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Government Investigations and White Collar Litigation Group
Anti-Money Laundering

FinCEN Rule Ends AML Program Exemption for Banks that Lack a Federal Regulator

By Matthew Orso, Susan C. Rodriguez, Jeffrey M. Hanna and Edward M. Nogay

On September 15, 2020, the Financial Crimes Enforcement Network (“FinCEN”) published a Final Rule bringing banks that lack a federal functional regulator further under its purview. The rule subjects these institutions to minimum standards for anti-money laundering (“AML”) requirements, including a BSA officer, AML policies and procedures, and regular employee training, among other obligations. It also extends Customer Identification Program and beneficial owner requirements to these banks.

The banks subject to this new rule include state-chartered, non-depository trust companies; non-federally insured credit unions; private banks; and other non-federally regulated banks.

The Rule, in accordance with the May 11, 2016 Customer Due Diligence Final Rule, requires minimum standards for AML programs “to ensure that all banks, regardless of whether they are subject to Federal regulation and oversight, are required to establish and implement written AML programs, including conducting ongoing customer due diligence, and to identify and verify the identity of the beneficial owners of their legal entity customers.”

FinCEN issued this rule because the gap in AML coverage between banks with and without a Federal functional regulator “presented a vulnerability to the U.S. financial system that could be exploited by bad actors . . . .” Accordingly, by implementing this Rule, FinCEN stated in its press release that it has eliminated the existing AML program exemption for banks without a Federal functional regulator in an effort to “ensure [BSA] coverage across the banking industry.”

The Rule will take effect on November 16, and institutions will have 180 days from the day the Final Rule was published to comply with it. Banks subject to the new rule must act now to ensure they have a robust and compliant AML program in place to meet the Rule’s requirements by the compliance deadline of March 15, 2021.

Securities and Commodities

Still Standing: SEC Disgorgement Survives with Limitations

By E. Andrew Southerling, Louis D. Greenstein, Nathan R. Pittman and Gilbert C. Dickey

In Liu v. SEC, the Supreme Court answered the question that remained following its 2017 opinion in Kokesh v. SEC:  “whether, and to what extent, the SEC may seek ‘disgorgement’ in the first instance through its power to award ‘equitable relief’” in a federal district court action under Section 21(d)(5) of the Securities Exchange Act of 1934 (15 U.S.C. § 78u(d)(5)).  Liu v. SEC, No. 18-1501 at 1.  In an opinion written by Justice Sotomayor (who also wrote Kokesh), the Court held that disgorgement, properly tailored, was an equitable remedy available in federal court SEC enforcement actions.  Liu, however, leaves the scope of the disgorgement remedy uncertain—as well as whether the five-year statute of limitations interpreted in Kokesh continues to apply to disgorgement claims that are properly tailored as “equitable relief” under the framework set forth in Liu.

In Kokesh, the Supreme Court determined that the five-year statute of limitations for penalties, 28 U.S.C. § 2462, applied not only to civil monetary penalties but also when the SEC sought disgorgement of a wrongdoer’s ill-gotten gains.  SEC v. Kokesh, 137 S. Ct. 1635, 1639 (2017).  That decision rested on the Court’s recognition of three features of disgorgement that the Court observed in SEC enforcement actions: (1) disgorgement was imposed as a consequence of violating a public law, an offense against the United States, and not an individual; (2) disgorgement was imposed for punitive purposes to deter wrongdoers, with the amount of disgorgement often exceeding the amount of net profits; and (3) disgorgement was not compensatory because disgorged funds are paid to the Treasury.  Id. at 1643-44.  In the Kokesh Court’s view, these three qualities of disgorgement confirmed that the disgorgement remedy was a penalty subject to the five-year statute of limitations.  Although § 2462 is a different provision from Section 21(d)(5), Kokesh called into question whether disgorgement was within Section 21(d)(5)’s authorization of “any equitable relief that may be appropriate or necessary for the benefit of investors.”  15 U.S.C. § 78u(d)(5).  The Court recognized this potential tension in Kokesh, but explicitly refused to address “whether courts possess authority to order disgorgement in SEC enforcement proceedings or . . . whether courts have properly applied disgorgement principles in this context,” thus setting the stage for Liu.  See id. at 1642 n.3.

To determine whether disgorgement was “equitable relief” for purposes of Section 21(d)(5), the Supreme Court in Liu analyzed whether disgorgement was within “those categories of relief that were typically available in equity.”  Liu at 5.  Surveying multiple cases involving equitable relief, the Court recognized that (1) equity had long authorized courts to strip wrongdoers of their ill-gotten gains, but (2) courts had only been authorized to strip net profits from wrongdoers to avoid converting an equitable remedy into a punitive sanction.  Id. at 6.  The Court also noted that Section 21(d)(5) stated the purpose of the equitable remedy was “for the benefit of investors,” suggesting that Congress intended the funds recovered through disgorgement to be returned to those who were harmed.  Id. at 14-15.  The rule itself that the Supreme Court crafted in Liu is thus clear:  Section 21(d)(5) authorizes the SEC to seek, and a court to order, “a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims.”  Id. at 1.

However, while the Court held that Section 21(d)(5) granted a court the power to order disgorgement in an SEC enforcement action, it set limitations on that power, stating that the traditional principles of equity imposed a limit on what the SEC could obtain through disgorgement.  Id. at 12.  In setting these limitations, however, the Court offered little guidance regarding how its interpretation of the disgorgement remedy is to be practically applied.  Specifically, the Liu decision left the resolution of three critical questions to the lower courts:  (1) how to determine what the “net profits” of a fraudulent scheme are and what expenses may be deducted from the proceeds of the scheme to arrive at the “net profits” subject to disgorgement; (2) whether and under what circumstances disgorged funds may be deposited with the Treasury or whether the funds must be disbursed to victims in every instance; and (3) under what circumstances a defendant can be ordered to disgorge another’s ill-gotten gains.  See id. at 12.

