Insights

On October 24, 2023, Gurbir S. Grewal, Director of the U.S. Securities and Exchange Commission’s (“SEC”) Division of Enforcement, provided a preview of the agency’s enforcement outlook against Chief Compliance Officers (“CCO”) in the upcoming year.  His remarks highlight the continued importance of compliance programs (and continued focus on the part of regulators on those programs), but also make clear that SEC enforcement actions targeting behavior on the part of CCOs will continue to be rare.

On October 4, 2023, Deputy Attorney General (DAG) Lisa O. Monaco announced the Department of Justice’s (DOJ) new safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions (Safe Harbor Policy).  Following other announcements from DOJ over the past two years aimed at encouraging voluntary self-disclosures, the Safe Harbor Policy was adopted because DOJ does not want to “discourage companies with effective compliance programs from lawfully acquiring companies with ineffective compliance programs.”  Through this new policy, DOJ is aiming to incentivize acquirers to timely disclose misconduct discovered during the M&A process (including pre-closing diligence and post-closing integration).

On September 11, 2023, the U.S. Department of Justice (“DOJ”)’s National Security Division (“NSD”) announced the appointment of its first-ever Chief Counsel and Deputy Chief Counsel for Corporate Enforcement, fulfilling a commitment made by DOJ in March 2023. Both appointees are prosecutors with significant experience prosecuting large-scale, international corporate crimes, commensurate with DOJ’s recent emphasis on holding accountable corporate actors that violate national security laws, including sanctions and export controls.

On Wednesday the SEC adopted amendments to the “Names Rule” that are meant to promote “truth in advertising” according to SEC Chair Gary Gensler. Specifically, the amendments require funds with names that reference a thematic investment focus (such as incorporation of Environmental, Social, and Governance (“ESG”) factors), or that suggest an investment portfolio with certain characteristics (such as “growth” or “value”) to invest at least 80% of the value of their assets in those named focus areas.

On July 26, 2023, the U.S. Department of Justice (“DOJ”), the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued a Tri-Seal Compliance Note outlining their respective voluntary self-disclosure (“VSD”) procedures for potential violations of U.S. export controls and sanctions.  This announcement highlights the agencies’ focus on compliance with export controls, sanctions, and other U.S. national security laws, and reminds industry of the incentives for voluntarily disclosing potential violations, including mitigation of civil and criminal penalties. 

On July 26, 2023, the SEC finalized long-awaited disclosure rules (the “Final Rules”) regarding cybersecurity risk management, strategy, governance, and incidents by public companies that are subject to the reporting requirements of the Securities Exchange Act of 1934.  While the end results are substantially similar to rules proposed by the SEC in March 2022, there are some key distinctions. 

On July 21, 2023, the Biden administration announced that seven companies leading the development of artificial intelligence (AI) -- Amazon, Anthropic, Google, Inflection, Meta, Microsoft, and OpenAI -- have made voluntary commitments, which the companies agreed to undertake immediately, to help move towards safe, secure, and transparent development of AI technology. The goal of the voluntary commitments, or the “AI Agreement” as it is informally dubbed, is to establish a set of standards that promote the principles of safety, security, and trust deemed fundamental to the future of AI.

A New Jersey federal judge has denied two executives’ efforts to suppress statements made during an interview conducted as part of an internal investigation of alleged bribe payments in India even though their employer was hoping to take advantage of a U.S. Department of Justice FCPA Pilot Program.

On May 5, 2023, the Securities and Exchange Commission (“SEC” or “Commission”) announced a record-setting whistleblower award of nearly $279 million.  This award more than doubles the SEC’s previous $114 million record-setter, issued in October 2020.

On Friday, the Department of Justice released an updated version of its Evaluation of Corporate Compliance Programs (“ECCP”) guidance—the latest in a series of updates to the administration’s approach to corporate criminal resolutions, and the first substantive update to the ECCP guidance since June 2020. The update marks the latest pronouncement in the Department’s ongoing focus on corporate compliance programs, highlights a continued emphasis on individual accountability, and in particular, fleshes out its expectations in two key areas—compliance related compensation and consequences, and management of messaging apps—providing corporate leaders and compliance teams with additional detail to guide programmatic and policy decisions.

