Nowell D. Bamberger

Nowell D. Bamberger’s practice focuses on cross-border contentious disputes matters, including litigation and criminal and regulatory investigations.

Firm/Organization: Cleary Gottlieb Steen & Hamilton LLP

Blogs: Cleary Enforcement Watch

Latest Articles

Cleary Enforcement Watch

United Kingdom and United States Governments Sign First-Ever CLOUD Act Agreement

By Jonathan S. Kolodner, Nowell D. Bamberger, Rahul Mukhi, Alexis Collins & Kal Blassberger

October 22, 2019

On October 3, 2019, the governments of the United Kingdom and United States signed the first-ever executive agreement governing cross-border data requests (the “Agreement”) pursuant to the US Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”).[1] As contemplated by the CLOUD Act, the Agreement provides a mechanism for the governments to access and share data stored abroad by electronic communications services providers (“CSP”) in their respective countries in a timely manner. The…

Cleary Enforcement Watch

SEC and CFTC Chairs Sign Enhanced Multilateral Memorandum of Understanding Expanding Cross-Border Enforcement Cooperation

By Breon S. Peace, Nowell D. Bamberger, Alex Janghorbani, Martine B. Forneret & Alison Bitterly

June 3, 2019

On May 15, 2019, the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Commodity Futures Trading Commission (“CFTC”) announced that they entered into an Enhanced Multilateral Memorandum of Understanding Concerning Consultation and the Exchange of Information (“Enhanced MMoU”) under the auspices of the International Organization of Securities Commissions (“IOSCO”), along with nine other international financial regulators.[1] Both the SEC and CFTC are already signatories to IOSCO’s predecessor memorandum of understanding with 121…

Cleary Enforcement Watch

CFTC Division of Enforcement Releases First Public Enforcement Manual

By Breon S. Peace, Robin M. Bergen & Nowell D. Bamberger

May 13, 2019

On May 8, 2019, the Division of Enforcement of the Commodity Futures Trading Commission released an Enforcement Manual – the first public document of its kind from the Division. Though the Manual does not reveal any significant shifts in policy, it will undoubtedly serve as an important resource for individuals and entities dealing with CFTC enforcement actions. The Division’s decision to publish an enforcement manual continues a trend of providing more public guidance regarding the…

Cleary Enforcement Watch

SDNY Judge Finds Government “Outsourcing” of Investigation to External Counsel Runs Afoul of Fifth Amendment

By Breon S. Peace, Victor L. Hou, Jennifer Kennedy Park, Rahul Mukhi & Nowell D. Bamberger

May 7, 2019

On May 2, 2019, the United States District Court for the Southern District of New York issued an important decision delineating the boundaries between conducting a proper internal investigation and acting as an arm of the government. For the government, the consequences of “outsourcing” an investigation to a company and its counsel could be exclusion of evidence collected as a result of that internal investigation, including statements made by a company employee in an interview,…

Cleary Enforcement Watch

CFTC Enforcement Division Issues New Advisory on Self-Reporting and Cooperation

By Nowell D. Bamberger, Alex Janghorbani & Samantha Del Duca

March 15, 2019

On March 6, 2019, the U.S. Commodity Futures Trading Commission (“CFTC”) Enforcement Division released an advisory (the “Advisory”) on self-reporting and cooperation for violations of the Commodity Exchange Act (“CEA”) that involve foreign corrupt practices.[1] The Advisory lays out guidelines for companies or individuals “not registered (or required to be registered) with the CFTC” to receive significant cooperation credit for voluntarily and timely disclosing CEA violations involving foreign corrupt practices.[2] Indeed,…

Cleary Enforcement Watch

CFTC Issues First Whistleblower Award Originating From Both a Related Action and a Company Outsider

By Jennifer Kennedy Park, Nowell D. Bamberger, Alex Janghorbani & Jim Wintering

March 11, 2019

On March 4, 2019, the Commodity Futures Trading Commission (“CFTC”) announced a whistleblower award of over $2 million to an individual—unaffiliated with the company the CFTC charged—for providing expert analysis in conjunction with a related action instituted by another federal regulator. While the Securities and Exchange Commission, which possesses a similar whistleblower award regime,[1] has previously issued awards to multiple claimants for both related actions[2] and to company outsiders,[3] this is the…