The rule articulated in Liu—that disgorgement is limited to net profits awarded for victims—is easy to state and appears to be firm.  Yet the Court’s discussion of the questions above makes clear that the rule does not establish a bright line, making it uncertain how the courts will apply Liu going forward, inviting the “great mischief” that Justice Thomas recognized in his dissent.  See id. at 6 (Thomas, J., dissenting).  For instance, while the Court held that “legitimate expenses” must be deducted from the proceeds of an unlawful undertaking before disgorgement could be ordered, the Court also held there was an exception for schemes where a business’s entire profit was attributable to wrongdoing.  Id. at 11-12.  Courts must therefore ascertain “whether expenses are legitimate or whether they are merely wrongful gains under another name.”  Id. at 19 (quotation marks omitted).  The Court also confronted the SEC’s practice of holding multiple defendants jointly and severally liable for disgorgement, a practice that was at odds with traditional equitable principles.  Id. at 10.  However, despite acknowledging a general rule against joint and several liability at equity, the Court did not set a firm rule prohibiting a court from entering an order disgorging from one defendant profits that accrued to another.  Instead, the Court recognized that the common law permitted liability for partners engaged in concerted wrongdoing, opening the door for “some flexibility to impose collective liability.”  Id. at 18.  The Court did not provide significant guidance to the lower courts to determine when joint liability might be appropriate, essentially directing courts to undertake a case-by-case analysis given “the wide spectrum of relationships between participants and beneficiaries of unlawful schemes.”  Id.  Lastly, although the SEC is required “to return a defendant’s gains to wronged investors for their benefit,” the Court ultimately offered no guidance regarding how a court should evaluate a potential claim by the SEC in instances where “the wrongdoer’s profits cannot practically be disbursed to the victims,” because such an order was not before the Court.  Id. at 16-17.  Liu left the question whether an order to pay funds to the Treasury can ever be consistent with equitable principles to the lower courts.

Liu’s impact may be more significant than recognizing that Section 21(d)(5) authorizes disgorgement and setting bounds on that remedy.  It is possible to read the decision to suggest that the Court’s holding in Kokesh no longer applies to disgorgement that is consistent with equitable principles.  The Liu Court’s holding that the SEC may only obtain net profits and as a general rule disgorgement should be paid to the injured limits the remedy authorized by Section 21(d)(5) in a way that eliminates two of the reasons the Kokesh court relied on to conclude that disgorgement was a penalty.  The Kokesh court observed that disgorgement was often punitive because (1) the amount of disgorgement exceeded net profits and (2) disgorgement was not compensatory because disgorged funds were paid to the Treasury.  But under Liu, neither of these features of disgorgement is authorized under Section 21(d)(5).  Indeed, the Liu decision acknowledges that the disgorgement remedy it approves is different from its understanding of disgorgement in Kokesh, noting that in Kokesh it considered a “version of the SEC’s disgorgement remedy that seemed to exceed the bounds of traditional equitable principles.”  Liu at 12 (emphasis added).  Therefore, although the Court did not reach the question, Liu could support the argument that Kokesh’s holding with respect to the statute of limitations applied only to non-equitable disgorgement, which under Liu is not an authorized form of disgorgement.  Thus, under this reading, properly tailored disgorgement under Liu would no longer be subject to the five-year statute of limitations.

On the other hand, there are strong reasons to believe that Liu did not alter the prevailing understanding of Kokesh’s holding and that the five-year statute of limitations continues to apply to all SEC enforcement actions in federal court seeking disgorgement.  Kokesh decided whether the disgorgement remedy was limited by § 2462, whereas Liu interpreted Section 21(d)(5), two different statutes with different language, and thus an interpretation of one should not control the other.  Liu also did not disturb the first reason that the Court gave in Kokesh for concluding that disgorgement was a penalty: that SEC disgorgement is imposed as a consequence for violating public laws, an offense against the United States, and not an individual.  The Court in Kokesh acknowledged that, even though disgorgement might serve “compensatory goals in some cases,” the fact that it had punitive purposes suggested disgorgement was a penalty for purposes of § 2462.  Thus, because Liu does not contradict or qualify Kokesh’s holding that disgorgement’s punitive character arises from the fact it is imposed as a consequence for a violation against the United States, there is an argument that disgorgement should continue to be limited by the five-year statute of limitations.

It is also not clear whether Liu will have a limiting effect on the SEC’s ability to obtain disgorgement in administrative proceedings.  A separate statute, Section 21C(e) of the Exchange Act, grants the SEC the authority to obtain “an order requiring accounting and disgorgement” in an administrative cease-and-desist proceeding.  25 U.S.C. § 77h-1(e).  As Justice Thomas observed in his dissent, “[i]t is unclear whether the majority’s new restrictions on disgorgement will apply to these proceedings as well,” creating the possibility that the SEC could obtain greater disgorgement of funds in administrative proceedings than in a litigated action in federal court.  See Liu at 7-8 (Thomas, J., dissenting).

Liu states a simple holding, that the SEC’s power to order disgorgement is limited to net profits awarded for victims.  Nevertheless, the holding leaves ample room for debate on how it impacts Kokesh, and how the SEC, litigants, and the courts will apply Liu to claims of disgorgement.  For sure, the industry can expect the SEC to reasonably advance the argument that Liu eliminated the concerns the Supreme Court identified in Kokesh and that disgorgement consistent with the principles of equity is no longer punitive and thus not subject to the five-year statute of limitations.

McGuireWoods is a national leader in securities enforcement defense. The firm’s securities enforcement and litigation team is part of an experienced and respected Government Investigations and White Collar Litigation Department that has been twice recognized as a Law360 Practice Group of the Year. We are comprised of former senior SEC and FINRA enforcement attorneys and litigators, as well as high-level federal prosecutors, and are experienced at managing every stage of complex regulatory investigations. Our team builds upon decades of experience of practicing before government agencies and regularly represents financial firms, audit committees, public companies, and their members, professionals and executives in internal and government criminal and civil investigations.

McGuireWoods’ Appeals and Issues practice team includes seven former U.S. Supreme Court clerks and handles hundreds of appeals in state and federal appellate courts each year. The National Law Journal named McGuireWoods to its prestigious 2018 Appellate Hot List honoring leading firms that achieved success before the U.S. Supreme Court and federal appeals courts.

