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Government Enforcement Exposed - "The GEE"
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18 Mar 2014 Heightened SEC/DOJ FCPA Standards Offer Risks and Opportunities to Companies and Their Lawyers

By Patrick J. Cotter |    Kara Brockmeyer, the SEC’s Chief of the Foreign Corrupt Practice Act Unit, spoke during the recent “SEC Speaks” conference held in Washington, D.C., Feb. 21 and 22. Based on her remarks, practitioners can, we submit, arrive at some useful conclusions about  the  Government’s  current views as to what companies need to do to comply with the Foreign Corrupt Practice Act and, by implication, what companies and their lawyers are  currently failing to do. Smart companies and their lawyers can choose to benefit from these new and higher FCPA expectations by the government, or they can ignore the warning signs and eventually pay the price.   The SEC’s Brockmeyer began by stating that companies need to customize their FCPA compliance…

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17 Mar 2014 Is the FTC The Latest Weapon of Aggressive Short Sellers?

By Jacob Zipfel |    Christmas came early for hedge fund manager William Ackman. Since December 2012, Mr. Ackman has repeatedly called for an investigation into Herbalife Ltd., a maker and marketer of nutritional supplements. Mr. Ackman contends that Herbalife is a pyramid scheme. All the while, his company, Pershing Square Capital Management LP, has shorted Herbalife stock, betting approximately $1 billion on its fall.   On March 12, 2014, Herbalife acknowledged that it is under investigation by the FTC over allegations it is a pyramid scheme. Within a few hours, the company’s stock dropped about 15 percent.   The FTC’s investigation is the most recent step in Mr. Ackman’s rather unique crusade to bring down Herbalife. Mr. Ackman has assembled a large team, including…

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13 Mar 2014 Top 10 Takeaways from ABA White Collar Crime Conference 2014 (Part 2 of 2)

By Kathleen Matsoukas |   This is the second part of a two-part blog post. Part 1 can be accessed here: “Top 10 Takeaways from ABA White Collar Crime Conference 2014 (Part 1 of 2)”   6. Search warrants are being used in white collar cases more frequently than ever before. The task of educating a client what to do in the event of a government search warrant may be an uncomfortable one.  However, the willingness of the DOJ and SEC to use search warrants in white collar cases (and the fact that the government is not, as yet, obligated to use a “least intrusive alternative” approach) means that companies must have procedures in place in the rare event that the government does show up…

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12 Mar 2014 Top 10 Takeaways from ABA White Collar Crime Conference 2014 (Part 1 of 2)

By Kathleen Matsoukas |   Last week’s annual American Bar Association White Collar Crime conference offered helpful glimpses into some emerging issues and recent trends in government enforcement both at home and abroad.  Today and tomorrow, we feature the Top Ten takeaways from the conference for individuals, companies, and white collar practitioners as compiled by our partners in attendance.    1. The Department of Justice’s FCPA Unit is alive and well and plans to aggressively enforce the FCPA in 2014. Patrick Stokes, the new Chief of the DOJ’s FCPA unit, stated that he expects a number of “significant corporate resolutions” in 2014 and that the FCPA unit expects an increased budget in 2014.  He emphasized that the unit is working closely with foreign jurisdictions in order…

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11 Mar 2014 SEC’s New Priorities Continue to Come into Focus: Admissions of Liability

By Jacob P. Zipfel |   Since taking the reins of the SEC in April 2013, SEC Chair Mary Jo White has shifted SEC enforcement policy in several areas: pursuing violations of all sizes—including small ones, increasing the SEC’s use of technology to find and prevent fraud in the market, and requiring an admission of liability in order to settle certain cases, the focus of this post.   Prior to 2013, the SEC as a matter of policy permitted companies and individuals to settle charges without admitting or denying liability. This policy typically benefitted both sides, strongly incentivizing settlement. Among other things, the policy enabled a defendant to avoid the exposure to private litigation that often resulted from an admission of liability. For its part,…

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07 Mar 2014 Barnes & Thornburg Legal Alert – Supreme Court Opens a Pandora’s Box of Whistleblower Litigation

