Recent Posts
Follow Us
twittergoogle_pluslinkedinrssyoutube
The Legal Stuff
Government Enforcement Exposed - "The GEE"
0 0

30 Sep 2014 IS A NON-UNITED STATES CITIZEN WHO REFUSES TO LEAVE HIS HOME COUNTRY TO FACE FCPA CHARGES A FUGITIVE FROM JUSTICE?

South Korean citizen Han Young Kim has petitioned the United States Supreme Court for certiorari to resolve a circuit split regarding whether a non-United States citizen who refuses to come to the United States to face Foreign Corrupt Practices Act charges is a fugitive from justice.   Kim argues that because he lives in South Korea and did not flee the United States to South Korea, he should not be considered a fugitive.  The government’s position that Kim is a fugitive because he refuses to submit to extradition has kept Kim from having an opportunity to seek judicial review of his indictment or from attempting to reach a settlement, since the government will not negotiate with fugitives.   The Ninth Circuit Court of Appeals denied…

READ MORE
0 0

23 Sep 2014 DODD-FRANK WHISTLEBLOWER ACTIVITY GETTING EVEN HOTTER

  Just two weeks ago, we discussed the increased activity in civil litigation and SEC enforcement actions related to Dodd-Frank whistleblowers. When we suggested that readers check back soon for further developments, we did not imagine that the SEC would provide us with fodder for another update quite so quickly. However, on September 22, the SEC turned up the heat even more by announcing its largest ever whistleblower award – a whopping $30 million award. This award more than doubles the previous largest award of $14 million, announced last October.   While the SEC’s awards are confidential, given that awards range from 10 percent to 30 percent of the sanction imposed in an SEC enforcement action when that sanction exceeds $1 million, the underlying action…

READ MORE
0 0

19 Sep 2014 NASAA: State Securities Regulators’ Views on Top Emerging Enforcement Issues

  At the North American Securities Administrators Association (NASAA) Annual Conference earlier this week in Indianapolis, the NASAA Enforcement Section gave a preview of the results of its annual survey of securities administrators. In that survey, state securities regulators identified binary options, marijuana-related investments, stream of income investments and the cybersecurity of digital currency as the primary emerging enforcement concerns.   Binary options. Described by one regulator as “the flavor of the week in terms of investor fraud,” these options, with a fixed expiry time, are all-or-nothing investments. If the option expires in-the-money, the investor gets a fixed amount of cash; if it expires out-of-the-money, the investor gets nothing. Because they are easy to understand and do not require any leverage, state regulators believe relatively unsophisticated…

READ MORE
0 0

17 Sep 2014 News from Down Under: The Case against Leighton Holdings Further Highlights Problems with the Facilitation Payments Exception

  Traditionally, Australia has not vigorously enforced its anti-corruption laws.  In fact, an OECD report released in October 2012 found that, as of that date, enforcement of Australia’s Bribery of Foreign Officials Act was “extremely low,” considering the number of Australian companies exposed to bribery risk. It notes that as of 2012, only 1 of 28 referred allegations resulted in a prosecution. That may be changing with Monday’s report in the Australian Financial Review that Leighton Holdings, an international contracting company based in Australia and active in mining and oil and gas, has internal emails and other documents that show that it have paid substantial bribes in Iraq to secure oil and gas contracts. According to that article, among other things, certain leaked emails which…

READ MORE
0 0

10 Sep 2014 DODD-FRANK WHISTLEBLOWER LITIGATION HEATING UP

  The past few months have been busy for courts and the SEC dealing with securities whistleblowers. The Supreme Court’s potentially landmark decision in Lawson v. FMR LLC back in March already seems like almost ancient history.  In that decision, the Supreme Court concluded that Sarbanes-Oxley’s whistleblower protection provision (18 U.S.C. §1514A) protected not simply employees of public companies but also employees of private contractors and subcontractors, like law firms, accounting firms, and the like, who worked for public companies. (And according to Justice Sotomayor’s dissent, it might even extend to housekeepers and gardeners of employees of public companies).   Since then, a lot has happened in the world of whistleblowers. Much of the activity has focused on Dodd-Frank’s whistleblower-protection provisions, rather than Sarbanes-Oxley. This…

READ MORE
0 0

09 Sep 2014 Protecting Internal Investigations: The Indiana Supreme Court Weighs In

  As we wrote on August 22, 2014, corporate internal investigations may be harder to protect following the Delaware Supreme Court’s decision in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW. A recent ruling from the Indiana Supreme Court, however, provides corporations a bit more certainty and suggests the state may be more business-friendly than Delaware.   The Indiana decision, TP Orthodontics, Inc. v. Kesling, hints at an expansion of what a corporation must disclose in their Special Litigation Committee (SLC) reports when shareholders contest the good-faith nature of the SLC’s investigation. At the same time, though, the Supreme Court refused to limit the application of the attorney-client privilege to such documents.   In TP Orthodontics,the Indiana Supreme Court reversed a Court…

READ MORE
0 0

05 Sep 2014 Foreign Corrupt Practices Act – Keeping the Wolf at Bay

  Anti-bribery laws, including the United States’ own Foreign Corrupt Practices Act, seem to be becoming the stuff of Aesop’s Fables, with many asking whether the resounding alarm over bribery-exposure is akin to the cries of “wolf” by the shepherd boy. The alarm is real enough, however. The Securities and Exchange Commission and the Department of Justice have brought an average of 30 cases per year since 2005. These laws impact small and medium-sized companies and their executives, as well. In July 2014, Kara Brockmeyer, chief of the SEC Enforcement Division’s FCPA Unit explained that “small and medium-size businesses that want to enter into high-risk markets and expand their international sales” must be compliant with the FCPA.   So, if the wolf is really amongst…

READ MORE
0 0

04 Sep 2014 U.S. House of Representatives Committee on the Judiciary: Over-Criminalization Task Force

  In July on this Blog, I suggested that the House Committee on the Judiciary’s bipartisan Over-Criminalization Task Force may be worth keeping an eye on. With that in mind, here is a bit of an update.   When the Task Force was re-authorized this past February, it was scheduled to conclude its work in early August 2014. Of course, early August has come and gone. So, you may be wondering whether there is anything new to report about the Task Force. It appears that the House Committee has not again re-authorized the Task Force since February, and that the Task Force has held its final hearing. A report by the Task Force may not be too long in coming, and it will be interesting…

READ MORE