MVA White Collar Defense, Investigations, and Regulatory Advice Blog

By Kim Cochran[1] and Frank Schall  In a decision with far-reaching implications for corporate victims of fraud, the U.S. Supreme Court recently held that the Mandatory Victims Restitution Act of 1996 (MVRA) does not entitle victims of certain federal offenses, including wire fraud, to reimbursement for costs incurred conducting investigations and participating in civil or bankruptcy proceedings related to the fraud.

Before Lagos, Many Courts of Appeal Allowed Recovery of Investigation Costs

In Lagos v. United States, 584 U.S. ___ (2018), Sergio Fernando Lagos pleaded ...

By John Fagg, Nader Raja, and Kristen Kenley.  On July 11, 2018, pursuant to a Presidential Executive Order, the Department of Justice announced the formation of a new multi-agency task force on Market Integrity and Consumer Fraud that will focus on combating consumer and market fraud.  Deputy Attorney General Rod Rosenstein, who will chair the new task force, unveiled plans for the initiative at a press conference that brought together top regulators at the Department of Justice, the Securities and Exchange Commission, the Consumer Financial Protection Bureau, and the Federal ...

Financial Regulatory Advice and Response Team members Neil Bloomfield, Ed O’Keefe, Tom Pennington, and Kris Whittaker attended the Prudential Regulation Conference presented by SIFMA and The Clearing House in Washington, D.C.  This year’s conference was focused on the future of prudential regulation, including the new leadership at the prudential agencies.  The conference included insights from the Joseph M. Otting, Comptroller of the Currency, Mark E. Van Der Weide, General Counsel for the Federal Reserve, and Jelena McWilliams, Chairman of the FDIC, among others.   There ...

By Kristina Whittaker[1]. Mick Mulvaney was appointed Acting Director of the Consumer Financial Protection Bureau (Bureau) on November 25, 2017.  His term will end on June 22, 2018, unless the President nominates a Director prior to that date, in which case Mr. Mulvaney will remain as Acting Director until a new Director is confirmed.  During his time as Acting Director, Mr.  Mulvaney has sought to change the priorities and culture of the Bureau, starting by changing its name to align with Title X of the Dodd Frank Act to the Bureau of Consumer Financial Protection.  His recent public ...

By Neil Bloomfield and Kristen Kenley  Double jeopardy prevents criminal defendants from being convicted of the same crime twice.  Res judicata prevents civil litigants from facing repeated claims by an overly aggressive plaintiff. Unfortunately, in the years after the financial crisis financial institutions were essentially unprotected from receiving multi-million dollar demands by multiple regulators for the same conduct.  The financial industry may soon experience a welcome shift from the Government’s burdensome and duplicative practice as policy changes at the ...

On February 12, 2018, the U.S. Securities and Exchange Commission announced an initiative to address undisclosed conflicts of interest by investment advisers in the context of mutual fund share classes. Dubbed the Share Class Selection Disclosure (“SCSD”) Initiative, the program encourages investment advisers to self-report potential violations by June 12, 2018, in exchange for favorable settlement terms.

The Potential Violations

An investment adviser often has several share classes to choose from when investing in a mutual fund for a client. One share class may charge a ...

By Neil Bloomfield and Elena Mitchell.  The potential transition away from LIBOR has raised significant concerns in the financial markets, including whether LIBOR will end in 2021, what may replace it, what fallback language should be included in contracts in the interim, and how transition risks can be managed.  I was fortunate enough to participate in a recent panel entitled “LIBOR and the Potential Replacement Reference Rates: Where Do We Go from Here?” which was held at the University of North Carolina’s Banking Institute on Thursday, March 22, 2018.  The panel was moderated ...

In a series of interviews, speeches and other public releases, OCC Comptroller Joseph Otting has set out a number of priorities, some substantive, some related to how the agency operates.  It is clear that Mr. Otting intends to roll back or “modernize” regulations that have been viewed as burdensome or ineffective by the financial industry.  In addition, he intends to make changes to the agency in ways that pull back on the Washington-centric structure and puts more authority in the hands of local supervisors.   All of these are works in progress and some require action and/or ...

On Feb. 22, 2018, the Securities and Exchange Commission (SEC) issued its first interpretive guidance since October 2011 on public companies’ cybersecurity risk and incident disclosure obligations. Although public companies are not subject to an express obligation to disclose data security threats under federal law or SEC regulations, the latest guidance confirms that “companies nonetheless may be obligated to disclose such risks and incidents.”

The purposes of the SEC’s new guidance are threefold:

1. Reinforce and expand upon the October 2011 guidance;
2. Address the ...

Neil Bloomfield presented at the SIFMA C&L Annual Seminar on March 20, 2018.  Mr. Bloomfield provided an outside counsel perspective on managing large scale litigation and investigations.  The panel focused on incorporating project management techniques from business into the practice of law and innovations in technology and processes that can make the practice more efficient and effective. Mr. Bloomfield presented alongside experts from Integreon and Fidelity Investments.  SIFMA’s C&L Annual Seminar is the premier event for compliance and legal professionals working ...