Contacts

If you have any questions or would like more information on the issues discussed in this piece, please contact the authors above, or any of the following McGuireWoods LLP lawyers:

Securities & Enforcement Team:

Atlanta: Cheryl L. Haas
Los Angeles: Molly M. White
New York: William E. Goydan, Noreen Kelly and Helen J. Moore
Pittsburgh: Alexander M. Madrid
Raleigh: Aline M. McCullough
Richmond: Anitra T. Cassas
Washington, D.C.: Emily P. Gordy, Louis D. Greenstein and E. Andrew Southerling

Supreme Court Team:

John D. Adams
Kathryn M. Barber
Gilbert C. Dickey
Matthew A. Fitzgerald
Benjamin L. Hatch
Andrew G. McBride
Brian D. Schmalzbach

Fraud, Deception and False Claims

Supreme Court to Resolve CFAA Circuit Split

By Brandon M. Santos and Paul T. Atkinson

Following an FBI sting, police sergeant Nathan Van Buren was convicted under the federal Computer Fraud and Abuse Act (“CFAA”) for selling license plate information obtained from a police database. The Eleventh Circuit upheld his conviction. In April, the Supreme Court granted certiorari in Van Buren v. United States, No. 19-783, to address a circuit split more than a decade in the making. At issue in Van Buren is the scope of the CFAA, specifically, whether a person who is authorized to access information on a computer violates the CFAA if he accesses that information for an improper purpose or misappropriates the information. The Court’s holding will have broad implications on both criminal and civil computer fraud liability.

Computers are ever-present today. And it’s hard to imagine conducting our business or personal affairs without them. That was not so true when Congress enacted the CFAA in 1986. Designed as an anti-hacking measure, the statute was intended “to provide additional penalties for fraud and related activities in connection with . . . computers.” Computer Fraud and Abuse Act of 1986, Pub. L. No. 99-474, 100 Stat. 1213. As relevant in Van Buren, the CFAA makes it a criminal offense to “intentionally access a computer without authorization or exceed authorized access, and thereby obtain. . . information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). A private right of action also exists for parties that are damaged by a violation of this section. Id. § 1030(g). The statute defines “exceeds authorized access” as “access[ing] a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Id. § 1030(e)(6). This is not particularly clear. Perhaps more troubling, section 1030(a)(2)(C) lacks any intent requirement, like “the intent to defraud” found in other parts of the CFAA.

On appeal, Van Buren argued that his conduct did not violate the CFAA because he was authorized to access the license plate information in the police database by virtue of his position as a police officer. Even if his purpose for accessing the information was inappropriate, he did not exceed his authorized access within the meaning of the statute. The Eleventh Circuit rejected this argument. Relying on the court’s prior decision in United States v. Rodriguez, it held that misusing a database that the defendant may lawfully access can still constitute computer fraud. Van Buren, 940 F.3d 1192, 1208 (11th Cir. 2019) (citing Rodriguez, 628 F.3d 1258 (11th Cir. 2010)).

In upholding Van Buren’s conviction, the Eleventh Circuit acknowledged the federal circuit split over the proper scope of the CFAA. The First, Fifth, Seventh and Eleventh Circuits have each adopted a broad interpretation of the statute. An individual authorized to access a computer for certain purposes violates the CFAA by using information gained for an improper purpose. In other words, the purpose of the access and the use of the information control. In United States v. John, for instance, the Fifth Circuit found that a bank employee entitled to access customer account information violated the CFAA when she provided that account information to third parties to incur fraudulent charges. The court reasoned that the bank employee exceeded her authorized access because her use of the account information was not a permitted use and was contrary to the bank’s policies. 597 F.3d 263, 270-273 (5th Cir. 2010).

In contrast, the Second, Fourth and Ninth Circuits do not consider mere misuse of information that an individual is authorized to access a violation of the statute. In adopting this narrower interpretation, the Ninth Circuit relied on the history of the CFAA as an “anti-hacking statute” while also noting the vast expansion of federal criminal law that would accompany a broader interpretation and the parade of horribles that could follow. Specifically, the court noted that “the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes.” United States v. Nosal, 676 F.3d 854, 860 (9th Cir. 2012).

The Supreme Court has not previously addressed the CFAA. However, over the past decade, the Court has narrowed federal fraud jurisdiction on multiple occasions overturning high profile convictions in the process. In Skilling v. United States, the Court cabined the federal honest services fraud statute to schemes involving bribery or kickbacks. 130 S. Ct. 2896 (2010). As justification for this limiting construction, the Court cited vagueness concerns and the rule that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Id. at 2932 (quoting Cleveland v. United States, 121 S. Ct. 365, 373 (2000)). Notably, the rule of lenity was relied upon by all three circuits that have adopted a narrow construction of the CFAA.

Later, in McDonnell v. United States, the Court limited what qualifies as an “official act” under the federal bribery statute. 136 S. Ct. 2355 (2016). And most recently, the Court overturned the Bridgegate convictions holding that “a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme.” Kelly v. United States, 140 S. Ct. 1565, 1573 (2020). It remains to be seen whether the apparent ambiguity in the CFAA will receive a similar fate.

McGuireWoods’ Government Investigations & White Collar Litigation Department is a nationally recognized team of nearly 60 attorneys representing Fortune 100 and other companies and individuals in the full range of civil and criminal investigations and enforcement matters. Our team is comprised of a deep bench of former senior U.S. officials, including a former Deputy Attorney General of the United States, former U.S. Attorneys, more than a dozen federal prosecutors, and an Associate Counsel to the President of the United States. Strategically centered in Washington, D.C., our Government Investigations & White Collar Litigation Department has been honored as a Law360 Practice Group of the Year and earned the trust of international companies and individuals through our representation in some of the most notable enforcement matters over the past decade.

Immigration and Worksite Enforcement

U.S. Supreme Court Determines Action to Rescind DACA was Arbitrary and Capricious

By Heryka R. Knoespel, Susan C. Rodriguez, Matthew Orso and Jacquelyn Stone

On June 18, 2020, the U.S. Supreme Court issued a long-awaited decision regarding the Department of Homeland Security’s (“DHS”) choice to rescind the immigration program Deferred Action for Childhood Arrivals (“DACA”). The Court noted the question before it was not whether DHS may rescind DACA but rather, whether DHS followed proper procedure in rescinding the program. In a 5-4 vote, with Chief Justice John Roberts writing the opinion for the Court, the holding was narrow but pointed. The Court held that then DHS Acting Secretary violated the Administrative Procedure Act (“APA”) because the decision was arbitrary and capricious and, therefore, the decision to rescind DACA must be vacated.

