On June 6, 2023, the Public Company Accounting Oversight Board (“PCAOB”) proposed new auditing standards that would substantially broaden auditors’ responsibilities for considering an audit client’s noncompliance with laws and regulations, including fraud. If adopted, the proposal is likely to entangle auditors in complicated questions of legal and regulatory compliance.

PCAOB Release No. 2023-003 (the “Proposal”) heightens auditors’ responsibilities for detecting legal and regulatory noncompliance and alerting appropriate members of management and audit committees.… More

Key Takeaways:

• On June 1, 2023, in United States ex rel. Schutte v. SuperValu Inc., the U.S. Supreme Court unanimously held that defendants cannot avoid liability under the False Claims Act (FCA) by demonstrating that their conduct was consistent with an “objectively reasonable” interpretation of an ambiguous legal requirement.

• The Court’s decision clarifies that FCA liability turns on the subjective standard of whether a defendant,…

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Key Takeaways

• Companies in France should have detailed procedures covering investigations of wrongdoing and should also clearly lay out employees’ rights and obligations during such investigations.
• Investigative tools must be proportionate to the wrongdoing and should respect the privacy rights of employees.
• Companies in France should be engaged in an iterative process of updating policies regarding investigating misconduct.

On March 14,… More

Key Takeaways

• Courts are showing continued skepticism of broad use of federal fraud statutes.  Last week, two decisions repudiated creative government interpretations of wire fraud’s “property” requirement.
• In United States v. Ciminelli, the Supreme Court unanimously rejected the “right to control” theory, holding that only “traditional property interests” can support a federal wire fraud conviction, and the right to accurate information to make an informed economic decision is not such an interest.…

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Key Takeaways

• DOJ continues to focus on corporate self-disclosure and remediation, individual accountability, and international cooperation on corruption matters.
• DOJ is putting new emphasis on the use of compensation system incentives and the threat of clawbacks to encourage compliance efforts by individual employees
• International efforts to improve whistleblower protections and increase beneficial ownership transparency continued to gain momentum

U.S.… More

This is the eighth part in our 2023 series examining important trends in white collar law and investigations. Up next: anti-corruption.

Key Takeaways:

• As we predicted in our March 2022 post, 2022 was a year of heavy cryptocurrency enforcement, with a spike in actions by the U.S. Securities and Exchange Commission (the “SEC”) and the U.S. Commodity Futures Trading Commission (the “CFTC”) against companies and individuals involved in cryptocurrency.…

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This is the seventh part in our 2023 series examining important trends in white collar law and investigations. Up next: crypto enforcement.

2023 promises historic change for the Office of the Massachusetts Attorney General with Andrea Campbell sworn in as the new Attorney General earlier this year. Andrea Campbell ran a campaign on the idea that the Attorney General’s office is uniquely suited to help in uplifting the underrepresented and her first month in office has signaled she intends to prioritize those groups.… More

This is the sixth part in our 2023 series examining important trends in white collar law and investigations. Up next: MA attorney general.

According to the Securities & Exchange Commission, its proposed revisions to SEC regulations regarding climate change disclosures in May 2022 were intended to provide investors with consistent and reliable information regarding how climate change could impact their investment decisions. We have written previously about how these disclosure requirements affect investment advisers and about some of the key takeaways from climate-related disclosures under the new rule.… More

This is the fifth part in our 2023 series examining important trends in white collar law and investigations. Up next: ESG.

Takeaways:

• The SEC’s Division of Enforcement set record-highs in total money relief ordered and total civil penalties assessed in fiscal year 2022.
• The SEC will likely focus its enforcement efforts on securing the cryptocurrency industry’s compliance with the registration requirements of the Securities Act of 1933 and ensuring statements made by investment advisers and issuers concerning their ESG-compliance are both truthful and not misleading.…

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This is the fourth part in our 2023 series examining important trends in white collar law and investigations. Up next: SEC.

Key Takeaways

• With Republicans gaining control of the House, the party has plans to investigate both areas of focus from past Congresses, such as federal support for clean energy companies, and new areas, such as ESG practices.
• Certain areas of interest—especially China,…

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