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The V&E Report
Insights in Government Enforcement and Investigations

SEC Enforcement Report Signals Increased Enforcement, Lingering Limitations from Kokesh

Last week on November 6, 2019, the SEC Enforcement Division released its annual report on the Commission’s enforcement activities for the fiscal year. This article discusses prominent takeaways from the report, and what these and other findings mean for companies under the SEC’s jurisdiction.

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DOJ’s FCPA Reach Over Foreign “Agents”

The Criminal Information against two former executives of Unaoil, Inc. was unsealed on October 30, 2019, laying out the U.S. government’s case against them for facilitating bribes on behalf of companies in foreign countries in exchange for oil and gas contracts.1 Former CEO Cyrus Ahsani and former COO Saman Ahsani, both citizens of the United Kingdom, pled guilty to conspiracy to violate the Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. § 78dd-1 et seq.2

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Supreme Court to Decide Validity of SEC Disgorgement Actions

On November 2, 2019, the United States Supreme Court granted the petition for a writ of certiorari in Liu v. SEC to address whether the Securities and Exchange Commission (the “SEC”) has authority to recover disgorgement of ill-gotten profits from violators of the federal securities laws.This decision comes after the Ninth Circuit upheld the District Court’s order, which awarded summary judgment to the SEC with respect to its claim that Liu and his wife committed securities fraud by raising approximately $27 million from Chinese investors under the EB-5 Immigrant Investor Program in 2018.2

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U.K.’s SFO Recognizes Expectation that Compliance Functions Will be Insulated from Routine Cost Cutting Pressures

Sarah Lawson, the General Counsel of the U.K.’s Serious Fraud Office (“SFO”), recently emphasized that corporate compliance functions must be well resourced and that the SFO expects such programs should be insulated from routine cost-cutting pressures. This expectation parallels the U.S. Department of Justice (“DOJ”)’s long-standing focus on corporate compliance programs and its own recent focus on ensuring that compliance functions are provided with sufficient resources.

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Data Without Borders: The U.S. and UK Sign CLOUD Act Agreement Making it Easier to Gather Electronic Evidence

The United States and the United Kingdom recently entered the first ever CLOUD Act Agreement, which aims to streamline the process by which either government can collect electronic evidence located in the other country. Under the agreement, designated authorities from the U.S. and UK will be able to issue orders for the collection of electronic data directly to covered providers in the other country.

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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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