Subject to Inquiry

Subject to Inquiry

THE LATEST ON GOVERNMENT INQUIRIES AND ENFORCEMENT ACTIONS

Government Investigations and White Collar Litigation Group

Government Investigations Group

Photo of Government Investigations Group Government investigations and related enforcement actions and litigation can take many forms, but they have one element in common: They require seasoned counsel to help clients navigate these difficult situations when their businesses and reputations are on the line. McGuireWoods’ national Government Investigations & White Collar Litigation Department has the experience and credibility clients have come to trust with their most sensitive matters.

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SEC to Begin Regulating Initial Coin Offerings More Heavily

Enforcement and Prosecution Policy and Trends, Securities and Commodities
On November 16, 2017, U.S. Securities and Exchange Commission (SEC) Chairman Jay Clayton announced in a symposium on cybersecurity and financial crimes that the SEC would start taking enforcement action against coin offering issuers who fail to register with the SEC. As cryptocurrencies, like Bitcoin, have become increasingly popular, startup companies have turned to a… Continue Reading

SEC Expected to Expedite FCPA Investigations in Light of Kokesh

Anti-Bribery and Corruption, Enforcement and Prosecution Policy and Trends
On November 9, 2017, Steven R. Peikin, Co-Director of the SEC’s Division of Enforcement, delivered a keynote speech at a conference commemorating the 40th anniversary of the enactment of the Foreign Corrupt Practices Act (“FCPA”) in which he reflected on “the past, present, and future” of the SEC’s enforcement of the FCPA. After confirming the… Continue Reading

SEC Approves New PCAOB Standard

Enforcement and Prosecution Policy and Trends, Financial Institution Regulation, Securities and Commodities
Recently, the SEC approved the PCAOB’s new auditor reporting standard, AS 3101, The Auditor’s Report on an Audit of Financial Statements When the Auditor Expresses an Unqualified Opinion. Hailed as the most significant change to the auditor report’s format in over 70 years, AS 3101 significantly changes the format of the existing auditor’s report, arming… Continue Reading

Increased Immigration Worksite Enforcement Looming in 2018

Enforcement and Prosecution Policy and Trends, Immigration and Worksite Enforcement
 The days of speculation may have ended. Immigration and Customs Enforcement’s (ICE) acting director recently made clear that Form I-9 audits and worksite enforcement actions will surge in the coming year. In line with the Trump Administration’s tough position on immigration and its budget requests, most employers have anticipated increased immigration-focused audits and enforcement actions.… Continue Reading

Profiting from Human Rights Abuses

Enforcement and Prosecution Policy and Trends
The Criminal Finances Act 2017 runs to nearly 150 pages. It was hurried through Parliament shortly before the June 2017 election.  It is an example of lazy and confusing legislating, where numerous sections and sub-sections are added on to existing legislation, giving rise to the creation of sections numbered 339ZD and 396L which pile uncertainty… Continue Reading

Will Supreme Court Narrow The Broadest Tax Crime?

Enforcement and Prosecution Policy and Trends
In the October 2017 term, the Supreme Court will take up its first criminal tax case in almost a decade, Marinello v. United States.  At issue is a longstanding circuit split about a mainstay of the federal government’s arsenal in financial crime cases, the tax obstruction statute, which makes a felon of anyone who “corruptly… Continue Reading

Recent Privilege Decision Raises Questions for Internal Investigations

Enforcement and Prosecution Policy and Trends
A recent federal district court case raises significant issues regarding privilege that should be on the radar of any in-house or outside counsel conducting an internal investigation with the goal of producing a public report. As discussed in a recent Privilege Points, the investigation at issue was conducted for the Washington Metropolitan Area Transit Authority… Continue Reading

Ninth Circuit Ruling Weakens Materiality Standard under the FCA

Fraud, Deception and False Claims
Last year in Universal Health Services, Inc. v. United States ex rel. Escobar et al. (discussed on this blog), the Supreme Court reminded litigants that the False Claims Act “is not an all-purpose antifraud statute.” In that case, the Court expanded upon the FCA’s materiality standard, calling it both “rigorous” and “demanding.” How demanding that… Continue Reading

DOJ Takes Down AlphaBay, the World’s Largest Dark Web Marketplace

Enforcement and Prosecution Policy and Trends
The U.S. Department of Justice has announced the seizure of AlphaBay, the largest criminal marketplace on the Internet, which was used to sell stolen financial information, identification documents and other personal data, computer hacking tools, drugs, firearms, and a vast number of other illegal good and services throughout the world. AlphaBay was the largest dark… Continue Reading

CFPB Issues Game-Changing Rule On Arbitration Clauses

Financial Institution Regulation
On Monday, July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued a game-changing final rule regarding the use of arbitration clauses in consumer contracts.  The Rule is effective 60 days following its publication in the Federal Register and applies only to contracts entered into more than 180 days after that date.  The final rule… Continue Reading

Treasury Department Recommends Broad Reforms to CFPB

Financial Institution Regulation
The Department of the Treasury recently cited the CFPB’s “unaccountable structure and unduly broad regulatory powers,” in suggesting reforms to address the CFPB’s “regulatory abuses and excesses.” The Department’s recommendations were made as a part of its report, A Financial System that Creates Economic Opportunities: Bank and Credit Unions, issued in response to President Trump’s… Continue Reading

