Expert Analysis

• Assessing Ruling On SEC Industry Bars In Post-Jarkesy World

  

  According to a D.C. federal court in Sztrom v. U.S. Securities and Exchange Commission, the U.S. Supreme Court's 2024 decision in SEC v. Jarkesy did not eliminate the commission's ability to pursue industry bars through administrative follow-on proceedings, a major blow for future Article 3 challenges — so long as it stands, say attorneys at Venable.

• How DOJ Is Rethinking Corporate Crime Prosecution Tactics

  

  Recent statements from the Justice Department seem to indicate an incremental shift away from relying on collective employee knowledge when prosecuting corporate crime, and from exploring the bounds of case law that has not been a model of clarity, say attorneys at Covington.

• 2nd Circ. Kazakh Ruling Clarifies RICO Rule, FSIA Exception

  

  The Second Circuit's recent Yerkyn v. Yakovlevich ruling, dismissing a Racketeer Influenced and Corrupt Organizations Act claim, demonstrates that RICO's domestic injury requirement is a merits question, and reaffirms the Foreign Sovereign Immunities Act's commercial activity exception, says Brant Kuehn at Greenspoon Marder.

• Sentencing Amendments Could Spell Paradigm Shift

  

  Three of the U.S. Sentencing Commission’s recently proposed guideline amendments would have an immediate and dramatic impact on economic offenders, resulting in significantly fewer defendants receiving sentences of imprisonment and meaningfully addressing congressional directives, say Mark Allenbaugh at SentencingStats.com and Doug Passon at Doug Passon Law.

• How Banks Can Apply FinCEN Beneficial Ownership Relief

  

  A recent Financial Crimes Enforcement Unit order limiting the circumstances under which banks should identify and verify beneficial owners may allow banks to tailor their approach to verification compliance, but only after reviewing customer due diligence policies and evaluating alignment with their risk profiles, say attorneys at Cleary.

• Series

  Volunteering With Scouts Makes Me A Better Lawyer

  

  Serving as an assistant scoutmaster for my son’s troop reaffirmed several skills and principles crucial to lawyering — from the importance of disconnecting to the value of morality, says Michael Warren at McManis Faulkner.

• Series

  Law School's Missed Lessons: In Court, It's About Storytelling

  

  Law school provides doctrine, cases and hypotheticals, but when lawyers step into the courtroom, they must learn the importance of clarity, credibility, memorability and preparation — in other words, how to tell simple, effective stories, say Nicholas Steverson and Danielle Trujillo at Wheeler Trigg, and Lisa DeCaro at Courtroom Performance.

• Why SDNY May Be Dusting Off The Financial Kingpin Statute

  

  The Southern District of New York’s recent fraud indictments against executives of bankrupt companies Tricolor and First Brands have seemingly revived the Continuing Financial Crimes Enterprise statute, and if the cases succeed, prosecutors across the country will have ample reason to reach for this long-dormant tool, say attorneys at Lankler Siffert & Wohl.

• Charges Signal Tougher Stance On Execs' Bankruptcy Fraud

  

  The recent criminal charges stemming from the Tricolor and First Brands bankruptcy cases may represent a sea change in the willingness of federal prosecutors to use bankruptcy fraud as a basis to charge corporate officers more frequently alongside traditional statutes such as wire fraud, bank fraud and money laundering, say attorneys at White & Case.

• A Tale Of 2 Self-Disclosure Policies: How SDNY, DOJ Differ

  

  Though the U.S. Attorney’s Office for the Southern District of New York’s recently announced corporate enforcement and voluntary self-disclosure policy shares many similarities with that of the U.S. Department of Justice, the two programs differ in meaningful ways, including subject matter scope and timeline to declination, say attorneys at Wiley.

• Aligning Microsoft Tools With NYC Bar AI Recording Guidance

  

  The New York City Bar Association’s recently issued formal opinion, providing ethical guidance on artificial intelligence-assisted recording, transcription and summarization, raises immediate questions about data governance and e-discovery for companies that use Microsoft 365 and Copilot, say Staci Kaliner, Martin Tully and John Collins at Redgrave.

• 11th Circ. NextEra Ruling Broadens Loss Causation Standard

  

  The Eleventh Circuit's recent Jastram v. NextEra Energy decision significantly expands the loss causation standard at the motion-to-dismiss stage and may lead to suits predicated on more tenuous connections between company disclosures and alleged misstatements, say attorneys at Sidley.

• A Single DOJ Corporate Enforcement Policy Raises Questions

  

  The U.S. Department of Justice's soon-to-be-released uniform corporate criminal enforcement policy could address the challenges raised by the current decentralized approach, but it will need to answer a number of potential questions amid scant details, say attorneys at Pillsbury.

• Navigating Exclusion Decisions After SEC's No-Action Change

  

  Following the U.S. Securities and Exchange Commission's November changes to the Rule 14a-8 no-action letter process, shareholder proponents have turned to litigation if companies excluded their proposals under the new framework, with three recent cases offering useful lessons for companies navigating exclusion decisions this proxy season, say attorneys at Cleary.

• 5 Different AI Systems Raise Distinct Privilege Issues

  

  A New York federal court’s recent U.S. v. Heppner decision, holding that a defendant’s use of Claude was not privileged, only addressed one narrow artificial intelligence system, but lawyers must recognize that the spectrum of AI tools raises different confidentiality and privilege questions, says Heidi Nadel at HP.