Government Investigations & White Collar Crime (J)


The Government Investigations & White Collar Crime Specialty Group has been activated in response to extensive interest exhibited by TAGLaw members, especially in the U.S. and particularly since the passage of the Sarbanes Oxley legislation (also known as SARBOX or SOX.)

Meet the Co-chairs - TAGLAW

Hines, Melanie Ann
Berger Singerman LLP

Meet the Co-chairs - TIAG

Hemming Morse, LLP

Government Investigations & White Collar Crime (J)

Author: Alejandro Sobarzo Hadad; Kuri Breña, Sánchez Ugarte y Aznar

The Principles of Federal Prosecution of Business Organizations in the Justice Manual of the US Department of Justice provide that the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision, constitutes one of the factors that prosecutors would consider in conducting an investigation, determining whether to bring charges, and negotiating plea or other agreements. In accordance with the laws comprising the so-called National Anticorruption System in Mexico, whether a corporation has in place an integrity policy is one of the mitigating factors to be taken into consideration by the authorities in the imposition of sanctions and determining corporate liability.

Read more: How effective is our Compliance Program? What's at stake?

On November 5, 2019, the U.S. Department of Justice (DOJ) Antitrust Division announced the establishment of a Procurement Collusion Strike Force (PCSF) to deter, detect, investigate, and prosecute criminal schemes that undermine the integrity of the government procurement process. One of the highlights of the PCSF is to reprioritize prosecutions of cartel conduct after a several-year decline. In the announcement, Assistant Attorney General Makan Delrahim emphasized that criminal antitrust violations such as bid-rigging, price-fixing, and market allocation distort the free market and harm customers with high prices and lower quality goods and services.

Read more: Department of Justice Announces Strike Force to Combat Antitrust Crimes in Government Procurements

The Criminal Division of the U.S. Department of Justice recently issued an updated guidance document on the Evaluation of Corporate Compliance Programs. The new document, which significantly expands on the prior version issued in early 2017, largely follows the structure of its predecessor but provides much more detail than ever before. Indeed the new version is more than double the length of the prior version.

Read more: Does Your Corporate Compliance Program Meet the DOJ’s Expectations? New Guidance Serves as a...

Authors: Jonathan Feld, Ferdose al-Taie & Jane Gerber

On January 19, 2019, federal Magistrate Judge Kandis Westmore of the Northern District of California denied the Government’s application for a search warrant that sought:

  1. “all digital devices” present at a California residence; (Order at 3), and
  2. “any individual present at the time of the search to press a finger (including thumb) or utilize other biometric features…for the purposes of unlocking the digital devices found in order to permit a search of the contents,” (Order at 1).

The request for the “use of biometrics” was stunning. Magistrate Judge Westmore denied the Government’s initial request, but invited the Government to submit a new search warrant. A day later when the Government submitted an amended application, it omitted the request to use biometrics. The court granted that amended application. Since the Government’s application named only two suspects in its affidavit, the Government’s request to compel any other individual present at the time of the execution of the search warrant to unlock their digital device(s) was too expansive.

Read more: Biometrics and Search Warrants: The Intersection of Your iPhone and the Fourth and Fifth Amendments

Authors: Jason Ross, Amelia Marquis, Jonathan Feld

In 2015, the Department of Justice (“DOJ”) announced a more aggressive stance requiring individual accountability in civil and criminal investigations of corporate misconduct. This policy change, set forth in a memorandum issued by Deputy Attorney General Sally Quillian Yates (the “Yates Memo”), announced that companies seeking cooperation credit were required (1) to undertake their own investigations, (2) to identify all culpable individuals, and (3) to produce material facts or employee statements related to the individuals’ involvement in the corporate violations. Now, the DOJ is lessening this burden and shifting back towards its pre-Yates Memo discretionary policy.

Read more: Bringing Back Discretion: DOJ Announces Revisions to Current Policy Concerning Corporate Misconduct