Under the APA, federal agencies must engage in reasoned decisionmaking. In considering the narrow standard of review available under the APA, the Court made clear that it was not seeking to decide whether DACA or its rescission were “sound policies.”[1] Instead, the Court’s role was to assess whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[2]

The heart of the analysis focused on the fact that then Acting Secretary failed to consider “important aspects”[3] of the program. The Court stated that DHS was in no way required to consider all policy alternatives conceivable. The Court found, however, that while the Acting Secretary was bound by the Attorney General’s determination of the legality of DACA, she had discretion to continue forbearance and/or accommodate particular reliance interests even though the benefit eligibility would be removed. “She instead treated the Attorney General’s conclusion regarding the illegality of the benefits as sufficient to rescind both benefits and forbearance, without explanation.” In the Court’s view, the Acting Secretary’s failure to offer a reason for terminating forbearance and not consider whether to accommodate particular reliance interests of DACA recipients was arbitrary and capricious in violation of the APA. The Court stated that DACA could not be rescinded in full without giving “any consideration whatsoever” to a forbearance-only policy when the agency had previously stated that forbearance was “especially justified” for “productive young children . . . who know only this country as home.”[4]

The Government raised several arguments that the decision was outside of the Court’s jurisdiction. The Court rejected each one. Notably, the Court rejected the Government’s position that the agency’s decision could not be reviewed under the APA because it fell under the agency discretion exception under §701(a)(2). Generally, this exception has been read narrowly to protect an agency’s discretion in deciding not to prosecute or enforce. The Court, however, saw the agency’s action as reaching beyond a non-enforcement policy because it granted benefits to individuals. The agency, in addition to refusing to institute removal proceedings against certain individuals, had solicited applications, instituted a review process, adjudicated whether individuals met enumerated criteria, and granted qualifying individuals with benefits such as work authorization and eligibility for Social Security and Medicare.

The opinion remands to DHS to “consider the problem anew.”[5] All three underlying cases that led to this decision were also remanded for further proceedings consistent with the opinion.[6] Despite the Court’s opinion, the future of the DACA program remains unclear.

[1] Department of Homeland Security, et al. v. Regents of the University of California, et al., 591 U.S. _____, _____ (2020) (slip op. at 29).

[2] Regents, slip op. at 9.

[3] Regents, slip op. at 23.

[4] Regents, slip op. at 22.

[5] Regents, slip op. at 29.

[6] Id.

Uncategorized

Price Gouging Enforcement in the Wake of COVID-19: Where is the FTC?

By Sarah A. Zielinski, Kevin M. Lally, Alex J. Brackett and Elizabeth F. Tyler

The contours of price gouging enforcement continue to evolve rapidly within the rip current of the coronavirus pandemic.  As we previously reported, the Department of Justice and state attorneys general have spearheaded price gouging investigations, and private litigants have turned to the courts with price gouging-related class action lawsuits.  Yet one potential authority remains on the sidelines, at least for now: the FTC.  Although it has been active in protecting consumers from other COVID-19-related activity, the FTC has refrained from addressing price gouging during the current public health emergency.  This may soon change.

In late March, Democratic members of both houses of Congress wrote letters to the FTC encouraging it to exercise its broad enforcement powers under Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, to shut down COVID-19 price gouging.  In addition, a proposed federal law currently percolating through Congress would clarify the FTC’s enforcement power over price gouging during this pandemic.  On May 15, the House passed the Health and Economic Recovery Omnibus Emergency Solution (HEROES) Act.  Title I of Division M—known as the COVID-19 Price Gouging Prevention Act—would prohibit the “unconscionably excessive” sale of goods or services by sellers who use the public health emergency to unreasonably increase prices for the duration of the public health emergency.   This measure would reach goods and services across a broad array of industries, including providers of food and beverages, personal hygiene products, cleaning supplies, medical equipment and supplies, personal protective equipment (PPE), certain drugs, as well as healthcare, cleaning, and delivery services.  This legislation further authorizes the FTC to enforce price gouging violations and to assist state Attorneys General in their anti-gouging enforcement actions.

The COVID-19 Price Gouging Prevention Act sets forth the following factors for determining whether price gouging has occurred:

  1. Whether the price grossly exceeds the average price at which the seller sold the same or a similar good or service in one of two prescribed time periods before the emergency;
  2. Whether the price grossly exceeds the average price at which other sellers sold the same or a similar good or service before January 31, 2020; and
  3. Whether the price reasonably reflects the additional costs incurred, the profitability of lost sales, or the additional risks taken by the seller under the circumstances.

The HEROES Act also would create an additional layer of price gouging oversight in the healthcare industry.  Under the proposed law, the White House would appoint a Medical Supplies Response Coordinator responsible for monitoring the price of critical medical supplies and equipment needed to combat COVID-19 at every stage—from detection and diagnosis to prevention and treatment—and reporting any suspected price gouging to the FTC.

Although the HEROES Act is not expected to pass the Senate for reasons unrelated to its price gouging provision, companies should watch for this proposed clarification of the FTC’s authority to reappear in subsequent legislation.  In April, two bills similar to the COVID-19 Price Gouging Prevention Act (H.R. 6450 and 6472) were introduced in the House and referred to the Committee on Energy and Commerce.  Notably, the plain language of H.R. 6450 did not limit its reach to COVID-19 and would have established a federal price gouging law for future national and public health emergencies as well.  The private sector also has sought increased FTC involvement, with a leading online retailer recently voicing support for federal price gouging legislation that would place the FTC at the helm of enforcement.  In advance of such legislation, companies should continue to assess and mitigate pricing-related risks to avoid future enforcement actions under current laws at either the federal or state level.  As noted in our previous posts, proactive steps should be taken to document pricing decisions during this pandemic.  Our Quick Reference Guide to Price Gouging Law can help them understand the current legal landscape.

