Yesterday, the full House of Representatives approved H.R. 2534, otherwise known as the Insider Trading Prohibition Act.  If passed by the Senate and signed by the President, this legislation would mark an important milestone in insider trading jurisprudence.  For decades, the Securities and Exchange Commission (“SEC”) and Department of Justice (“DOJ”) have pursued insider trading violations through general anti-fraud provisions, which has resulted in extensive judge-made law and ambiguity as to when actors will be…

On November 6, 2019, the Supreme Court will hear oral argument for Retirement Plans Committee of IBM v. Jander to expand on its “more harm than good” pleading standard articulated in Fifth Third Bancorp v. Dudenhoeffer.  Both Dudenhoeffer and Jander deal with employee stock ownership plans (ESOPs), retirement plans which primarily invest in the stock of the company that employs the plan participants.  In Dudenhoeffer, the Supreme Court found that Congress has encouraged the…

This is a follow-up to our September 13, 2019 post discussing the DOJ guidance on corporate claims of inability to pay. On Tuesday, October 8, 2019, the Department of Justice provided guidance on how its prosecutors should evaluate claims of corporate poverty.  This comes on the heels of Deputy Assistant Attorney General Matthew Miner’s comments last month suggesting that further guidance on corporate poverty claims was forthcoming.  The DOJ’s memo sets forth a framework for…

On September 12, 2019, Deputy Assistant Attorney General Matthew Miner signaled that the Department of Justice may provide further guidance to prosecutors—and companies—on how to evaluate claims of corporate poverty.  In a speech at the University of Texas School of Law’s 6th Annual Government Enforcement Institute,  Miner stated that the DOJ has been considering the issuance of “concrete guidance or factors to consider” to assist prosecutors in their evaluation of companies who claim that they…

John Kapoor’s fate continues to rest in the hands of jurors in the District of Massachusetts. On April 5, 2019, both the United States and defense counsel concluded their closing arguments in USA v. Babich et. al., No. 1:16-cr-10343, a case where the Government alleged that Kapoor, the founder and former Chairman of the Board of Insys Therapeutics, was instrumental in Insys’ scheme to bribe doctors to overprescribe Subsys, an under-the-tongue fentanyl-based painkiller approximately 100…

On January 28, 2019, the Department of Justice announced that a 13-count indictment against Chinese telecommunications conglomerate Huawei Technologies Co. Ltd. and various affiliated parties was unsealed earlier that day.  Huawei is charged with bank fraud, wire fraud, violations of the International Emergency Economic Powers Act, obstruction of justice, and various related conspiracy charges. All charges in the indictment stem from Huawei’s alleged long-standing ploy to deceive financial institutions and the U.S. Government with respect…