SEC Continues to Seek Disgorgement Despite a Looming Supreme Court Case that Could Invalidate the Practice

On November 6, the U.S. Securities and Exchange Commission filed a civil complaint, captioned SEC v. Pierre, against a New York investment advisor for allegedly operating a multimillion-dollar Ponzi scheme. The SEC alleges that the defendant promised investors unreasonably high rates of return (20 percent every 60 days) and that he paid those investors, in the face of significant losses, with money from new investors.… More

Supreme Court to Decide Whether SEC Can Disgorge

The Supreme Court has granted certiorari to decide whether the U.S. Securities and Exchange Commission can seek and obtain disgorgement from a court as a remedy for a securities violation. A decision that the SEC does not have disgorgement authority would have significant consequences for litigants.

In SEC v. Liu, a California District Court held that the defendants had defrauded Chinese individuals seeking to invest in a cancer treatment center to obtain visas under the EB-5 Immigrant Investor Program.… More

No Good Deed Goes Unpunished: DOJ’s Pursuit of Alleged Drug Co-Pay Kickbacks Extends to the Charities Themselves

Back in May, we wrote about substantial settlements totaling $125 million to resolve Department of Justice (DOJ) allegations that money donated by Astellas Pharma US, Inc. and Amgen Inc. to drug co-pay charities constituted illegal kickbacks under the False Claims Act (FCA).  At the time, we noted that the settlements were the seventh and eighth such resolutions in the District of Massachusetts since December 2017,… More

Biotech CEO Convicted of Securities Fraud and Obstructing SEC Investigation

The chief executive of a Boston-based biotech company, Frank Reynolds, was convicted of defrauding investors and obstructing an SEC investigation. Reynolds founded the biopharma startup PixarBio Corp. in 2013 and took the company public in 2016. By the next year PixarBio was in a tailspin and an SEC probe was opened. Reynolds is now facing possible jail time and millions in fines after he stoked the brief meteoric rise of PixarBio with promises of ground breaking inventions,… More

Supreme Court to Decide Constitutionality of the CFPB

The Supreme Court has granted certiorari to hear a challenge to the constitutionality of the Consumer Financial Protection Bureau (CFPB).  While the CFPB won in the Ninth Circuit, the agency has since changed its mind and now agrees that its structure, which makes the single director of an independent agency removable only for cause, is unconstitutional, and also asked the Court to grant certiorari. … More

Supreme Court Set to Re-Evaluate Pleading Standards for Claims Alleging Breach of Fiduciary Duty of Prudence Under ERISA

On November 6, 2019, the Supreme Court will hear oral argument for Retirement Plans Committee of IBM v. Jander to expand on its “more harm than good” pleading standard articulated in Fifth Third Bancorp v. Dudenhoeffer.  Both Dudenhoeffer and Jander deal with employee stock ownership plans (ESOPs), retirement plans which primarily invest in the stock of the company that employs the plan participants. … More

Trump Signs Executive Orders To Limit Use of Informal Guidance

On Wednesday, President Donald Trump signed two executive orders (titled Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication and Promoting the Rule of Law Through Improved Agency Guidance Documents) that require agencies to publish all informal guidance online and to limit its use in enforcement actions. In his Oval Office signing ceremony,… More

Watch: Cybersecurity Regulation and Enforcement

As data breaches are seemingly reported on a daily basis, cybersecurity has emerged as a top enforcement priority for federal and state regulators and a key concern for companies of all sizes in a diverse range of industries. For example, compliance with federal cybersecurity regulations is required by nearly every government contract and the New York Division of Financial Services adopted a vast set of regulations that is applicable to all entities operating under NYDFS licensure. In short, ensuring that a company has effective cybersecurity policies and procedures in place is essential to both protecting customer information and avoiding unwanted attention from federal and state regulators.

Foley Hoag presents a webinar offering guidance for in-house counsel, compliance officers and other professionals on the cybersecurity regulatory and enforcement landscape.

Speakers

DOJ Issues Guidance on Corporate Poverty Claims

This is a follow-up to our September 13, 2019 post discussing the DOJ guidance on corporate claims of inability to pay.

On Tuesday, October 8, 2019, the Department of Justice provided guidance on how its prosecutors should evaluate claims of corporate poverty.  This comes on the heels of Deputy Assistant Attorney General Matthew Miner’s comments last month suggesting that further guidance on corporate poverty claims was forthcoming. … More

Challenge to Attorneys’ Fees in False Claims Act Cases

Thanks to inexact language in a settlement agreement, a for-profit hospital chain can challenge whistleblowers’ eligibility for attorneys’ fees under the False Claims Act (“FCA”).  The single sentence that spawned nearly 5 years of litigation was: “All Parties agree that nothing in this Paragraph or this Agreement shall be construed in any way to release, waive or otherwise affect the ability of CHS to challenge or object to [whistleblower’s] claims for attorneys’ fees,… More