The U.S. Department of Justice’s new Whistleblower Rewards Program and its Pilot Program on Voluntary Self-Disclosures for Individuals will reshape the factors companies consider when investigating and disclosing any corporate or financial issue that may fall within DOJ’s purview. Both programs incentivize individuals who voluntarily provide the DOJ with original, nonpublic, truthful disclosures that allow DOJ to prosecute corporate wrongdoing. The Whistleblower Rewards Program, which has not yet been detailed, will serve as a nationwide access point for individuals to report issues for potential monetary gain. The Pilot Program on Voluntary Self-Disclosures for Individuals, which is already in effect, serves as a means for corporate insiders to report on their own misconduct in exchange for leniency. Although both programs will originate under the Criminal Division, the DOJ has signaled that it may eventually apply these programs across the department. Companies are left to navigate how these new programs affect their corporate compliance programs, investigative functions, and self-disclosure analyses.

Continue Reading Navigating the DOJ’s New Whistleblower and Self-Disclosure Programs

In a 6-3 decision in SEC v. Jarkesy, the Supreme Court of the United States ruled that respondents to a U.S. Securities and Exchange Commission in-house enforcement action alleging securities fraud and seeking civil penalties have a right to a federal jury trial under the Seventh Amendment. The decision by Chief Justice John Roberts, which seemingly applies to federal agencies generally, represents yet another curtailment of the SEC’s authority.

On the heels of the 2018 Lucia decision and the 2023 Axon decision, the Court continues to chip away at the SEC’s enforcement authority. The decision also narrows the “public rights” exception that permits federal agencies to conduct in-house enforcement actions without a jury trial in certain circumstances.

Read the full Update here.

Perkins Coie partners Chelsea Curfman, Kevin Feldis, Allison Handy, and Michael House provided an in-depth review of key environmental, social, and governance and corporate social responsibility considerations for companies operating in the United States. These include the U.S. Securities and Exchange Commission’s new climate-related disclosure rules, California climate disclosure requirements, greenwashing and materiality considerations, and forced labor and supply chain due diligence (including the Uyghur Forced Labor Prevention Act). Participants walked away with valuable insights and practical takeaways that will help your teams navigate the complex and quickly evolving ESG and CSR landscape. 

Click here to learn more.

On May 22, 2024, the Department of Justice (“DOJ”) made a groundbreaking announcement that it declined prosecution of a biochemical company based on the company’s prompt voluntary self-disclosure of an employee’s export control violation and the company’s “exceptional” cooperation with DOJ’s National Security Division (“NSD”), the DOJ subcomponent responsible for investigating and prosecuting economic sanctions and export control violations (among other national security-related matters).

This is the first declination the NSD has announced since issuing its new corporate enforcement policy (“NSD Enforcement Policy”) in March 2024.  As discussed in our prior articles, DOJ announced a shift last year toward prioritizing investigation and enforcement against corporations for economic sanctions and export control violations, with Deputy Attorney General Lisa Monaco famously announcing that “sanctions are the new FCPA” and declaring that corporate enforcement in these areas is now a top DOJ priority.  This declination provides valuable insight into how the NSD will handle corporate enforcement of these matters and, importantly, signals a willingness to give meaningful credit to companies that self-disclose and cooperate in the investigation of violations in this area.

Continue Reading First-Ever Declination Under DOJ NatSec Corporate Enforcement Policy: DOJ Signals Willingness to Meaningfully Credit Voluntarily Self-Disclosing and Cooperative Company Involved in Export Control Violations

Perkins Coie Partner Jamie Schafer and Senior Counsel Jim Vivenzio provide an overview of key provisions of the Corporate Transparency Act, including the “beneficial ownership” reporting requirements, timeframes for filing and reporting logistics, and liability considerations for companies and senior officers. The presentation provides practical takeaways for in-house counsel along with discussion of common challenging scenarios and nuances as to application of the exemptions and identification of “beneficial owners” under the rule. Participants also received Perkins Coie’s CTA Quick Tips Sheet and How-To guides for obtaining identification numbers (FinCEN IDs) and filing Beneficial Ownership Information Reports under the CTA. 

Click here to learn more.