Cleary Enforcement Watch

U.S. Subpoena Fails to Secure the Production of Witness Statements and Disclosed Documents in English Proceedings

By Nowell D. Bamberger, Sunil Gadhia, James Brady & Frances Carpenter

February 19, 2019

On 12 February 2019, the English High Court issued a judgment in proceedings related to the takeover of Autonomy Corporation Limited (now ACL Netherlands BV) by the Hewlett-Packard group in 2011. The question before the Court was whether a U.S. grand jury subpoena served on Hewlett Packard Enterprise (the U.S. parent company of the claimants) required certain documents received by the claimants solely through disclosure in English High Court litigation, as well as witness statements…

Cleary Enforcement Watch

Court Holds That 5th Amendment Self-Incrimination Privilege Precludes Compelling Fingerprint or Facial Recognition Access to Digital Devices

By Nowell D. Bamberger, Melissa Gohlke & Sameer Jaywant

January 23, 2019

On January 10, 2019, a Magistrate Judge in the Northern District of California issued an order denying an application for a search warrant that would have compelled any individual present at the premises to be searched to unlock their digital devices using biometric features, such as thumb prints and facial scans. The order is notable in that the search warrant was not rejected on Fourth Amendment grounds, but rather on the grounds that requiring a…

Cleary Enforcement Watch

First Ever Criminal Bank Secrecy Act Charge Brought Against U.S. Broker-Dealer

By Paul Marquardt, Nowell D. Bamberger, Patrick Fuller & Michael G. Sanders

January 7, 2019

On December 19, 2018, the United States Attorney’s Office for the Southern District of New York (the “USAO”) announced criminal charges against and entered into a deferred prosecution agreement (the “DPA”) with Central States Capital Markets, LLC (“CSCM”), a Kansas-based broker-dealer, under the Bank Secrecy Act (the “BSA”).[1] The charge was for a felony violation of the BSA, which consisted of CSCM’s willful failure to file a suspicious activity report (“SAR”) regarding the…

Cleary Enforcement Watch

Virtual Currencies, Manipulation, Cooperation, and More: CFTC Enforcement Division’s 2018 Annual Report

By Nowell D. Bamberger, Robin M. Bergen & Emily Michael

November 26, 2018

On November 15, 2018, the Division of Enforcement (the “Division”) of the U.S. Commodity Futures Trading Commission (“CFTC”) released its Annual Report on the Division of Enforcement (the “Report”), highlighting the enforcement division’s recent initiatives and reinforcing its focus on cooperation and self-reporting. The Report provides a succinct overview of the Division’s enforcement priorities over the last year, discusses its overall enforcement philosophy, sets out key metrics about the cases brought in the last year,…

Nowell D. Bamberger

United Kingdom and United States Governments Sign First-Ever CLOUD Act Agreement

SEC and CFTC Chairs Sign Enhanced Multilateral Memorandum of Understanding Expanding Cross-Border Enforcement Cooperation

CFTC Division of Enforcement Releases First Public Enforcement Manual

SDNY Judge Finds Government “Outsourcing” of Investigation to External Counsel Runs Afoul of Fifth Amendment

CFTC Enforcement Division Issues New Advisory on Self-Reporting and Cooperation

CFTC Issues First Whistleblower Award Originating From Both a Related Action and a Company Outsider

U.S. Subpoena Fails to Secure the Production of Witness Statements and Disclosed Documents in English Proceedings

Court Holds That 5th Amendment Self-Incrimination Privilege Precludes Compelling Fingerprint or Facial Recognition Access to Digital Devices

First Ever Criminal Bank Secrecy Act Charge Brought Against U.S. Broker-Dealer

Virtual Currencies, Manipulation, Cooperation, and More: CFTC Enforcement Division’s 2018 Annual Report

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