2023 Year-in-Review: Developments and Trends in White Collar Enforcement Litigation
The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.
The Securities and Exchange Commission (SEC) and Department of Justice (DOJ) both accelerated their enforcement efforts in 2023, and seem poised to further intensify these efforts in 2024. At the same time, the SEC disseminated new disclosure requirements across sectors, including disclosures related to cybersecurity and artificial intelligence (AI), and renewed its focus on the corporate and social aspects of environmental, social and governance (ESG) guidance. Its Enforcement Division remained focused on litigating high-stakes cases in the digital assets space and expanded its sweep related to off-channel communications.
The DOJ has also charged several cases in the fraud and anti-money laundering space related to digital assets, including the recent trial conviction of Sam Bankman-Fried and the guilty pleas of Binance and its Chief Executive Officer, Changpeng Zhao. In addition, the DOJ made a number of announcements related to guidance and policies concerning corporate criminal enforcement, much of which is focused on fostering a culture of compliance within companies while continuing to pursue actions against alleged individual wrongdoers. The recent adoption of the Foreign Extortion Prevention Act (FEPA), companion legislation to the Foreign Corrupt Practices Act (FCPA), adds a new tool in the DOJ’s arsenal to prosecute the recipients of foreign bribes, closing a notable gap and providing a mechanism to charge the “demand side” of foreign bribery. This new legislation is particularly timely as the DOJ continues to prioritize and remain active in its anti-corruption efforts involving both companies and individuals, including a number of significant FCPA matters in 2023.
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