Click Here to Receive the Latest Updates from the Blog

Enforcement Policy Developments

Subscribe to Enforcement Policy Developments

On October 31, 2022, Nathan Nephi Zito pleaded guilty in the US District Court for the District of Montana for his attempt to monopolize the markets for highway crack-sealing services in Montana and Wyoming. This marks the first win for the US Department of Justice (DOJ) in a criminal monopolization case in more than 40…

On Monday, Assistant Attorney General Jonathan Kanter announced significant updates to the DOJ Antitrust Division’s (“the Division”) Leniency Program. While speaking at the joint Federal Trade Commission / Division Enforcers Summit, AAG Kanter explained that with these changes the Division aimed to make the Leniency Program more accessible and straightforward, so that it can be…

As previously reported, on November 26, 2021, the Organisation for Economic Co-operation and Development (OECD) Council issued a Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (the “2021 Recommendation”).[1]  Our blog post earlier this week reviewed key aspects of the 2021 Recommendation that are directed towards government action.…

The Organisation for Economic Co-operation and Development (OECD) Council issued a Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (the “2021 Recommendation”) on November 26, 2021. As we reflect on 2021 in terms of US enforcement actions and policy, and the Biden Administration’s new anti-corruption strategy issued in December, some further assessment of this Recommendation seemed appropriate.

The Council’s last recommendation in this area was issued in 2009. Intervening developments and experience gave rise to the 2021 Recommendation, which was under consideration for some time prior to its issuance.[1]

The 2021 Recommendation cannot be characterized with a single headline. It is a multi-faceted document, comprised of 31 individual recommendations divided in to 16 sections. It is broad in scope, covering the waterfront of the OECD’s historical activity in the anti-corruption arena—not just through the Anti-Bribery Convention but through some of its “soft law” instruments—as well as some important issues not previously addressed by the OECD.…

Continue Reading Key Takeaways from the OECD 2021 Recommendation on Foreign Bribery

On October 28, 2021, Deputy Attorney General (DAG) Lisa Monaco outlined sweeping changes to the Department of Justice’s (DOJ) prosecution of corporate crime, signaling a tougher stance on white collar crimes than the previous administration. In a speech at the ABA’s National Institute on White Collar Crime, DAG Monaco announced key policy changes at DOJ,…

Steptoe’s recent quarterly Investigations & Enforcement webinar, held on May 12, included a discussion on Securities Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) enforcement trends. In this blog post we summarize the SEC and CFTC enforcement trends, including developments related to insider trading, Regulation FD, climate and ESG, whistleblowers and other trends. For those who missed the webinar, click here to access the recording.
…
Continue Reading Quarterly Investigations and Enforcement Webinar Recap – SEC and CFTC Enforcement

A court in the Southern District of New York recently issued a noteworthy opinion in addressing a discovery dispute concerning communications between a non-party witness at the center of the SEC’s allegations and her attorneys, to whom she provided false information expecting they would pass it along to the SEC. In denying defendants’ request to examine the witness’s attorneys on these issues, the court held that although certain communications were no longer privileged because the witness waived the privilege and the crime-fraud exception applied, it would limit the extent to which the defendant could examine the attorneys on those communications on the basis of the proportionality requirement under Rule 26. The opinion serves as an apt reminder to defense counsel seeking exculpatory information being withheld as privileged that Rule 26’s proportionality requirement may pose an additional hoop through which to jump, even where arguments regarding the crime-fraud exception and waiver are successful.
…
Continue Reading Court Invokes Rule 26 Proportionality Requirement as Added Barrier to Discovery in SEC Action

On Wednesday, November 18, 2020, head of the DOJ Antitrust Division, Makan Delrahim, signed a Memorandum of Understanding (MOU) between the DOJ and the Korean Prosecution Service (KPS) that supports increased cooperation between the two agencies in criminal antitrust enforcement and policy development. Delrahim was joined virtually by Prosecutor General Yoon from KPS for the signing ceremony.

In his signing ceremony remarks, Delrahim stated: “The Memorandum of Understanding is a shared recognition of the close ties between our agencies and our commitment to assisting one another in criminal cartel matters… [It] serves to memorialize and formalize what we have been implementing over the past few years.” He went on to highlight DOJ and KPS’s recent collaborations: shared enforcement training, cooperation and coordination on investigations, and exchange of information regarding policy initiatives.…

Continue Reading DOJ Antitrust Division, Korean Prosecution Service Sign MOU

In its 2019-2020 Annual Report (the Report), the UK’s sanctions office (the UK Office of Financial Sanctions Implementation (OFSI)) revealed that, between April 2019 and March 2020, it had received 140 voluntary disclosures of potential sanctions violations related to transactions worth a total of £982 million.  This represents a record number of reports, and an…

In what some are calling potentially “radical and seismic changes,” on 3 November 2020, the UK government announced that it had finished a three-year examination of the case for reform of the UK’s corporate criminal liability laws and tasked the Law Commission, an independent body designed to recommend legal reforms, to conduct further analysis and make recommendations for improvement. The Law Commission has said that it aims to publish its recommendations in late 2021.

With some limited exceptions (most notably, the section 7 offence under the UK Bribery Act 2010 and the facilitation of tax evasion offences under the UK Criminal Finances Act 2017), corporate criminal liability in the UK is based on the “identification principle.” This principle provides that a company can only be held criminally liable for financial crime offences if prosecutors can prove beyond reasonable doubt that the “directing mind and will” of the company committed or was aware of the misconduct.…

Continue Reading The UK (Slowly) Inches Toward Corporate Criminal Liability Reform