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The V&E Report
Insights in Government Enforcement and Investigations

Don’t Get “Pulled-In”: Marvell Fined by SEC for Failing to Disclose Aggressive Sales Plan

The SEC recently entered into a settlement with Marvell Technology Group, Ltd., based on Marvell’s manipulation of revenue reported in the company’s public statements. Marvell used so-called “pull-ins” — in which the company pulled revenue from future quarters into the current quarter — to mislead investors about the company’s ability to meet its revenue targets.

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Amazon Pitches Facial “Rekognition” Law to Feds

On Wednesday, September 25, at a surprise appearance after a product event in Seattle, Amazon CEO Jeff Bezos revealed that the company’s public policy team is drafting proposed regulations for facial recognition technology, with plans to share them with the federal government. The move comes several months after Amazon publicly proposed ethical guidelines around the use of facial recognition technology, in an effort to nudge national legislative efforts on the topic.

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Commodities in the Crosshairs: CFTC Joins DOJ and the SEC to Target Commodity Traders for Corrupt Practices Abroad

The U.S. Commodity Futures Trading Commission (“CFTC”) is entering the fight against foreign bribery and corruption. That is the clear message from recent announcements as the CFTC has made clear that it wants to join the U.S. Department of Justice (“DOJ”), the Securities and Exchange Commission (“SEC”) and foreign authorities by targeting commodity firms that commit corrupt practices outside the U.S.

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  • 09
  • October
  • 2019

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DOJ’s Civil Fraud Director Addresses Recent FCA Policy Developments

On September 19, 2019, speaking at the Practising Law Institute’s Government Contracts 2019 event, Michael Granston, the Director of the Civil Fraud Division at the Department of Justice (“DOJ”), provided an update on the government’s enforcement activities under the False Claims Act (“FCA”).1 Granston’s comments focused on three key areas of recent DOJ FCA policy: (1) the use of agency guidance documents, (2) the dismissal of qui tam lawsuits by DOJ, and (3) cooperation credits for FCA defendants.

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Proposed Law Seeks to Seal “8-K Trading Gap”

The recently proposed 8-K Trading Gap Act of 2019 seeks to address a perceived loophole in current insider trading laws, creating additional regulation and potential source of insider trading liability for directors and executives. In September 2017, Equifax announced a data breach that exposed the personal information of some 147 million people.

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Nissan Agrees to Pay $16.1 Million to Settle SEC’s Claim of Fraudulent CEO Compensation

Despite never paying any of the compensation at issue and without admitting or denying the allegations, the Nissan Motor Co., Ltd. (“Nissan”) agreed to pay the Securities and Exchange Commission (“SEC”) $15 million to settle a claim that it engaged in a $140 million fraudulent compensation scheme. On Monday, the SEC announced the settlement with Nissan, its former Chief Executive Officer Carlos Ghosn (“Ghosn”), and its former director Greg Kelly (“Kelly”). Ghosn and Kelly agreed to pay the SEC $1 million and $100 thousand, respectively.

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As Pushback Grows in Europe Against Facebook’s Libra, Walmart Considers its own Cryptocurrency

A few weeks ago we wrote about the skepticism Libra, Facebook’s proposed cryptocurrency, faced from U.S. regulators. Since then, Libra’s unpopularity has spread across the Atlantic. Public officials in France, Germany, and the UK have claimed Libra could undermine monetary sovereignty and have begun calling for a public digital currency in lieu of Facebook’s private-backed proposal.

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THE ABC’S OF AB 5—California Passes Legislation to Rein in Gig Economy

Last Wednesday, the California legislature passed bill AB 5, a sweeping measure sure to impact the “gig economy” and any business that likens itself the “Uber of _____.” If signed into law (and the governor has already signaled his intention to sign it), AB 5 would require companies to re-classify as “employees” many workers who are currently classified as independent contractors, so long as they satisfy certain criteria.

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Because the Mafia Doesn’t Issue 8-Ks: DOJ Explains Recent Corporate Policy Changes and Foreshadows Additional Guidance

On September 12, Deputy Assistant Attorney General Miner announced in a speech that the DOJ Criminal Division will consider issuing prosecutorial guidance on how to evaluate companies’ claims that they are unable to pay large criminal fines. If adopted, the new guidance would be the latest of several recent DOJ policy reforms and clarifications aimed at increasing certainty for companies that are the target of white collar enforcement actions.

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Ninth Circuit Decision Underscores Expansive Definition of “Security”

Is an investment a “security” under the federal securities laws if it is made in part for reasons unrelated to investment returns? And can someone who facilitates the investment be liable for securities fraud? In SEC v. Feng1, the Ninth Circuit answered both questions affirmatively – helping to clarify what qualifies as a “security” under – and so who may be covered by – the federal securities laws.

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Lessons Learned: A High-Profile FARA Acquittal at Trial Provides Guidance for Both the Government and Targets of Future Investigations

On September 4, a federal jury took only a few hours to return a verdict of “not guilty” for Washington, D.C. attorney and former White House Counsel Greg Craig in a high-profile trial brought by the Department of Justice’s Foreign Agents Registration Act (“FARA”) Unit and federal prosecutors from the U.S. Attorney’s Office for the District of Columbia. 

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  • 09
  • September
  • 2019

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When Trade Secret Cases “Go Criminal”

At a time when the federal government is stepping up its enforcement of federal trade secret law in an effort to safeguard American intellectual property from national security threats from China and elsewhere, the recent criminal indictment of former Google and Uber executive Anthony Levandowski underscores the potential criminal specter that looms over civil trade secret disputes.

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Where in the World Is Dirty Money Going? FinCEN’s Newest Investigation Unit Targets Global Money Laundering

The Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) recently announced the launch of a Global Investigations Division (“GID”). GID will focus its efforts on implementing targeted investigation strategies to combat money laundering and terrorism financing in domestic and international contexts.

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  • 03
  • September
  • 2019

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For Whom the Statute Tolls: Challenges to FCPA Indictment May Expose Government Vulnerabilities in International Cases

As companies grow and expand their international footprint, their operations are scrutinized with increasing frequency by federal prosecutors. However, recent pre-trial litigation in a FCPA case suggests that one important government tool may be vulnerable to challenge by sophisticated defense counsel, which could stifle the government’s ability to build and bring a criminal case beyond the normal five-year limitations period, provided the defense can show that the government’s mutual legal assistance request to another country was pretextual in nature.

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