Compliance Prevents Corporate Casualties in Trade Wars

America and China Confrontation

Tariffs are not the only weapon of retaliation countries may wield in a trade war.  Governments can pressure trade adversaries at the bargaining table by opening other fronts, such as limiting foreign investment, halting drug enforcement cooperation, or, of particular concern to the corporate world, scrutinizing companies doing business within their jurisdictions.  What does this mean?

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Does DOJ Approve Of Your Messaging App?

The Department of Justice released new Enforcement Policy for the Foreign Corrupt Practices Act (FCPA). The revisions include a new provision that many believe impairs the use of instant messaging software and other third-party messaging apps by employees. In order to receive a declination and full credit for cooperating with investigators under the Enforcement Policy, U.S. companies must appropriately retain business records by “prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications.”

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Fourth Amendment Meets 21st Century

In Carpenter v. United States, the Supreme Court protected cell site location data. Now “the Government must generally obtain a warrant supported by probable cause before acquiring such records.” Read here about the decision and its implications for organizations, particularly technology providers. The article is written by Squire Patton Boggs attorneys Tara Swaminatha, Robin Campbell, Tom Zeno, and Katy Spicer.

 

 

 

South Africa FIC Publishes Financial Crime Typologies

South Africa’s regulator, the Financial Intelligence Centre (“FIC”), oversees receipt and analysis of financial intelligence as well as its dissemination.  FIC recently released a booklet that provides “insight on some of the methods criminals use to abuse the financial system.” The booklet provides nine different case studies, including one about rhinoceros poaching.

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A Lesson: Follow Through With Encryption Plan

Even the best laid plan for data security requires follow through. A cancer center was penalized $4.3 million by the government for failing to complete its encryption plan for devices.  The decision is instructive even for companies not specifically required to protect data under government regulation. Tom Zeno and Elliot Golding of Squire Patton Boggs discuss the case and its lesson. Go here for the article.

 

Supreme Court Resolves Constitutionality of SEC’S ALJ Appointments — Now What?

Last week, the United States Supreme Court settled a circuit split regarding the constitutionality of the appointment of Administrative Law Judges (“ALJs”) by the Securities and Exchange Commission (“SEC” or the “Commission”).  In Lucia v. SEC, the Court held that the Commission’s five ALJs are “officers” subject to the Constitution’s Appointments Clause, which requires officers to be appointed by the President, “Courts of Law,” or “Heads of Departments.”  And because the SEC’s ALJs were hired by the agency’s staff, the Court reasoned, their appointments were unconstitutional.  The SEC reacted quickly, immediately issuing an order staying all pending administrative proceedings, the constitutionality of which is now unclear.

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Circuits Split About Border Search of Electronic Devices

The Supreme Court allows routine border searches because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” Some level of suspicion is required only when a search infringes the dignity and privacy interest of the persons being searched. Circuits are now split about whether reasonable suspicion is needed to justify a forensic search of information stored on an electronic device. Continue Reading

Serious Fraud Office: Apparent Renewed Faith

Serious Fraud OfficeIn the first part of this two-part post, we looked at some of the infamous cases that may explain repeated attempts by Theresa May, first as Home Secretary and later as Prime Minister, to dismantle the SFO, see here. Our attentions now turn to the important role the SFO continues to play in combatting corruption, fraud, and other forms of white collar crime, especially now its coffers have been boosted and Lisa Osofsky has been appointed the new Director.

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Serious Fraud Office: Boost to Coffers Is Vote of Confidence

Serious Fraud OfficeThe UK’s Serious Fraud Office (“SFO”) recently received an unexpected, yet significant, increase in baseline funding for the 2018-2019 fiscal year. The funding boost comes in spite of Prime Minister Theresa May’s previous efforts, following several high-profile prosecutorial setbacks for the SFO, to fold it into the UK’s National Crime Agency (“NCA”). Relatedly, a new funding arrangement addresses prior concerns of the Organization for Economic Cooperation and Development (“OECD”) about potential conflicts of interest. It is probable that these changes will enable the SFO to better develop and retain internal talent.  These developments should come as good news to Lisa Osofsky, the newly appointed Director of the SFO who will begin her renewable five year term on September 3, 2018.

In this two-part post, we look first at the alleged chequered history of the SFO, seemingly causative of attempts by the government over time to disband it, before then focusing on a remarkable turnaround in its fortunes, both figuratively and literally.

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