During a keynote speech on March 7, 2024 at the American Bar Association’s National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco announced that the Department of Justice (DOJ) will launch a pilot program offering financial incentives for individual whistleblowers to report corporate wrongdoing to the DOJ. According to DAG Monaco, the pilot program intends to use “carrots to wield larger sticks” on a full range of corporate misconduct and reinforces the DOJ’s commitment to implementing policies aimed at promoting cultures of corporate compliance. While DAG Monaco’s announcement invoked past images of law enforcement incentivizing reporters with “Wanted” posters, the anticipated pilot program will have significant ramifications on the future of companies’ existing internal compliance reporting channels.

Continue Reading Whistle While You Work: DOJ Announces Whistleblower Rewards Program

On January 10, 2024, the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) announced settlements with SAP SE (SAP), a German software company, to resolve allegations that SAP violated the U.S. Foreign Corrupt Practices Act (FCPA) by, among other things, making improper payments to government officials in South Africa and Indonesia to secure and retain software and services contracts with government entities. SAP agreed to pay the DOJ and the SEC over $220 million and entered into a three-year deferred prosecution agreement (DPA) with the DOJ. The U.S. regulators coordinated their resolutions with prosecutors in South Africa.

The resolutions provide insights into how the DOJ and the SEC are enforcing the FCPA and how corporations can reduce their FCPA liability.

Continue Reading Key Takeaways from SAP’s FCPA Resolutions with DOJ and SEC

The U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) has proposed new rules that would require anti-money laundering/countering the financing of terrorism (AML/CFT) programs for investment advisers.  The pdf is currently available, and will likely be replaced by the Federal Register version once published.  The final form of the rule, if adopted, remains to be determined, as does the compliance date.

Continue Reading The U.S. Department of Treasury, Financial Crimes Enforcement Network Proposes New and Expansive Anti-Money Laundering Rules For Investment Advisers

On November 20, 2023, a federal district court in the Northern District of California declined to grant summary judgment to the defendant in SEC v. Panuwat, the first-ever enforcement action by the U.S. Securities and Exchange Commission (the “SEC”) based on the novel insider trading theory of “shadow trading”—the use of one company’s inside information to trade in securities of another, similarly situated, but unrelated company.  The court previously declined to dismiss the case, signaling a potential expansion of insider trading enforcement.  The court’s summary judgment decision provides further guidance as to what may constitute impermissible shadow trading ahead of a trial scheduled for March 2024.

The case centers on Pfizer’s acquisition of Medivation, an oncology-focused biopharmaceutical company.  The defendant, Matthew Panuwat, worked at Medivation and allegedly learned the acquisition was imminent when Medivation’s CEO emailed Panuwat and other employees about the status of the sale process.  Seven minutes later, Panuwat purchased call options in another oncology-focused biopharmaceutical company, Incyte, which he later sold for a profit.  In its January 2022 decision denying Panuwat’s motion to dismiss, the court held that the SEC had adequately pleaded each of the required elements under the well-established “misappropriation theory” of insider trading: materiality, breach of duty, and scienter.  In its recent summary judgment decision, the court held that the SEC had shown genuine disputes of material fact concerning each of those elements and elaborated on materiality and breach of duty for purposes of the shadow trading theory.

Continue Reading Shadow Trading: With Trial Looming in SEC v. Panuwat, the SEC’s Latest Insider Trading Theory Takes Further Shape

On December 14, 2023, the U.S. Congress passed the Foreign Extortion Prevention Act (“FEPA”), one of the most important expansions of anti-corruption law in recent years and a key to expanding “demand-side” corruption enforcement. FEPA makes it unlawful for foreign officials to demand or accept bribes from U.S. persons or entities or from anyone if the foreign official is in the United States. FEPA operates in concert with its “supply-side” counterpart, the Foreign Corrupt Practices Act (“FCPA”), which prohibits paying bribes to foreign officials to assist in obtaining or retaining business.

It is highly likely that President Biden will soon sign FEPA into law, as the Biden administration has committed to working with “allies and partners on enacting legislation criminalizing the demand side of bribery, and enforcing new and existing laws” as part of its effort to make fighting corruption, including enhancing demand-side accountability, a priority.

Continue Reading U.S. Congress Passes FEPA To Address the “Demand-Side” of Bribery