By Brian E. Casey |   On Tuesday, the Supreme Court opened the door to a potential wave of whistleblower litigation under the Sarbanes-Oxley Act’s anti-retaliation provision, with its surprising 6-3 decision in Lawson v. FMR LLC.  The Supreme Court’s dissent predicts that even housekeepers, gardeners, and nannies might be able to assert retaliation claims under the Act.  How broadly future courts will interpret Lawson may depend on the imagination of plaintiffs’ lawyers, but one thing is certain – Lawson has created more questions, and more litigation, than it resolved.   For a more detailed analysis, please see the Client Alert published today jointly by the Firm’s Finance, Corporate Governance, and Mergers & Acquisition Litigation practice group and the Labor & Employment Department. You can…

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05 Mar 2014 The Department of Justice Continues to Bring the “HEAT” in Pursuing Health Care Fraud

By Kathleen L. Matsoukas |   The False Claims Act (31 U.S.C. §§ 3729 – 3733) (the FCA) penalizes individuals and companies (often government contractors) who defraud the government by either submitting a false request for payment or avoiding payment of an obligation to the government. In May 2009, the Department of Justice (DOJ) and Department of Health and Human Services jointly announced the formation of the Health Care Fraud Prevention and Enforcement Action Team, or the “HEAT” initiative, to specifically target fraud in the health care industry, and using the FCA as a primary tool. According to the DOJ’s own estimates, the HEAT initiative has been successful. Indeed, the DOJ claims that in only five years, it has recovered more than $13.4 billion based…

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03 Mar 2014 The Government Has Frozen My Bank Accounts, What Do I Do Now? Analyzing Asset Forfeiture After Kaley v. U.S.

By Jason R. Barclay |   On Feb. 25, 2014, the United States Supreme Court issued an opinion in Kaley v. United States, No. 12-464, 571 U.S. ___ (2014), a case eagerly followed by many in the white collar defense bar.  Brian and Kerri Kaley, who were indicted by a grand jury for transporting stolen medical devices and laundering the proceeds from the sale of those devices, took a simple legal position.  After the United States froze their assets, including a certificate of deposit that contained the only source of funds the Kaleys had available to pay their lawyers, the Kaleys argued that the Government should have been required to establish that there was probable cause to restrain those assets in an adversarial evidentiary hearing…

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03 Mar 2014 The SEC and Its “Strange Bedfellows” Argue Against Investors Seeking Damages for Fraud – Are Rebuffed by the Supreme Court

By Brian E. Casey |   When the SEC interprets the breadth of a federal securities statute the same way as the Defense Research Institute (DRI) and the Securities Industry and Financial Markets Association (SIFMA) – two prominent associations who traditionally interpret such laws narrowly – something is up. So it was in Chadbourne & Parke LLP v. Troice, a case interpreting the preemptive scope of the Securities Litigation Uniform Standards Act (SLUSA). As one senior SEC official admitted at the recent SEC Speaks conference, this case made for some “strange bedfellows.” But in a decision last Wednesday, the Supreme Court disagreed with all of them.   Troice arises out of the massive Ponzi scheme orchestrated by Allen Stanford. Stanford induced investors to buy certificates…

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27 Feb 2014 A Little-Known Exception to the 4th Amendment: Is Your Company’s Confidential, Proprietary Data Safe from Government Inspection When Entering the U.S.?

By Brian Weir-Harden* |    You arrive home to the United States from an international business trip. Customs directs you to open your bags for an inspection. Unconcerned, you acquiesce. The Customs Agent goes through your bags and finds nothing of interest, except your work laptop. To your surprise, the Customs Agent asks you to turn it on. He randomly opens files and reviews their contents. To your further surprise, the Customs Agent informs you that he will need to temporarily confiscate your work laptop in order to conduct a forensic examination. He takes your computer and makes an image of all its contents. You think to yourself, “This must be a violation of my Fourth Amendment rights against unreasonable searches and seizure, right?”   The answer:…

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