On January 29, 2021, Acting Attorney General Monty Wilkinson rescinded the Trump administration’s charging and sentencing policy that required federal prosecutors to hold as a “core principle” that they “charge and pursue the most serious, readily provable offense.”  The Wilkinson memo, titled Interim Guidance on Prosecutorial Discretion, Charging, and Sentencing, “supersedes any conflicting Justice Manual provisions.”

Under the May 10, 2017 memo issued by former Attorney General Jeff Sessions, prosecutors were required to pursue the most serious charges or penalties.  To do otherwise required that they first get permission from their supervisors.  The Wilkinson memo reinstates the May 19, 2010 Department Policy on Charging and Sentencing issued by former Attorney General Eric Holder, which emphasized that prosecutors make an “individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code, and maximize the impact of Federal resources on crime.”

Acting Attorney General Wilkinson echoed this sentiment in the current policy memo: “The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated.”  He also noted in support of going back to the prior policy that “the reasoned exercise of prosecutorial discretion is critical to the fairness, effectiveness, and integrity of the criminal justice system.”

In essence, this change in policy will now afford defendants and their legal counsel more opportunities to seek less serious charges or the inclusion of lesser counts in any criminal indictment or information, and negotiate with the government to consider plea agreements and sentencing positions that do not include the de facto stiffest penalty.  The current Wilkinson memo comes on the heels of another recent policy shift rescinding the “zero tolerance” border policy for migrants crossing the U.S.-Mexico border illegally.  As the new administration’s appointments continue to be confirmed, it is likely that more guidance on charging and sentencing will be forthcoming.

A copy of the memo is available here:
Continue Reading DOJ Rescinds Trump Charging and Sentencing Policy

What does military policy have to do with the SEC? Tucked into the 1,480 page National Defense Authorization Act (NDAA) is a provision expanding the SEC’s disgorgement authority. The NDAA, specifying the budget and expenditures for the Department of Defense for fiscal year 2021 (H.R. 6395), was passed on December 11, 2020 by both chambers of Congress. Despite any obvious connection between the national defense and the SEC, the bill would amend the Securities Exchange Act of 1934 to give the SEC authority to seek disgorgement in enforcement actions brought in federal court.  These amendments would also increase the statute of limitations for disgorgement from five to ten years.
Continue Reading Congress Sneaks in Expansion of SEC Disgorgement Authority in Annual Defense Bill

On August 14, 2020, the U.S. Department of Justice (“DOJ”) issued an opinion letter (cataloged as FCPA Opinion No. 20-01) stating that it did not intend to take enforcement action under the Foreign Corrupt Practices Act (“FCPA”) against a U.S.-based investment advisor planning to pay something akin to a “finder’s fee” to a foreign

On July 28, 2020, the U.S. Securities and Exchange Commission (SEC) accused six individuals and their companies with securities fraud in connection with two cannabis-related businesses in California that raised $25 million in an unregistered securities offering.  The SEC’s complaint was filed in the Central District of California and seeks permanent injunctions, disgorgement of ill-gotten

On June 22, 2020, the U.S. Supreme Court decided in Liu v. SEC that in an SEC civil proceeding a disgorgement award that does not exceed a wrongdoer’s profit and is awarded for victims is equitable relief permissible under the applicable statute. The opinion answers an important question left open by the Court in Kokesh v. SEC that disgorgement operates as a “penalty,” rendering claims for disgorgement subject to the five-year statute of limitations. See Supreme Court Reigns in SEC’s Disgorgement Power. Liu closes the door on speculation that the Court was poised to hold that the SEC did not have authority to seek disgorgement.
Continue Reading SEC Can Recover Disgorgement, With Limits

The U.S. Department of Justice has updated its guidance on corporate compliance programs. In its update, the DOJ offers practitioners further insight on how the DOJ evaluates compliance programs by refining key terms and providing more context. The DOJ has made clear that compliance should not be thought of as a static exercise. Instead, any

In an unprecedented move on June 14, 2017, Michigan’s Attorney General, Bill Schuette, charged five state officials with involuntary manslaughter, alleging that each had failed to address the city of Flint’s contaminated water issue that they knew was connected to the poisoning deaths of 12 individuals.  One of the charged officials, Michigan Department of

This week the Supreme Court trimmed the SEC’s power to seek disgorgement of unlawful gains by securities law violators by unanimously holding in Kokesh v. Securities and Exchange Commission that SEC disgorgement constitutes a penalty and such claims must be brought within five years of their accrual. This decision resolved the circuit split described in a previous post.

SEC Does Not Have Limitless Power to Impose Penalties

Kokesh involved the SEC’s effort to collect $34.9 million in disgorgement for conduct going back as far as 1995, and an additional $18.1 million in prejudgment interest. The Court noted that statutes of limitations are “vital to the welfare of society” and set a fixed date when exposure to Government enforcement efforts end.
Continue Reading Supreme Court Reins In SEC’s Disgorgement Power

Marking a rare loss for the Securities and Exchange Commission (SEC) in its favored administrative forum, SEC Administrative Law Judge (ALJ) James E. Grimes ruled against the agency on April 18, 2017, in In the Matter of Charles L. Hill, Jr.  Ironically, the SEC fought hard to keep the case in the administrative forum, after Respondent Hill filed an action in federal district court claiming the SEC’s “home court” forum was unconstitutional.  The district court enjoined the SEC, but the 11th Circuit vacated the district court’s order, and the case proceeded on the SEC’s administrative court.  There, the ALJ found the SEC’s circumstantial evidence not only to be insufficient, but fatally undermined by the credibility of witnesses who offered testimony favorable to Hill.
Continue Reading SEC Suffers Rare Loss in Insider Trading Case Before Agency Judge

On April 18, 2017, the U.S. Supreme Court heard oral argument in Kokesh v. Securities and Exchange Commissiona case which could determine whether the Securities and Exchange Commission’s power to disgorge ill-gotten gains is subject to a statute of limitations.  The SEC currently uses disgorgement as a tool to take in billions of dollars in payments annually from defendants in its enforcement actions. 
Continue Reading SEC Disgorgement Power – Time Running Out?