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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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Walmart Doesn’t “Save Money,” But It May “Live Better” After DOJ Agrees to Significant Concessions to Narrow Scope of its Corporate Monitorship

In a significant departure from previous practice, the Department of Justice (“DOJ”) imposed a corporate monitor on a company even after it engaged in extensive remedial measures and enhanced its compliance functions, but DOJ also agreed to narrow the scope, obligations and term of the corporate monitorship in what is the most meaningful example yet of how DOJ intends to implement its new policy on corporate monitors.

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Clarity for Crypto: Commissioner Peirce wants the SEC to Refine Fintech Regulation

On May 9, 2019, SEC Commissioner Hester M. Peirce delivered a speech via video conference to the Securities Enforcement Forum lamenting the Commission’s failure to develop meaningful regulation in the realm of cryptocurrency and emphasizing the need for clear regulation that would be meaningful and not overly burdensome. Commissioner Peirce’s address highlighted several grey areas in the current regulatory landscape regarding cryptocurrency.

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Investigation Outsourcing: When Do Companies Become Arms of the State?

A recent decision by a district judge in the Southern District of New York demonstrates that when a company’s outside counsel conducts an investigation in connection with a government investigation of the company, the Government’s involvement in shaping, directing and relying upon that investigation will be closely scrutinized.1 If the Government cannot demonstrate that it has not simply “outsourced” its investigative function, the company and its outside counsel may be seen as tools of the Government and arms of the State.

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  • 10
  • April
  • 2019

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Kokesh costs SEC nearly $1 Billion; DOJ and Congress React

In 2017, the SEC’s enforcement power faced a setback when, in Kokesh v. SEC,1 the Supreme Court curtailed its ability to seek disgorgement outside the five-year statute of limitations period for civil penalties.2 This was a blow to the agency because its Enforcement Division had relied heavily on its disgorgement power as a means to deter companies from wrongdoing by reclaiming all ill-gotten profits that result from it.

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