Price Gouging Laws Guide

McGuireWoods has implemented a price gouging team ready to respond to your inquiries regarding the application of federal and state price gouging mandates. For an overview of the Price Gouging Laws for each state and jurisdiction, click here.

For additional guidance on the effects of these laws or orders, please feel free to contact Alex Brackett, Kevin Lally, or Sarah Zielinski.

McGuireWoods’ Government Investigations & White Collar Litigation Department is a nationally recognized team of nearly 60 attorneys representing Fortune 100 and other companies and individuals in the full range of civil and criminal investigations and enforcement matters. Our team is comprised of a deep bench of former senior U.S. officials, including a former Deputy Attorney General of the United States, former U.S. Attorneys, more than a dozen federal prosecutors, and an Associate Counsel to the President of the United States. Strategically centered in Washington, D.C., our Government Investigations & White Collar Litigation Department has been honored as a Law360 Practice Group of the Year and earned the trust of international companies and individuals through our representation in some of the most notable enforcement matters over the past decade.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.

Enforcement and Prosecution Policy and Trends

The Tip of the Iceberg Emerges: Initial Wave of Class Actions Reflect How Private Causes of Action Will Add Significantly to Price Gouging Litigation

By Alex J. Brackett, Trent Taylor, Kevin M. Lally and Sarah A. Zielinski

As pandemic response task forces at the federal and state levels ramp up price gouging investigations and enforcement actions across the country, civil plaintiffs attorneys have jumped to the forefront by utilizing private causes of action to file price gouging-based class action lawsuits against dozens of major retailers and food supply companies.   Senate Majority Leader Mitch McConnell’s prediction that the COVID-19 crisis will be the “biggest trial lawyer bonanza in history” appears to be taking shape, as the number of putative class action lawsuits targeting price spikes in products that span the consumer spectrum—including N95 masks, toilet paper, hand sanitizer, medical supplies, consumer food items and emergency department physician services—escalates daily during the current crisis.  Notably, these lawsuits have attacked purported price gouging not just under existing price gouging statutes but also through an array of state laws, including consumer protection statutes, negligence, breach of implied contract, unjust enrichment and common law unconscionability.

As we discussed in a prior post, federal and state price gouging laws are widely varied, but frequently operate as a price cap that can cover products and services such as food, clothing, fuel, healthcare, hygiene supplies, transportation and storage.  Further, many state price gouging laws expressly include a private right of action, giving potential class action plaintiffs firms a wide berth from which to launch frontal assaults on industries and supply chains that may be operating without adequate awareness of the often strict pricing restrictions applicable during the current state of emergency.  For example, California’s 10% price cap lies at the core of several anti-gouging class actions filed against online and brick-and-mortar retailers.

Importantly, these laws are rarely invoked, largely untested and have never been applied in the type of widespread, sustained crisis in which we are now operating.  This could make it difficult for class action defendants to dispose of lawsuits in the early stages of motions practice, since courts will be addressing questions of first impression that could turn on the application of novel legal theories to a complex set of facts implicating entire supply chains, from the producer of production inputs to the retailer selling finished goods, and every player in between.

Companies in the retail supply chain that want to mitigate risk can and should take steps now to assess and document their pricing decisions in connection with the pandemic.  They should assume that they may be forced to defend these decisions down the road in a law enforcement or civil litigation setting.  Our Quick Reference Guide to Price Gouging Law can help them understand the legal lay of the land.

Price Gouging Laws Guide

McGuireWoods has implemented a price gouging team ready to respond to your inquiries regarding the application of federal and state price gouging mandates. For an overview of the Price Gouging Laws for each state and jurisdiction, click here.

For additional guidance on the effects of these laws or orders, please feel free to contact Alex Brackett, Kevin Lally, or Sarah Zielinski.

McGuireWoods’ Government Investigations & White Collar Litigation Department is a nationally recognized team of nearly 60 attorneys representing Fortune 100 and other companies and individuals in the full range of civil and criminal investigations and enforcement matters. Our team is comprised of a deep bench of former senior U.S. officials, including a former Deputy Attorney General of the United States, former U.S. Attorneys, more than a dozen federal prosecutors, and an Associate Counsel to the President of the United States. Strategically centered in Washington, D.C., our Government Investigations & White Collar Litigation Department has been honored as a Law360 Practice Group of the Year and earned the trust of international companies and individuals through our representation in some of the most notable enforcement matters over the past decade.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.

Enforcement and Prosecution Policy and Trends

Price Gouging Investigations Are Coming: What Industry Needs to Understand

By Alex J. Brackett, Kevin M. Lally and Sarah A. Zielinski

Update: please see our May 14 post for information on private causes of action to file a series of price gouging-based class action lawsuits against several dozen major retailers and food supply companies.

In response to the national coronavirus health crisis, federal and state Attorneys General have elevated the investigation and prosecution of COVID-19-related crime, including price gouging, to the forefront of their enforcement priorities. Attorney General William Barr created a national COVID-19 task force staffed with attorneys from all 94 United States Attorney’s Office to coordinate expedited federal enforcement actions for price gouging. Multiple state Attorneys General have created similar task forces, established federal-state partnerships, or publicly pronounced that they will zealously pursue prosecution of companies that engage in price gouging. The Federal Trade Commission also has authority to regulate price gouging. Simple complaint forms are linked to the home pages of many of these organizations, and industry-wide investigations into the sales of certain goods have already begun in some jurisdictions.

Given the breadth of products and services covered by price gouging laws, and the potentially tight pricing tolerances of the caps under some laws, companies and industries that think they are immune from scrutiny should think again.

To date, several federal and state price gouging cases have been filed and thousands of complaints are being investigated. As states re-open and grand juries reconvene, federal and state law enforcement can be expected to actively pursue investigations and prosecutions against companies engaged in the manufacture, distribution or sale of a wide variety of consumer and healthcare goods and services that experienced price spikes following federal or state emergency declarations. The industries and the specific goods and services that will be targeted for investigation will vary by jurisdiction. The federal and state statutes and orders lack uniformity regarding the items covered, the extent of price increase prohibited and the time parameters covered. As a result, price increases on a particular good or service that may be legal in one jurisdiction may be deemed criminal price gouging elsewhere.

