DOJ Modifies Policy on Credit for Cooperation by Corporate Employees

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

Following an internal review of the Department of Justice’s policy concerning individual accountability in corporate cases, Deputy Attorney General Rod Rosenstein recently announced significant changes to the policy. Under the new policy, DOJ will treat civil cases differently than criminal cases when evaluating a corporation’s cooperation in an investigation. This change is a modification of the 2015 policy memo issued by then-Deputy Attorney General Sally Yates that required DOJ lawyers to investigate any individuals responsible for illegal corporate conduct before settling a case. The modified policy restores the discretion of DOJ attorneys in civil cases to approve settlements without investigating every individual corporate employee who might potentially be responsible for the illegal conduct. Continue reading “DOJ Modifies Policy on Credit for Cooperation by Corporate Employees”

DOJ Expands FCPA-Violation Self-Disclosure Incentive to the Health Care Industry

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Erin M. Eiselein, a Shareholder in the firm’s Denver, CO office.

It has been a busy few months for the Fraud Section of the Department of Justice (“DOJ”) as the section continues its road show to educate the health care community on its recent Foreign Corrupt Practices Act (“FCPA”) guidance. As has been widely reported, DOJ announced a new policy (which took effect immediately) of applying its FCPA Corporate Enforcement Policy to health care companies. DOJ has focused considerable enforcement resources lately on health care companies’ alleged payment of bribes to foreign officials. Continue reading “DOJ Expands FCPA-Violation Self-Disclosure Incentive to the Health Care Industry”

DOJ Issues New Guidance on Corporate Monitors Reflecting More Pragmatic Approach

White Collar Crime & Corporate Compliance

Brower_GregGarnettStanGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Stanley L. Garnett, a Shareholder in the firm’s Denver, CO office.

In an October 12 speech at the NYU School of Law last Friday, the head of the Department of Justice’s (DOJ) Criminal Division announced a policy memo that sets forth the department’s new process for the approval of corporate monitorship agreements and the selection of monitors. Assistant Attorney General for the Criminal Division Brian A. Benczkowski explained that the new policy follows a recent review of DOJ’s corporate enforcement policies led by Deputy Attorney General Rod Rosenstein. Continue reading “DOJ Issues New Guidance on Corporate Monitors Reflecting More Pragmatic Approach”

U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage

Brower_GregMoschellaWilliamE@2xFeatured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

The Department of Justice (DOJ) recently announced an indictment charging a Chinese government official with attempting to steal trade secrets and other sensitive information from an American aerospace company.  This is not the first indictment of its kind.  In fact, in announcing the indictment, Assistant Attorney General John Demers remarked that “[t]his is not an isolated incident.”  He explained that this case “is part of an overall economic policy of developing China at American expense.”  What makes this case unique is that fact that the Chinese defendant is now in U.S. custody after being extradited from Belgium.  Continue reading “U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage”

Encouraging Signals on Merger Review from DOJ’s Antitrust Division

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Baker Botts LLP.

Recently, Assistant Attorney General Makan Delrahim of the U.S. Department of Justice’s Antitrust Division gave a speech that offered a new vision for how DOJ approaches the merger review process. The most notable feature of Mr. Delrahim’s speech—certainly the one garnering the most press attention—is his goal of completing Second Request merger investigations in six months.

For those unfamiliar with DOJ antitrust enforcement, a “Second Request” is issued by the DOJ (or the Federal Trade Commission) at the end of the initial 30-calendar-day waiting period under the Hart-Scott-Rodino filing process. A Second Request consists of an extensive list of document and data requests, and frequently includes numerous depositions of company executives. A Second Request often requires the production of millions of documents and terabytes of data. Currently, it is not uncommon for a Second Request investigation to take 12-15 months or more to complete. Mr. Delrahim cited a study that indicated the average time for the agencies to complete a significant merger review has increased by 65% in the last five years. A dedicated effort to shorten this process is welcome indeed. Continue reading “Encouraging Signals on Merger Review from DOJ’s Antitrust Division”

At Stake in “Apple v. Pepper”: Why the Supreme Court’s Direct-Purchaser Rule is a “Super-Precedent”

app storeOne of the more interesting cases the Supreme Court will hear in the new term is Apple, Inc. v. Pepper. We’ve blogged previously about the case here. Superficially, the Court will decide whether iPhone users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims. But more fundamentally, resolution of the case hinges on the continued viability of Illinois Brick Co. v. Illinois, which holds that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages.

In February, two high-level officials in the Department of Justice’s Antitrust Division floated the possibility of asking the Supreme Court to abandon Illinois Brick’s direct-purchaser rule. But the Solicitor General, in the United States’ amicus brief, insists that the question is not properly joined in the case. If either the Respondents or their amici urge the Court to overturn Illinois Brick, they will face a high hurdle. Continue reading “At Stake in “Apple v. Pepper”: Why the Supreme Court’s Direct-Purchaser Rule is a “Super-Precedent””

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”