On February 22, 2023, United States Attorneys for the Southern and Eastern District of New York announced a new, nationwide United States Attorneys’ Offices Voluntary Self-Disclosure (“VSD”) Policy. The policy applies to all United States Attorney’s Offices and is effective immediately. The implementation of the policy follows Deputy Attorney General Monaco’s September 15, 2022 memorandum instructing each component of the Department of Justice that prosecutes corporate crime to review, or draft and publicly share its policies on corporate voluntary self-disclosure and Assistant Attorney General Kenneth A. Polite, Jr’s remarks on revisions to the Criminal Division’s Corporate Enforcement Policy. The VSD policy incentivizes companies to voluntarily disclose misconduct and offers significant benefits for timely disclosure.

On January 17, 2023, Kenneth A. Polite, Jr, Assistant Attorney General for the Department of Justice (DOJ)’s Criminal Division, delivered a speech at Georgetown Law School announcing the first significant changes to the Criminal Division’s Corporate Enforcement Policy (“CEP”) since 2017. The changes answer the call of Deputy Attorney General Lisa Monaco and provide companies with new and concrete incentives to self-disclose wrongdoing and meaningfully cooperate with DOJ investigations. Most notably, DOJ is offering both a new path to avoid prosecution, and, in cases where a criminal resolution is warranted, the opportunity to obtain as much as 75% off the low end of the U.S. Sentencing Guidelines fine range. The revisions also include incentives for companies that do not voluntarily self-disclose, but still fully cooperate and remediate—even these companies can obtain a 50% reduction in fines.

Crowell & Moring LLP is pleased to release its "2015 Antitrust M&A Year in Review." Following a record-breaking year for volume of transactions, this publication provides insight and analysis into developments and trends in global antitrust enforcement of mergers and acquisitions. We examine the antitrust agencies' increasing focus on protecting innovation and emerging forms of competition, requiring broader remedies and more competitive divestiture buyers, and highly scrutinizing transactions in markets where prior consolidation was not challenged. We also look at the agencies' increasing willingness to challenge transactions through litigation, and their relatively successful recent track record.

Saudi Arabia's current Companies Regulations (the Current Regulations), which were enacted in 1385 H / 1965, are finally set to be replaced, now that the Saudi Arabian Council of Ministers has approved the Companies Regulations of 1437 H / 2015 (the New Regulations). The New Regulations will come into effect 150 days after they are published in the Saudi Arabian Official Gazette.

New York State Attorney General Eric Schneiderman's recent announcement that his office will be using the powerful and expansive provisions of New York State's securities statute, known as the “Martin Act,” to investigate Exxon Mobil's public statements and internal research concerning climate has put an exclamation point on a chorus of calls by congressmen, senators and presidential candidates for investigation of Exxon Mobil's private knowledge and public statements dating back 30 years. It might also open the door to broader scrutiny under federal securities laws.

On July 22, 2015, the IRS proposed regulations that, if and when finalized, will adversely affect many fee waiver and similar arrangements traditionally used by private equity funds to convert fee-based ordinary income to tax-preferred capital gains. The IRS has taken a dim view of such arrangements for several years, and the proposed regulations further crystallize the IRS' position. 

Despite the drunk droning accident that resulted in a crash landing on the White House lawn, Nevada—not the District of Columbia—appears to be one of the first jurisdictions to pass a law prohibiting operation of a recreational drone (aka an unmanned aircraft system or UAS) while under the influence of alcohol.  But plenty of guidelines with regard to the safe and secure operation of recreational drones have been in place for some time now.

Since the economic downturn in 2008, the legal market has been in a constant state of change. Companies are demanding budget predictability, shared risk and reward, improved efficiency, more transparency, and a new way to define value, and law firms have rushed to respond. Firms cannot rely on the billable hour as they once did. This development has led to the rise of Pricing Departments whose job it is to manage value-based billing arrangements, profitability, and legal project management. Law firms and in-house counsel need to understand each type of alternative fee arrangement, its strengths and weaknesses, how to accurately scope and budget an engagement, and how to manage it once it has begun.

On May 13, 2015, Marc Wyatt, Acting Director, SEC Office of Compliance Inspections and Examinations (OCIE), delivered an important speech that highlighted legal and compliance topics for investment fund managers.

On July 22, 2014, the Saudi Arabian Capital Market Authority (CMA) announced that qualified foreign financial institutions (QFIs) would be permitted to buy and sell stocks listed on the Saudi stock market in accordance with rules to be adopted by the CMA. The CMA subsequently released its Draft Rules for Qualified Foreign Financial Institutions' Investment in Listed Shares (the Draft Rules) and solicited opinions and suggestions from investors and other interested parties on the Draft Rules.