During a speech last week to a group of white collar defense attorneys, John Carlin, a senior official at the Department of Justice (DOJ) confirmed what many in the white collar and corporate compliance space have been preparing for since January: the DOJ is devoting a “surge” of resources to ramp up its white collar enforcement efforts. According to a report by The Wall Street Journal*, Carlin listed several agency actions that are either in the works or already underway:

  • Embedding Federal Bureau of Investigation agents within the DOJ, including a new “squad” of dedicated agents in the agency’s fraud section, to focus on investigations into foreign bribery, market manipulation, and healthcare fraud cases;
  • Enhancing efforts to incentivize companies to develop compliance programs to preemptively prevent legal violations by employees;
  • Developing new tools, including the use of data analytics, to identify corporate wrongdoing (and encouraging corporations to do the same); and
  • More strictly enforcing the terms of deferred- and non-prosecution agreements.

Although the increased focus on enforcement should not come as a surprise to careful (or even casual) observers, the DOJ’s emphasis on preemptive compliance suggests the agency will be receptive to organizations who are proactively improving their compliance practices.

Companies should consider reviewing their compliance policies and implementing certain best practices to minimize the risk of being swept up in any future enforcement pushes:

Continue Reading Preparing for DOJ’s White Collar Enforcement “Surge”: Five Compliance Practices for Companies to Shore Up Now

The SEC’s Division of Corporate Finance has sent a first wave of comment letters to registrants based on its recent review of climate disclosures included in their 10-Ks. View a sample comment letter and read insights on Corp Fin’s ESG priorities from Allison Handy, co-chair of Perkins Coie’s Environmental, Social, and Governance (ESG) advisory team, on the Public Chatter blog.

The Sixth Amendment’s Confrontation Clause provides criminal defendants with the right to “confront”—i.e., cross-examine—the witnesses against them.  But can a criminal defendant “open the door” to the admission of evidence otherwise barred by the Confrontation Clause?  The U.S. Supreme Court will address that question in Hemphill v. New York, scheduled for oral argument next month.  The outcome of that case may significantly expand when prosecutors at all levels, from local district attorneys’ offices to DOJ Main Justice, can overcome defendants’ right to exclude absent-witness testimony.

Darrell Hemphill was convicted of murder in New York after another man was unsuccessfully prosecuted for the same crime.  Hemphill argued at trial that the first suspect committed the crime.  That was enough for the trial court, and ultimately New York’s highest court, to determine he had opened the door for the prosecution to introduce evidence rebutting Hemphill’s claim—specifically, an out-of-court statement by the first man that he did not possess the type of gun responsible for the murder.

Federal and state rules of evidence like New York’s typically allow a party to introduce rebuttal testimony like this—even if it could not do so originally—if the opposing party puts the issue into play.  But Hemphill argues that the Confrontation Clause is a separate safeguard that cannot be overcome simply by opening the door.  Under Hemphill’s theory, the first man’s statement should not have been admitted, even after Hemphill implicated him for the crime, unless the man could also be cross-examined at trial. Continue Reading Supreme Court to Weigh Protections Under Confrontation Clause

On July 19, 2021, CME Group Inc. (the CME), the parent company of derivatives exchanges including the Chicago Mercantile Exchange and New York Mercantile Exchange, issued a Market Regulation Advisory Notice amending prior guidance on prohibited disruptive trading practices. The CME’s amended Advisory Notice RA2107-5 (Advisory Notice), took effect on August 2, 2021, and impacts the types of trading behavior for which individual traders and their employers may be held liable.

The Advisory Notice underscores the CME’s expectations in two key areas: market participants’ internal controls for risk management; and the integrity of messaging data that traders submit to the CME. The Advisory Notice sets forth scenarios under which compliance failures in either of these two areas might constitute a disruptive trading practice. Of course, violations of CME’s disruptive trading practice rules can result in significant fines, a bar from exchange access, and follow on enforcement actions from other market regulators. Thus, it is significant that the Advisory Notice takes aim at internal controls that are not typically associated with market manipulation but can nonetheless result in regulatory enforcement.

Click here to read the full article on Bloomberg Law.

Perkins Coie LLP White Collar & Investigations partners Lee Richards III and David Massey are joined by Eric Grossman, the Chief Legal Officer of Morgan Stanley, for an in-depth discussion of hot topics in the financial services enforcement area, including big banks’ readiness for another financial crisis; Environmental, Social, and Governance (ESG) investing; the “gamification” of trading; SPACs; corporate criminal investigations and resolutions; and the influence of politics on law enforcement. Mr. Grossman also reflects on the importance of diversity and inclusion in the legal profession.

Listen to “Discussion with Eric F. Grossman, Chief Legal Officer, Morgan Stanley” on Spreaker.

 

In this post, Perkins Coie attorneys discuss a U.S. Federal Trade Commission settlement regarding its most recent law enforcement action to monitor the marketplace for misleading cannabidiol product claims. The action targets Kushly Industries LLC and the company’s sole officer for allegedly making false or unsupported health benefit claims about Kushly’s CBD product.

Read the full post at Perkins Coie’s Cannabis Legal Highlights blog at FTC Continues Crackdown on Unsupported CBD Marketing.

In recognition of Mental Health Awareness Month, we are highlighting the use and application of trauma-informed investigation techniques during internal investigations.

In this episode, Perkins Coie White Collar & Investigations partners Gina LaMonica and Caryn Trombino are joined by Dr. Brenda Ingram, EdD, LCSW, of the University of Southern California, to discuss conducting trauma-informed investigations at higher education institutions and the increasing use of these techniques during internal investigations in corporate settings.

Dr. Ingram, who serves as the Director of Relationship and Sexual Violence Prevention and Services at USC Student Health, shares her experience in conducting survivor-centered investigations in cases of sexual and racial trauma and other instances of power-based harm. She also reflects on how corporate employers can deploy trauma-informed investigative techniques and foster a work environment that addresses power imbalances that can lead to employee trauma.

Listen to “Trauma-Informed Investigation Techniques in the Workplace – Episode 28” on Spreaker.

In this post, Perkins Coie attorneys explore the statutory ambiguities that are prompting some in the hemp industry to “lawfully” sell hemp-derived Delta-8 THC. Entrepreneurs have swiftly responded to the current loophole and a Delta-8 market has exploded.

Read the full post at Perkins Coie’s Cannabis Legal Highlights blog at Delta-8: A New Low in Highs | Cannabis Legal Highlights.

Perkins Coie LLP White Collar & Investigations partners Lee Richards and Margaret Meyers are joined by the Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit to discuss litigating in the federal district and appellate courts. Informed by his 26 years of federal experience, Judge Chin shares some best practices for attorneys appearing in the district and appellate courts, describes his experience sentencing white-collar criminal defendants under the post-Booker guidelines, and reflects on the importance of diversity in the legal profession. Continue Reading Discussion with the Honorable Denny Chin

During the investigation process, survivor-centered, trauma-informed techniques are used to keep investigation participants empowered and safe—physically, emotionally, and economically. Arising from sexual abuse and domestic violence contexts, these techniques are now being recognized for their usefulness and success in more traditional corporate settings. Continue Reading Will Survivor-Centered, Trauma-Informed Techniques Revolutionize Workplace Investigations?