choices or shifts in approach have been articulated or implemented.  Continue reading →