Cleary Enforcement Watch

News and Analysis Related to Global Enforcement, White-Collar, and Regulatory Trends and Developments

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Last month, Guatemalan President Jimmy Morales effectively shut down the operation of the UN-operated International Commission against Impunity in Guatemala (called by its Spanish initials, “CICIG”) by declining to renew its mandate past its September 2019 expiration date and by barring the head of CICIG, Iván Velásquez, from re-entering the country.  CICIG, a uniquely independent organ of the United Nations (“U.N.”), was created in 2007 to support and assist Guatemalan institutions in identifying, investigating,…
The English High Court has dismissed an application to discharge the U.K.’s first Unexplained Wealth Order which was obtained by the National Crime Agency on February 27, 2018. Since January 31, 2018 a number of U.K. enforcement authorities have been able to apply to the English courts for an Unexplained Wealth Order in circumstances where a person’s assets appear disproportionate to their known income.  Once granted, an Unexplained Wealth Order requires an individual or company…
The £16.4 million fine imposed by the UK Financial Conduct Authority on Tesco Personal Finance plc provides a salutary lesson on the regulatory exposure associated with failing adequately to prepare for and respond to a cyber-attack – one of the FCA’s stated regulatory priorities. The episode illustrates how cybersecurity failures can expose a business not only to increasingly draconian penalties under the EU’s General Data Protection Regulation where personal data is involved (effective from 25…
On September 27, 2018, in remarks delivered at the 5th Annual Global Investigations Review New York Live Event, Deputy Assistant Attorney General Matthew S. Miner reported on the accomplishments of the Department of Justice (“DOJ”) over the course of the last twelve months.  Importantly, he also discussed recent changes to the DOJ’s policies on prosecution of business organizations and how those changes have been implemented.[1]  Miner highlighted the DOJ’s efforts to incentivize and provide…
On September 27, 2018, the Commodity Futures Trading Commission (CFTC) and Securities and Exchange Commission (SEC) filed parallel actions in federal court against an internet dealer that sold “contracts for difference” (CFD) based on securities and commodities margined with bitcoin.  The actions, which were assisted by the Federal Bureau of Investigation and the Department of Justice, signal continued coordination among federal agencies to police market activity involving financial transactions in cryptocurrencies.…
On September 26, 2018, a federal court in the District of Massachusetts found that virtual currencies are a commodity under the Commodity Exchange Act, 7 U.S.C. § 1 et seq, (“CEA”). This marks the second time that a court has accepted the Commodity Futures Trading Commission’s (“CFTC”) position and upheld the agency’s authority to regulate unleveraged and unmargined spot transactions in virtual currency under the agency’s anti-fraud and manipulation enforcement authority.  Most notably, however, the…
On July 31, 2018, in response to a review of the Bribery Act 2010 (the “Bribery Act”) conducted by the UK Government, the Law Society, the City of London Law Society and the Fraud Lawyers Association published a joint response (the “Joint Response”) to the UK Government’s call for evidence on the enforcement and effectiveness of the legislation.[1]
Over the past year, the U.S. Securities and Exchange Commission (“SEC”) has increasingly scrutinized initial coin offerings (“ICO”) and certain digital assets.  On September 20, 2018, the SEC’s Enforcement Division co-Director, Stephanie Avakian, gave a speech in which she addressed the Division’s approach to dealing with these new forms of tradeable assets.  This speech came only days after the SEC settled its first case charging an unregistered broker-dealer for facilitating the sale of digital tokens…
On September 14, 2018, a federal judge in the Southern District of New York certified as a class action a securities fraud suit against hedge fund Och-Ziff Capital Management Group LLC (“Och-Ziff”) and two of its executives.[1]  Shortly after the decision certifying the class, the parties informed the court that they had reached an agreement in principle to settle the case, which had gone forward on the basis of allegations that Och-Ziff had…
On Tuesday, September 11, 2018, Judge Raymond J. Dearie of the Eastern District of New York issued a decision holding that Initial Coin Offerings (“ICO”) may qualify as securities offerings and therefore be subject to the criminal federal securities laws.  This ruling came as two U.S. regulators—the Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”)—announced separate actions under securities laws against companies engaged in the cryptocurrency marketplace, including the sale of…