The SEC continues to plug away at aggressive FCPA enforcement. This year, at least so far, the SEC has had a very successful year. The Hitachi case is a very interesting enforcement action for several major reasons.  From a general perspective, the SEC’s decision to file the case in US District Court for the District of Columbia represents an important about face – instead of...

Jacqui Merrill, an Associate at The Volkov Law Group, joins us with a posting on the SEC’s request for increased access to emails. Jacqui’s profile is here, and she can be reached at [email protected]. In a Senate Judiciary Committee meeting held on September 16, 2015, Securities and Exchange Commission Enforcement Director Andrew Ceresney expressed his frustration over the entity’s lack of access to stored emails....

I am convinced that the law eventually reaches the “right” solution. There may be disastrous detours along the way, but in the end the law will adapt to reach the right result. Of course, our history is replete with instances of controversial, and ultimately embarrassing, court decisions (e.g. Plessy v. Ferguson). Nor do I mean to suggest that the SEC’s reliance on administrative hearings for...

Today I begin a three-part series on reputational damage. The first part tries to define the term “reputational damage;” the second part focuses on managing threats to a company’s reputation; and the final posting proposes creation of a senior risk manager in a corporate leadership team. If you ask CEOs and board members about the threats to a company resulting from a DOJ enforcement action,...

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Change does not occur overnight. The SEC, as much as any other government agency, has touted its hiring of former prosecutors and use of aggressive investigation tactics. I always took those statements with a grain of salt – after all, the SEC is enforcing civil laws and regulations. A prosecutor can only do so much in the civil enforcement arena. In a recent Wall Street...

The Supreme Court is very likely to enter into the fray over the Second Circuit’s controversial Newman decision concerning insider-trading liability. The government has filed a petition for certiorari, and the stakes are high. Insider trading liability for unauthorized disclosures to tip recipients (‘tipees”) flows from the common sense notion that an insider cannot engage, directly or indirectly, in insider trading by personally benefitting from...

Many companies, depending on the industry, have implemented anti-corruption compliance programs. Some of the programs meet the standard for an “effective” anti-corruption compliance program. There is a vast difference between getting a program implemented on paper and an “effective” anti-corruption compliance program. After all, when you boil it down, anti-corruption compliance is not as difficult a task as everyone thinks. Some programs are immature, some...

Last week, the SEC announced a settlement of an FCPA enforcement action for $12 million against Mead Johnson Nutrition for payment of bribes in China to health care professionals at state-owned hospitals. Mead Johnson’s illegal payments were intended to increase referrals by Chinese physicians and healthcare officials of Mead Johnson products, and obtain access to marketing and personal information about expectant and recent mothers. Over...

Lauren Connell, Managing Associate  at the Volkov Law Group, joins us again for a guest post.  Lauren’s profile is here and she can be reached at [email protected]. The “I didn’t know” defense is a tough one to sustain. Maybe you didn’t “know,” but should you have known? Were all the signs there but you looked the other way? Should you have asked more questions?  Is...