This is the first in our 2023 series examining important trends in white collar law and investigations. Up next: criminal tax enforcement.

The False Claims Act (or “FCA”) continued to drive significant enforcement activity in 2022, especially, but not exclusively, in the healthcare sector.  In 2023, we expect the government and whistleblowers to continue to prosecute and likely resolve False Claims Act matters in large numbers. … More

Key Takeaways:

• A faculty member at a research university was convicted of making false statements to the federal government, a felony, for failing to disclose an outside engagement with a Chinese institution on his university’s conflict of interest disclosure form.
• When faced with conflicts of interest disclosure obligations, university faculty with federal funding for research should disclose all engagements that may raise questions of conflict of commitment or interest.…

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Key Takeaways:

• DOJ revised its Corporate Enforcement Policy (CEP) to further incentivize robust voluntary disclosures by corporations when they discover misconduct.
• Even when aggravating circumstances would otherwise warrant criminal resolution, prosecutors will now have discretion to decline to prosecute when a company provides extraordinary cooperation.
• Recognizing the unique opportunity to encourage disclosure and remediation in M&A transactions, DOJ took the opportunity to highlight particular benefits available in that context.…

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It has been a tumultuous year for the Department of Justice (“DOJ”) and its recent no-poach criminal prosecution strategy.  No-poach agreements, which are arrangements between companies that place restrictions on the hiring of each other’s employees, have long been viewed as anticompetitive, as they have the potential to restrict employee mobility and wages in competitive markets. Historically, anyone challenging these agreements—including workers and the DOJ alike—did so through civil claims under the Sherman Act.… More

Earlier this week, the Southern District of New York dismissed bribery and honest services wire fraud charges brought against New York’s former lieutenant governor, Brian Benjamin, based upon the Indictment’s failure to allege an explicit quid pro quo arrangement with respect to campaign contributions, instead of an agreement by implication.   The decision marks the first time that a New York federal court has held that an express agreement is required before an individual can be convicted of bribery and wire fraud in a campaign contribution case,… More

On October 28, 2021, Deputy Attorney General Lisa Monaco released a memo setting out “Initial Revisions to Corporate Criminal Enforcement Policies.” The memo indicated that the Department of Justice would place greater emphasis on a corporation’s “history of misconduct” in reaching determinations about whether to criminally charge a corporation. Noting that past misconduct is potentially indicative of the strength of internal controls to prevent criminal activity,… More

A year ago, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) heralded data analytics in announcing parallel insider trading actions against a senior executive at a pharmaceutical company (Viatris Inc.), formerly known as Mylan N.V. (“Mylan”). The SEC asserted that “efforts to conceal the scheme through secure messaging apps and foreign cash payments were unavailing, as this case highlights the agency’s ability to use sophisticated data analysis to detect suspicious trading patterns and identify the traders behind them.”

Last year’s case was against the alleged tippee,… More

Google will spend the next three years with an independent compliance monitor scrutinizing its process for responding to warrants and other government data requests. This and other requirements are part of a settlement agreement with Google, announced by the Department of Justice (“DOJ”) on October 25, 2022, to resolve a four-year long dispute over lost data responsive to a DOJ search warrant.

The dispute dates back to a warrant the DOJ obtained in 2016 in the U.S.… More

A recent ruling from a federal district judge in Texas has called into question the finality of deferred prosecution agreements.  Deferred prosecution agreements are negotiated and entered into by the government and criminal defendants (typically corporations) and allow the defendant to avoid a criminal conviction.  In exchange, defendants are often required to accept responsibility for charges, pay fines, cooperate with ongoing investigations, and engage in ongoing compliance processes,… More

Text messaging is convenient.  It is an informal and instant mode of communication now available through numerous apps, which allow an individual to use their synced phone, tablet, and computer to quickly fire off messages.  It’s no wonder that text messaging has extended beyond the realm of friends and family, taking hold in our daily business communications.

However, intra-company text messages and other off-channel business communications have drawn scrutiny from the federal government because they undermine a company’s ability to maintain effective recordkeeping.… More