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

On January 29, 2021, Acting Attorney General Monty Wilkinson rescinded the Trump administration’s charging and sentencing policy that required federal prosecutors to hold as a “core principle” that they “charge and pursue the most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

Prosecutors have scored a win in their latest criminal spoofing trial, United States v. Vorley.  After three days of deliberation—during which time the jury repeatedly informed the court that it was deadlocked—the jury has convicted precious metals traders James Vorley and Cedric Chanu of committing wire fraud.  At the same time, the jury rejected the government’s allegations that the defendants had participated in a criminal conspiracy by allegedly coordinating spoofed trades with other market participants.

The inconsistent verdicts on wire fraud and conspiracy will almost certainly put the defendants on the path to an appeal before the Seventh Circuit Court of Appeals.  To convict Vorley and Chanu on the wire fraud counts, the government was required to prove beyond a reasonable doubt that they knowingly and intentionally participated in a scheme to defraud other market participants by making materially false representations. And at a high level, a conspiracy is an agreement between two or more persons to accomplish an unlawful purpose.  The jury’s split verdict suggests there could have been some confusion surrounding the intent requirements for the charges at issue.  This could further implicate the manner in which the government presented its evidence at trial and the instructions provided to jurors before they went into deliberations.
Continue Reading Jury Convicts on Wire Fraud Charges in Criminal Spoofing Case

The criminal spoofing trial in United States v. Vorley kicked off in the U.S. District Court for the Northern District of Illinois on September 14, 2020.  Less than 10 days later, on the first full day of deliberations, jurors sent a note to the court indicating they had reached an impasse, with two jurors holding out against a consensus on the verdict.  Following this development, the court denied the defendants’ request to declare a mistrial and instructed the jury to continue deliberations.

The jury’s difficulty in reaching a verdict on the complicated charges may foreshadow a similar outcome that occurred last year in the criminal trial of software developer Jitesh Thakkar.  In that case, Jitesh faced spoofing charges stemming from his company’s development of software that was later used by a London-based trader to spoof E-Mini S&P 500 futures contracts, which allegedly led to the “flash crash” of 2010.  The trial judge granted Thakkar’s mid-trial motion for a judgment of acquittal on a conspiracy charge based on the lack of evidence of any agreement between Thakkar and the London trader, but the judge allowed the spoofing counts to proceed to the jury.  The jury deadlocked 10-2 in favor of Thakkar on those charges and the government eventually dropped its case.
Continue Reading Latest Criminal Spoofing Trial Hampered by Obstacles

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

Perkins Coie’s award-winning White Collar & Investigations practice has teamed up with the ABA’s Global Anti-Corruption Committee to launch a podcast series as an extension of our White Collar Briefly blog.

Our first five episodes, linked below, feature fascinating, candid conversations with a variety of special guests, including:

  • American “book of the year” author, editor, screenplay writer and publisher Dave Eggers
  • Joel Esquenazi (defendant in the high-profile US v. Esquenazi FCPA case)
  • Molson Coors’ Global Ethics & Compliance Chief Caroline McMichen
  • Chicago-based U.S. District Judge Virginia Kendall
  • University of Colorado COO (and former GC) Patrick O’Rourke
  • Avanos Medical Deputy GC Ross Mansbach

Note that all episodes are available on Spotify, Google Podcast, and Apple Podcast. Additionally, you can visit our blog and subscribe to receive each new podcast, including the highly-anticipated Dave Eggers podcast, in your inbox.
Continue Reading Introducing the White Collar Briefly Podcast

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

As this blog has previously noted, the Coronavirus pandemic, like other crises before it, is likely to increase prosecutions for fraud, particularly under the Payment Protection Program (“PPP”) created by the federal government’s Coronavirus stimulus packages.  Two new prosecutions announced by the Department of Justice mark some of the first prosecutions under the PPP, and signal where and how the government will be looking for wrongdoing.
Continue Reading Prosecutions Related to Coronavirus Stimulus Begin

On April 14, 2020, the U.S. Department of Justice made a long-awaited move towards enhanced transparency into the corporate compliance monitorship selection process in launching a new webpage that lists the names of all independent compliance monitors for the Fraud Section’s thirteen active monitorships.  Seven of the active monitorships are associated with the FCPA Unit,

The U.S Department of Justice recently asked Congress to grant it emergency powers as the coronavirus outbreak begins to affect the timing of court proceedings and DOJ’s ability to conduct investigations. Perkins Coie attorneys explore DOJ’s request and the pandemic’s effects on the practice of white-collar criminal defense.

Click here to read more.