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Sarah Aberg is special counsel in the White Collar Defense and Corporate Investigations Group in the firm's New York office.

In Liu v. Securities & Exchange Comm’n, No. 18-1501, 2020 WL 3405845 (U.S. June 22, 2020), the United States Supreme Court upheld the authority of the Securities and Exchange Commission (“SEC”) to seek disgorgement as an equitable remedy under 15 U.S.C. § 78u(d)(5), so long as it “does not exceed a wrongdoer’s net profits and is awarded for victims.”  Although Liu preserved the SEC’s disgorgement powers as a general matter, it narrowed the criteria for appropriate equitable relief, effectively curtailing the SEC’s ability to pursue unduly broad disgorgement remedies.
Continue Reading Supreme Court Preserves But Limits SEC Disgorgement Power

Presidential Proclamation

On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories.
Continue Reading How the New Presidential Proclamation Regarding Non-Immigrant Visas Affects Your Company

The United States Department of Justice (DOJ) released updated guidance regarding its evaluation of corporate compliance programs on June 1, 2020.  The release comes just over a year since the guidance was last updated in April 2019.  While these latest changes are less extensive than the most recent ones, there are some key differences that suggest the DOJ may be shifting some areas of focus when it comes to its approach to assessing the effectiveness of corporate compliance programs.
Continue Reading DOJ Updates Corporate Compliance Guidance

On May 26, 2020, the Financial Crimes Enforcement Network, (“FinCEN”) issued a notice in the Federal Register updating cost estimates related to compliance with filing suspicious activity reports (SARs).  Under the Bank Secrecy Act, 31 U.S.C. § 5311 et seq., certain businesses providing financial services are required to file SARs upon suspicion that a crime or violation was committed by, at, or through that financial institution (so long as certain dollar thresholds are met), or upon suspicion of insider abuse of any kind.
Continue Reading FinCEN Issues Notice on SARs Filing Figures

On May 13, 2020, Financial Crimes Enforcement Network (“FinCEN”) Director Kenneth Blanco delivered remarks to the Consensus Blockchain Conference regarding the agency’s recent observations in connection with virtual currencies, including the current risks of criminal exploitation of virtual currency, significant issues FinCEN anticipates for virtual currencies in the future, and the industry’s compliance with the Travel Rule.
Continue Reading FinCEN Director Addresses COVID-19 Related Virtual Currency Issues at Consensus Blockchain Conference

On May 4, 2020, the Securities and Exchange Commission (“SEC”) issued a temporary final rule easing some restrictions on small businesses seeking to raise capital pursuant to Regulation Crowdfunding (“Reg CF”).  The SEC made the move in response to feedback from its Small Business Capital Formation Advisory Committee and other outreach conducted by SEC staff regarding the industry’s urgent need for expedited access to capital while maintaining investor protections as the COVID-19 pandemic persists.
Continue Reading SEC Offers Limited Rule Relief to Spur Small Business Crowdfunding During Pandemic

On May 12, 2020, speaking at the Securities Enforcement Forum West 2020, Steven Peikin, the co-Director of the Securities and Exchange Commission Enforcement Division, provided an overview of the division’s activities over the last several months as it has responded to the challenges created by the COVID-19 pandemic.  The Division is actively monitoring issuers and market participants for any sign of abuse of the situation, swiftly implementing interim trading suspensions where the possibility of such abuse is identified, and filing enforcement actions in record time where it determines such abuse has occurred.
Continue Reading SEC Co-Director of Enforcement Outlines Division’s Response to COVID-19

In Taylor Lohmeyer Law Firm P.L.L.C. v. United States, No. 19-50506, 2020 WL 1966844 (5th Cir. Apr. 24, 2020), the United States Court of Appeals for the Fifth Circuit held that a Texas-based estate and tax-planning law firm (“Taylor Lohmeyer” or the “firm”) could not invoke the attorney-client privilege to quash a summons by the Internal Revenue Service (“IRS”) seeking the identities of firm clients.  In affirming the district court’s decision, the Court of Appeals ruled that Taylor Lohmeyer could not use the privilege as a “blanket” to circumvent compliance with the summons, but may have viable arguments to shield disclosure of specific documents through the use of a privilege log.
Continue Reading Fifth Circuit Holds that Law Firm Cannot Claim Privilege Over Client Identity in IRS Probe

In Chufen Chen v. Dunkin’ Brands, Inc., No. 18-CV-3087, 2020 WL 1522826 (2d Cir. Mar. 31, 2020), the United States Court of Appeals for the Second Circuit held that the act of registering as a foreign corporation under Section 1301 of the New York Business Corporation Law (“BCL”) does not constitute consent to general personal jurisdiction in the courts of the State.  In reaching its holding, the Court held that the United States Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 117 (2014), effectively overruled the New York courts’ long-held interpretation that registering under BCL § 1301(a) constituted consent to general personal jurisdiction.  This decision provides clarity to companies doing business in New York but headquartered and incorporated outside the State that they will not ordinarily be subject to personal jurisdiction in New York state and federal courts.
Continue Reading Second Circuit Holds that Registering to do Business in New York Under Section 1301 of the Business Corporation Law Does Not Constitute Consent to General Personal Jurisdiction in New York Courts

On May 7, 2019, Representative James Himes (D-Conn) introduced the “Insider Trading Prohibition Act” (H.R. 2534). The proposed legislation would amend the Securities Exchange Act of 1934, 15 U.S.C § 78a et seq. (the “Act”) by inserting a new section that defines the elements of criminal insider trading.

The bill’s objective is to eliminate the ambiguity of the offence as it is conceived under current law. It would also significantly expand the potential scope of criminal liability for insider trading in several ways: first, by eliminating the existing “personal benefit” requirement; second, by expanding the scienter requirement from willful to reckless use of “wrongfully obtained” matpreliminarerial non-public information; and third, by expanding the definition of “wrongfully obtained” information to include stolen, hacked, and fraudulently obtained information.
Continue Reading New Bill Seeks to Bring Clarity to Insider Trading Law