Federal Price Gouging Enforcement (Healthcare and PPE Focused)

Under federal law, the current anti-gouging order took effect on March 23, 2020, when President Donald Trump issued Executive Order 13910 invoking the Defense Production Act to designate select health and medical resources, as identified by the Secretary of Health and Human Services, as protected items. Tailored to address the current health crisis, these items include various types of personal protective equipment, medical equipment, and sterilization materials. Until such time as the Secretary of Health and Human services terminates this designation, it is a Class A misdemeanor punishable by up to one year imprisonment to sell any designated item at prices in excess of the prevailing market rates.

State Price Gouging Enforcement (Consumer Goods and Services Focused)

State price gouging laws and orders are far more varied. Some states have issued anti-gouging orders accompanying COVID-19 emergency declarations that are largely consistent with federal law. Many other states rely on price gouging statutes triggered by declarations of emergency that incorporate within their scope a wide array of goods and services, including fuel, pharmaceuticals, food and water, clothing, cleaning and hygiene materials, building supplies, and shipping and other transportation services. A small number of states do not have statutes proscribing price gouging, although many of them have indicated intention to pursue price gouging via unfair and deceptive trade practices or other consumer protection laws.

Importantly, state laws vary significantly in how price gouging is defined. In many states, there is a statutorily-set price cap that compares prices charged during the period when the emergency is in effect with prices charged for the same good or service during a defined time period prior to the emergency declaration (e.g., 10% above the price charged for that good or service on a particular day or over a number of days prior to when the emergency was declared). The tolerance cut-off and the comparative timeframe differ from state to state. Other states eschew price caps and rely on more amorphous terms such as “unconscionable” or “excessive” price increases. States with defined caps do tend to allow for larger price increases if they are tied to higher costs, but still tend to apply a cap (e.g., 10% over cost plus standard markup).

Compliance Challenges and Strategies

The patchwork of federal and state statutes and orders can make it difficult for companies operating regionally, nationally or internationally to remain in full compliance with price gouging laws during the COVID-19 crisis—particularly as many may not be aware that they are currently, and for some weeks have been, subject to pricing caps in states into which they sell goods or services. Adding to this difficulty is the fact that the current patchwork will unravel in a non-uniform way, with standards, timing and enforcement vigor that will vary by jurisdiction. Companies that find themselves out of compliance with these laws could be exposed to significant legal and reputational risks, as branding a corporation as a profiteer that cold-heartedly placed financial gain over national security and citizen health during a global pandemic will be a politically tempting headline to grab.

However, there are ways to manage these risks.  Companies that manufacture, distribute, or sell goods or services that fall within the scope of the anti-gouging statutes or orders should examine both their prices and their pricing mechanisms to confirm compliance. In the event that the price for a designated good or service increased from March 2020 to the current date, companies should assess the following:

  • Is the price increase the direct result of increased costs on the supply side, including, labor, materials and supplier price increases?
  • Was the good or service sold at a price beyond the prevailing market rate within a community or across the industry (and if so is there a justification)?
  • Did the price increase exceed a state-defined tolerance level, the most common of which is 10% above pre-crisis pricing (or 10% above cost plus standard markup)?
  • Can you document how and why prices increased, and is that information being preserved?
  • If prices are out of tolerance in certain markets, are you able to bring them into alignment with applicable caps?
Price Gouging Laws Guide

McGuireWoods has implemented a price gouging team ready to respond to your inquiries regarding the application of federal and state price gouging mandates. For an overview of the Price Gouging Laws for each state and jurisdiction, click here.

For additional guidance on the effects of these laws or orders, please feel free to contact Alex Brackett, Kevin Lally, or Sarah Zielinski.

McGuireWoods’ Government Investigations & White Collar Litigation Department is a nationally recognized team of nearly 60 attorneys representing Fortune 100 and other companies and individuals in the full range of civil and criminal investigations and enforcement matters. Our team is comprised of a deep bench of former senior U.S. officials, including a former Deputy Attorney General of the United States, former U.S. Attorneys, more than a dozen federal prosecutors, and an Associate Counsel to the President of the United States. Strategically centered in Washington, D.C., our Government Investigations & White Collar Litigation Department has been honored as a Law360 Practice Group of the Year and earned the trust of international companies and individuals through our representation in some of the most notable enforcement matters over the past decade.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.

Compliance

Congressional Investigations: A Month In, Congress Signals Close Scrutiny of CARES Act and Paycheck Protection Program

By Jeffrey M. Hanna, John Adams, Susan C. Rodriguez, Todd R. Steggerda, Mona G. Mohib, Paul J. Reagan and Carolyn J. Appel

The CARES Act is only a month old, but plans for investigations to track the nearly $3 trillion in coronavirus relief funds are already emerging from Congress. Among the mechanisms for oversight created and funded by the CARES Act itself is the Congressional Oversight Commission, a five-member committee overseeing $500 billion in loans doled out by the Treasury Department targeting larger businesses.   Additionally, a new investigative select committee, chaired by Representative Jim Clyburn (D-SC) and operating under the House Committee on Oversight and Reform, will monitor President Trump’s implementation of coronavirus relief efforts.  And this anticipated congressional scrutiny comes on top of the expected investigative work of the new office created within the Treasury Department, the Special Inspector General for Pandemic Recovery (“SIGPR”), created to investigate how this $500B fund was utilized.

One of the programs included in the CARES Act most likely to be a target of congressional investigations—and already in the crosshairs of the media and Members of Congress from both parties—is the Paycheck Protection Program (“PPP”), which is designed to provide relief to small businesses during the COVID-19 crisis. The businesses and lenders participating in the PPP are likely to receive intense scrutiny not only because of the large sums of money that were distributed in such a short time frame (the initial program exhausted $349 billion in just 13 days, and Congress recently added another $310 billion), but also because of widespread media reports that the government-backed loans are not going to the small businesses for which the money was intended. In fact, Representative Clyburn recently announced that the new investigative committee will prioritize looking into how PPP funds went to publicly-traded companies. Representative Nydia Velazquez (D-NY), Chairwoman of the House Small Business Committee, has also publically said big firms that took funds from the PPP should pay them back. Other committees with jurisdiction could include the Senate Small Business Committee, the Senate Banking Committee, and the House Financial Services Committee.

Moreover, numerous lawmakers—including both Democrats and Republicans, each of whom have a political interest in seeing Main Street loans fulfilled—have expressed the need for more oversight in letters to the SBA and the Treasury Department and their Inspectors General, as well as to certain lending institutions, voicing concerns about where the money has gone and seeking explanations for how the Trump Administration will combat potential fraud. There can be no doubt that at least some of the concerns expressed below will translate into congressional inquiries and hearings. This recent flurry of letters regarding investigations includes:

  • Senator Elizabeth Warren (D-MA) and Representative Velazquez sent a letter to the SBA and Treasury Department Inspectors General asking those offices to open an investigation into whether (i) the PPP favored larger, wealthier, or existing customers; (ii) the SBA and Treasury Department rulemaking and guidance processes were effective in protecting against fraud, waste, and abuse; (iii) businesses that received loans were in need of those funds due to the COVID-19 pandemic; and (iv) companies with close ties to the Trump Administration or those with other political connections were able to receive PPP funds.
  • Senate Majority Leader Chuck Schumer (D-NY) and Senators Sherrod Brown (D-OH) and Benjamin Cardin (D-MD) sent a letter to the SBA Inspector General requesting that the IG investigate reports that certain lenders prioritized applications of their larger, wealthier clients to the detriment of smaller businesses, including “concierge-type services,” such as personalized assistance filling out paperwork and other administrative requirements.
  • Senator Marco Rubio (R-FL), Chairman of the Senate Committee on Small Business and Entrepreneurship, sent a letter to a number of large banking institutions requesting information on their application process amid concerns that certain lenders prioritized borrower applications, which Rubio said in a press release was a violation of congressional intent of the program. Senator Rubio has announced he will use the Committee’s subpoena powers to conduct aggressive oversight of the PPP.
  • Senators Diane Feinstein (D-CA) and Kamala Harris (D-CA) sent a letter to the Treasury Department calling for an investigation into why there were substantial funding disparities among states receiving PPP funds. Representative Jackie Speier (D-CA) wrote a similar letter to the Treasury Department and the SBA, requesting additional information on dispersal of PPP funds, including asking how SBA prioritizes lenders’ requests for funding.
  • Representatives Judy Chu (D-CA), Chairwoman of the House Small Business Subcommittee on Investigations, Oversight, and Regulations, and Representative Velazquez wrote a letter to the SBA and the Treasury Department urging new rules for PPP to ensure lenders do not set unreasonable, exclusionary, or inequitable conditions on applicants, citing concerns that lenders were only accepting applications from customers with a pre-existing business lending relationship or business checking account.
  • Representative Ron Kind (D-WI) sent a letter to the Treasury Department requesting more oversight over the second round of PPP funds to ensure the loans are going to small businesses who would not have otherwise been able to stay afloat during the COVID-19 crisis, and not to large or publicly traded businesses.

Members of Congress will also be receiving information about the loans from a group of inspectors general. The CARES Act created the Pandemic Response Accountability Committee (“PRAC”), where inspectors general from a variety of federal agencies—including SBA, FDIC, DOJ, DOD, and the Board of Governors of the Federal Reserve, among others—will have broad oversight authority. The PRAC is required to make regular reports to Congress (and the President), which will most certainly generate additional interest and likely lead to congressional investigations.

One thing these letters from Congress reveal: with such a tremendous amount of funding made available, and the pressure to pass the legislation and distribute the funds in an expeditious manner, Congress will closely scrutinize all parties to the programs. This includes the Executive agencies, the lenders, and especially the borrowers, already targets of Congress and the media.

Notably, the CARES Act provided substantial funding for oversight, and in several cases funded oversight arms into 2025. With an election cycle looming, this combination of factors—and the substantial noise out of Washington—suggests there will be years to come of political investigations.

About McGuireWoods’ Congressional Investigations Group

The Congressional Investigations practice at McGuireWoods is part of an elite Government Investigations & White Collar Litigation Department that was recently named a Law360 Practice Group of the Year for 2019. Our senior team is comprised of a deep bench of lawyers with decades of experience with investigations at the intersection of law and politics, including a former Deputy Attorney General of the United States, former U.S. Attorneys, more than a dozen federal prosecutors, an Associate Counsel to the President of the United States, and other former senior enforcement officials.  Ranging from the Major League Baseball steroid scandal, the Deepwater Horizon inquiries, and the USA Gymnastics sexual assault investigations, our Congressional Investigations lawyers have been in the trenches, representing a wide range of companies and individuals in the most high-politicized congressional investigations matters over the last few decades.  Our Congressional Investigations team also leverages the strengths of our highly regarded colleagues at McGuireWoods Consulting, our bipartisan legislative consulting arm comprised of former elected officials, senior Executive Branch officials, more than a dozen senior congressional staffers, and White House and legislative staff. Complementing our legal and legislative know-how, we maintain robust personal and professional relationships with Members of Congress and their staff, and have earned a reputation for knowing how to navigate the halls of Congress.

About McGuireWoods Consulting’s Federal Team

Our federal team assists clients in communicating with federal policymakers on complex legislative issues in every major area, from trade to healthcare to transportation. We draw on our Capitol Hill and executive branch relationships, policy experience, and strategic understanding of process to help clients fend off unwelcome initiatives and affirmatively shape sound policy environments for achieving business goals.

Compliance

DOJ Puts Collection of Civil Penalties on Hold in Response to COVID-19

By Christina Egan, David Pivnick, Austin R. Shepard and R. Andrew Austria

In a pair of recent memoranda from the Executive Office for United States Attorneys (“EOUSA”) issued on March 31, 2020, and April 13, 2020, the United States Department of Justice (“DOJ”) has effectively halted enforcement actions and the collection of civil penalties.  Included in this temporary suspension is the collection of civil penalties incurred in suits under the False Claims Act (“FCA”).  The FCA is the federal government’s primary tool for recourse against false or fraudulent claims made against government programs.

In the FCA context, this suspension has implications for key government programs in light of the current coronavirus outbreak, including Medicare and Medicaid.  Pursuant to this new guidance, U.S. Attorney’s Offices will temporarily suspend enforcement activity on civil debt levied against health care providers who billed the government insurance programs for goods and services that were not rendered, were substandard, and/or medically unnecessary.  The temporary suspension will also affect enforcement activity on civil debt levied against other government contractors.

This moratorium on the collection of civil debt is effective until at least May 31, 2020, and may potentially be extended either by legislation or administrative action.  The temporary suspension applies broadly to collection activity on civil debts, including debts in active repayment.  The memoranda direct the U.S. Attorney’s Offices not to pursue new enforcement actions, and payments scheduled under active payment plans will not be considered in default if left unpaid.  However, interest may accrue depending on the type of civil debt, and affected parties may continue to make voluntary payments on interest or their full penalties.  The April 13, 2020, memorandum from the EOUSA clarifies that the collection of debts pursuant to voluntary settlement agreements may continue, since they are appropriately considered “voluntary payments.”

Although affirmative civil debt collection and enforcement actions are temporarily suspended, U.S. Attorneys may continue to investigate claims, file complaints, litigate cases to judgment, settle any affirmative civil enforcement matter, and pursue preparatory collection actions and other measures to protect the government’s interests.  This temporary suspension does not apply to ongoing litigation, appeals, or cases not subject to a final, non-appealable judgment, and the government’s remedies for breach of any settlement agreement remain intact at this time.

In addition, this temporary suspension does not extend to the collection of criminal penalties, including fines and restitution that are the result of a criminal conviction or plea and entered pursuant to a court order or judgment under a criminal statute.

Entities and individuals currently making payments to the federal government who wish to take advantage of the temporary suspension should ensure they fall within the parameters of the memoranda.  Before delaying payments, entities and individuals should seek legal guidance from their existing counsel or retain counsel to discuss their potential options, including possible outreach to the relevant authorities.

Please contact the authors for additional guidance on how these issuances and other COVID-19 considerations will affect federal enforcement actions and the related rules. McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial coronavirus-related business and legal issues.

Compliance, Enforcement and Prosecution Policy and Trends, Financial Institution Regulation, Securities and Commodities

SEC Enforcement Co-Directors Issue Statement on Insider Trading

By E. Andrew Southerling, Louis D. Greenstein, Hannah Thompson Frank and Maria L. Sasinoski

Under the leadership of U.S. Securities and Exchange Commission Chairman Jay Clayton, the SEC’s Division of Enforcement has made the protection of Main Street investors its overarching priority.  On March 23, 2020, Division of Enforcement Co-Directors Stephanie Avakian and Steven Peikin issued a statement to financial market participants re-emphasizing the SEC’s commitment to safeguard the integrity of the nation’s financial markets given the market disruption caused by the 2019 coronavirus disease (COVID-19).

In their Statement Regarding Market Integrity (found here: Statement Regarding Market Integrity) Co-Directors Avakian and Peikin reminded market participants – corporate issuers, broker-dealers, investment advisers, and other registrants – of the importance of controlling for the potential receipt and misuse of material nonpublic information (MNPI) in light of the unprecedented market and economic conditions caused by COVID-19.  They further cautioned that trading in a company’s securities on the basis of inside information (insider trading), or the improper dissemination of MNPI, may violate the antifraud provisions of the federal securities laws.

To start, the Co-Directors noted that in the current dynamic climate, corporate insiders are continually learning new MNPI that may be even more valuable than under normal circumstances particularly if a company’s earnings reports or required SEC disclosure filings are delayed due to COVID-19.  Given the unique circumstances, a greater number of persons may have access to MNPI, and companies would be wise to revisit corporate controls and remind those with access to keep this information confidential and comply with insider trading prohibitions.

Further, they urged companies to be mindful of, among other things, established disclosure controls and procedures, insider trading prohibitions, and codes of ethics, to ensure that companies are protecting against improper use and dissemination of MNPI.  Safeguarding confidential corporate information is particularly critical given the current work environment where many employees are forced to work remotely, corporate emergencies are hashed out from unsecure locations, and relaxed controls over confidential information could lead to its potential downstream misuse.

Finally, Co-Directors Avakian and Peikin reminded broker-dealers and investment advisers to adhere to policies and procedures designed to prevent the misuse of MNPI.  As the industry has seen in prior government enforcement investigations and actions involving market moving information related to congressional, legislative, and governmental agency actions, controlling the rapid flow of information concerning COVID-19 and its potential impact on market sectors and public issuers will be critical to financial services firms and other market participants using such information to inform investment decisions for themselves and investors.  Congressional, executive branch, and government agency information can be deemed confidential or MNPI, and financial firms and other market participants monitoring government information and actions need to be aware that each of the executive and legislative branches as well as government agencies have rules and guidance in place governing confidential and nonpublic information.  Now more than ever, market participants interacting with government employees should make clear that their firms and employees do not wish to receive confidential information or MNPI concerning congressional, legislative, and executive branch or other government agency actions, and firms would be well served to double down on policies designed to control for the possible receipt and misuse of confidential information or MNPI arising from those interactions.

In these challenging times, we recommend that market participants heed the Co-Directors’ reminder of the need to comply with the prohibitions on illegal securities trading.  Companies and financial institutions should take a fresh look at policies and procedures governing the potential receipt and misuse of confidential information or MNPI and remind/retrain their employees accordingly.  The SEC has made clear that it remains committed to maintaining the integrity of the financial markets and ensuring the protection of Main Street investors during these unprecedented times.

McGuireWoods Securities Enforcement and Litigation Team

The firm’s SEC and DOJ enforcement lawyers have extensive experience counseling clients on compliance with insider trading rules and regulations as well as defending government investigations and litigation involving allegations of insider trading. If you have any questions regarding these matters, please contact the authors of this alert. Additional information regarding McGuireWoods’ Securities Enforcement and Litigation Team is available here.

McGuireWoods Securities and Compliance Team

The firm’s securities compliance lawyers assist registrants with their reporting obligations under the Securities Exchange Act of 1934, including forms 10-K, 10-Q and 8-K, Section 16 reports and DEF 14A (proxy statements), as well as with Regulation FD and Regulation G compliance. We prepare insider trading policies, develop training programs, and assist with other aspects of securities transactions engaged in by company officers, directors and significant security holders, including 10b5-1 plans and Rule 144 compliance.

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