CFPB Provides Updated Guidance Related to Loan Forgiveness Program

Compliance, Financial Institution Regulation
On Thursday, June 22, 2017, the Consumer Financial Protection Bureau (CFPB) provided updated guidance for supervisory examinations of student loan servicers.  Richard Cordray, the Director of the CFPB, gave prepared remarks in Washington D.C.  He explained his concerns related to the Public Service Loan Forgiveness program and how certain practices may be delaying or denying… Continue Reading

Proposed Rules Aimed at High-Risk Brokers Confirm FINRA Push for Firms to “Do Their Part”

Compliance, Enforcement and Prosecution Policy and Trends, Financial Institution Regulation
Financial Industry Regulatory Authority (FINRA) President and CEO Robert Cook spoke earlier this month at Georgetown University’s McDonough School of Business, where he outlined several proposals to further what he called one of FINRA’s “most important purposes”—“to protect investors from bad actors.”  Taking aim at “those who seek to evade regulatory requirements and harm investors… Continue Reading

Debt Collector Defined: Supreme Court Exempts Debt Purchasers

Financial Institution Regulation
On behalf of a unanimous Supreme Court, Justice Neil Gorsuch delivered his first opinion on June 12 to determine whether debt purchasers fall within the statutory language under the Fair Debt Collection Practices Act (FDCPA) as debt collectors. The Court determined that a company may collect debts that it purchased for its own account without… Continue Reading

U.S. Supreme Court Indirectly Limits Important Component of DOJ’s FCPA Pilot Program

Enforcement and Prosecution Policy and Trends
On June 5, 2017, the U.S. Supreme Court unanimously held in Kokesh v. Securities and Exchange Commission, No. 16-529, that the SEC may not reach beyond the general five year statute of limitations period in order to obtain “ill-gotten gains,” a remedy known as disgorgement. Although the case did not involve a Foreign Corrupt Practices… Continue Reading

U.S. Supreme Court Rules Time Limits Apply to SEC Disgorgement Orders

Enforcement and Prosecution Policy and Trends, Securities and Commodities
A unanimous United States Supreme Court held Monday, in Kokesh v. Securities and Exchange Commission, that the five-year statute of limitations under 28 U.S.C. § 2462 applies to disgorgement sought by the Securities and Exchange Commission. Previously, the Circuits had been split on this issue. The issue in Kokesh was straightforward. Kokesh appealed a trial… Continue Reading

SEC Issues Guidance in Wake of WannaCry Ransomware Attack

Financial Institution Regulation, Securities and Commodities
On Friday, May 12, the WannaCry ransomware attack struck hundreds of thousands of users across the globe, causing major disruptions in private and public networks. The attack, which encrypts a user’s files and holds them for ransom, may infect a computer without any action taken by the user.  With similar attacks expected, and as we… Continue Reading

FINRA President and CEO Robert Cook discusses FINRA360 and Consolidating Enforcement Divisions

Financial Institution Regulation, Securities and Commodities
On May 17, 2017, at the annual FINRA conference in Washington D.C., FINRA President and CEO Robert Cook discussed the recently-launched FINRA360 initiative: a top-to-bottom review of FINRA’s operations and organization.  Cook recognized that 2017 marks FINRA’s  ten-year anniversary since its “successful” but “complicated” merger of the National Association of Securities Dealers (NASD) and the… Continue Reading

The CFPB’s Alternative Data RFI: Making Your Response Count

Financial Institution Regulation
The Consumer Financial Protection Bureau (CFPB) recently issued a Request for Information (RFI) Regarding Use of Alternative Data and Modeling Techniques in the Credit Process, available here.  The deadline for response is May 19.  This post will provide practical advice on how to submit an effective RFI response. The RFI is the latest in a… Continue Reading

H-1B Employers Face Increased Site Visits

Immigration and Worksite Enforcement
Employers using the H-1B visa program should take note as additional site visits may be on the horizon.  U.S. Citizenship and Immigration Services (“USCIS”), part of the Department of Homeland Security, recently announced a new targeted approach to detect H-1B visa fraud and abuse and increased site visits of H-1B employers. In selecting worksite visits,… Continue Reading

CFPB Fails to State Case Against Payment Processor

Financial Institution Regulation
The United States District Court for the District of North Dakota recently dismissed the Consumer Financial Protection Bureau’s (CFPB) complaint against a payment processor, Intercept, in a case McGuireWoods has been monitoring.  The Court held that the CFPB failed to adequately plead an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection… Continue Reading

President’s Proposed Budget Increases Healthcare Fraud Enforcement Funding

Enforcement and Prosecution Policy and Trends, Fraud, Deception and False Claims
Much of the discussion surrounding President Trump’s 2018 budget blueprint has focused on cuts, but one proposed budget increase shows the new administration is likely to continue focusing on healthcare fraud enforcement.  Among cuts of approximately 18% to the budget of the Department of Health and Human Services (HHS), the president’s budget proposes $70 million… Continue Reading

Will 2017 Be the Year of Insider Trading Reform?

Enforcement and Prosecution Policy and Trends, Financial Institution Regulation, Fraud, Deception and False Claims
For several years running, insider trading has been among the most high-profile enforcement priorities for both DOJ and the SEC. Unlike most federal criminal law, insider trading remains undefined by statute, having instead been largely judge-made. Unsurprisingly, since the explosion of enforcement actions began, prosecutors and defendants have both pushed the courts to clarify (or… Continue Reading

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