Fifth Circuit Signals Sea Change in CFPB Civil Investigative Demand Analysis

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregAuchterlonieSarah

By Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC with Sarah Auchterlonie, a Shareholder in the Denver, CO office.

On September 6, 2018 the U.S. Court of Appeals for the Fifth Circuit raised the standard under the Consumer Financial Protection Act (CFPA) (12 U.S.C. § 5562(c)(2)) for the specificity in a Bureau Civil Investigative Demand’s notification of purpose. In Consumer Financial Protection Bureau v. The Source for Public Data, Case No. 17-10732 (5th Cir. Sept. 6, 2018), the CFPB sent a CID to Source for Public Data, Inc., a company that provides records from local, state, and federal agencies about individuals through an internet-based search engine. The CID stated that its purpose was to investigate “unlawful acts and practices in connection with the provision or use of public records information.” It referenced the Fair Credit Reporting Act (FCRA). Continue reading “Fifth Circuit Signals Sea Change in CFPB Civil Investigative Demand Analysis”

Second Circuit Contradicts SEC/DOJ Guidance in Limiting Scope of FCPA

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregBy Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Thomas J. Krysa, a Shareholder with the firm in its Denver, CO office.

In a much watched Foreign Corrupt Practices Act (FCPA) case that originated in the U.S. District Court for the District of Connecticut, the U.S. Court of Appeals for the Second Circuit recently held in U.S. v Hoskins that a foreign national who is not employed by a U.S. company cannot be guilty of violating the law as an accomplice or co-conspirator. In so ruling, the court directly contradicted a 2012 FCPA guide promulgated jointly by the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ).  A unanimous three-judge panel held that “the government may not expand the extraterritorial reach of the FCPA by recourse to the conspiracy and complicity statutes.”  This decision is significant because it clarifies federal regulators’ and prosecutors’ jurisdiction over nonresident foreign nationals. Continue reading “Second Circuit Contradicts SEC/DOJ Guidance in Limiting Scope of FCPA”

D.C. Circuit Further Clarifies Attorney-Client Privilege “Primary Purpose” Test

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC.

In an unusually short, but to-the-point opinion, the U.S. Court of Appeals for the D.C. Circuit recently reaffirmed that the attorney-client privilege applies to a communication between attorney and client if at “one of the significant purposes” of the communication was to obtain or provide legal advice.  The case is Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc.  Judge Kavanaugh authored the unanimous opinion for the three-judge panel, which also included Judges Pillard and Randolph.  Continue reading “D.C. Circuit Further Clarifies Attorney-Client Privilege “Primary Purpose” Test”

DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC.

*Ed. Note: This is Greg’s inaugural commentary as a featured expert contributor. Greg is a member of WLF’s Legal Policy Advisory Board, and has extensive experience in law enforcement as a former United States Attorney and Deputy General Counsel of the FBI. He also served five terms in the Nevada legislature, where he was Chairman of the Senate Judiciary Committee.

Last month, in several speeches delivered in New York City to separate groups of white collar defense lawyers, Deputy Attorney General Rod Rosenstein announced a new U.S. Department of Justice (DOJ) policy concerning the proper coordination of penalties in corporate criminal cases.  This new policy, implemented by way of a new section in the U.S. Attorneys’ Manual (and a tweak to an existing provision), seeks to address the problem of “piling on” of multiple penalties by multiple enforcement entities in the context of corporate resolutions. Continue reading “DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions”

Supreme Court Has Second Chance to Resolve Circuit Split on Two Criminal Securities Fraud Issues

SchaerrGuest Commentary

By Gene C. Schaerr, a Partner with Schaerr Duncan LLP in Washington, DC. Mr. Schaerr is Counsel of Record for the petitioners on the certiorari petition discussed here.

The U.S. Supreme Court may be about to resolve two issues of enormous importance to anyone involved, directly or indirectly, in the sale of securities.  The case that may provide the vehicle for such a ruling, Ellison v. United States, was recently the subject of an order directing the U.S. Solicitor General to file a response to the defendants’ petition for certiorari by May 21.  That petition challenges a U.S. Court of Appeals for the Ninth Circuit decision that, as the Cato Institute, Reason Foundation, and a group of law professors explained in a supporting amicus brief, exacerbates a “system” already “stacked in favor of the government.” Continue reading “Supreme Court Has Second Chance to Resolve Circuit Split on Two Criminal Securities Fraud Issues”

President Commutes Sentence of Business Owner Victimized by Overcriminalization

rubashkinOn Wednesday, December 20, President Trump issued a statement commuting the sentence of Sholom Rubashkin, the former CEO of a kosher meatpacking plant. He had been convicted of financial fraud in 2009 and sentenced to 27 years in prison—a virtual life sentence for the then-51-year old Rubashkin. He had served 8 years of that sentence. Washington Legal Foundation actively participated in the courtroom and public resistance to the excessive sentence through amicus briefs and published commentaries. Continue reading “President Commutes Sentence of Business Owner Victimized by Overcriminalization”

The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted

supreme courtIn a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with  amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases.  Then again, the entire point of this feature is to identify such oversights.  Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.

One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted.  Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts.  Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired.  If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading “The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted”