July 2020
AGG’s Government Investigations Team Insights provides periodic updates covering legal and regulatory topics. Our team, which includes former federal prosecutors, SEC enforcement attorneys, and federal agency attorneys, has successfully represented companies and individuals, including executives of public companies, in numerous civil and criminal investigations, including before the U.S. Department of Justice and U.S. Attorney’s Offices, the SEC, the EPA, the FDA, the FTC, and many other federal and state agencies. We also assist our clients by conducting internal and parallel investigations, and advising them regarding the related issues that often follow government investigations, including civil litigation, media interest, and reputational concerns.
In this edition, we cover the highly anticipated DOJ/SEC revised FCPA manual, the underlying reason behind the SEC/DOJ Antitrust Memo of Understanding, and a recent case limiting the Fifth Amendment’s Double Jeopardy protections.
FEATURED ARTICLES
The SEC's Efforts to Shift Profits from National Securities Exchanges to Market Participants Receive Latest Boost from DOJ Antitrust-SEC Memorandum of Understanding
By: Cory C. Kirchert, Georgina C. Shepard, Adriaen M. Morse Jr., and Aaron M. Danzig
When Jay Clayton was sworn in as chairman of the U.S. Securities and Exchange Commission (“SEC”) on May 4, 2017, he came with an apparent agenda. Specifically, Clayton sought to reduce the prices that national securities exchanges (“NSE” or “NSEs”)—which sell proprietary market-data products, including what are called “depth-of-market” data products—may charge the buyers of those products, including investment banks, broker-dealers, and asset management companies (collectively “Market Participants”). The Market Participants that use these NSEs to execute their buy and sell orders want access to proprietary data for less, little, or no cost to themselves. If they (via the sponsoring SEC) are successful, the loss in the NSEs’ revenue will increase the profits of the Market Participants. Read More >
DOJ and SEC Publish Second Edition of "A Resource Guide to the U.S. Foreign Corrupt Practices Act"
By: Georgina C. Shepard, Cory C. Kirchert, John P. Rowley III, Adriaen M. Morse Jr., and Aaron M. Danzig
On July 3, 2020, the Department of Justice Criminal Division (DOJ) and the Securities and Exchange Commission (SEC) published their second edition of A Resource Guide to the U.S. Foreign Corrupt Practices Act. When they originally published the Resource Guide in 2012, it marked the first time the two federal agencies had made available to practitioners such detailed, consolidated information about the FCPA statute and their enforcement efforts. Although the SEC and DOJ released a version with minimal, non-substantive changes in 2015, the 2020 edition is the first significant update in the eight years, during which time defendants increasingly challenged FCPA prosecutions thereby generating a significant body of case law. Read More >
Double Enforcers, Double Penalties, Double Jeopardy, and Double Talk
By: Cory C. Kirchert and Adriaen M. Morse Jr.
On July 14, 2020, in the case of United States v. Bank, the U.S. Court of Appeals for the Fourth Circuit answered its own rhetorical question: “[W]hether disgorgement ordered in a civil [SEC] proceeding constitutes a ‘criminal penalty’ for purposes of the Double Jeopardy Clause, such that an individual cannot be later prosecuted for the conduct underlying the disgorgement.” The obvious response – No – reveals how the judiciary has rendered the Double Jeopardy provision of the Constitution inapplicable to different federal agencies bringing serial legal actions and imposing multiple punishments for the same violations of the securities laws. Read More >
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Aaron M. Danzig Partner, Atlanta Office 404.873.8504 aaron.danzig@agg.com |
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Sara M. Lord Partner, DC Office 202.677.4054 sara.lord@agg.com |
The information presented provides a general summary and/or recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice.