The Justice Department is encouraging companies to voluntarily disclose criminal violations — “Come in and confess” and DOJ offers promises of a declination. But even a declination comes with a requirement — the company has to pay disgorgement. DOJ has done everything it can do to incentivize voluntary disclosures — many companies are balancing the pros and cons and often deciding NOT to disclose. Such...
In an important case decided in June 2020, the Supreme Court, in Liu et al v. SEC, addressed the SEC’s ability to seek “equitable relief” in civil proceedings. In 2017, the Supreme Court, in Kokesh v. SEC, ruled that a disgorgement order in an SEC action constitutes a “penalty” for purposes of application of the five-year statute of limitations. The Supreme Court left open the...
DOJ’s FCPA Unit knows what they are doing. In the immediate weeks after the release of the FCPA Pilot Program, DOJ publicly released two declination letters for Akamai Technologies and Nortek, Inc. and the SEC announced disgorgement settlements of $671 thousand and $321 thousand, respectively. These two actions, however, will not solve DOJ’s bigger problem – the FCPA Pilot Program needed to offer a bigger...
