Buckley Commentary & Analysis

"Supreme Court will likely decide whether courts can order disgorgement in SEC enforcement proceedings" by Olivia A. Rauh

The Supreme Court will hear arguments on March 3 in a case that will likely determine whether the SEC has statutory authority to seek disgorgement in enforcement actions, and whether the courts have authority to order it.

The SEC’s authority to seek disgorgement was virtually...

"2020 examination priorities: OCIE pushes again on information security" by Ian Acker

The Securities and Exchange Commission’s Office of Compliance Inspections and Examinations announced its annual examination priorities for...

"DOJ may face difficulties extraditing remaining defendants in international insider trading ring" by Bradley A. Marcus

The ongoing prosecution in Manhattan of seven defendants in an international insider trading scheme will test the government’s ability to bring international defendants within U.S. jurisdiction. While the government has, at this point, secured two guilty pleas and a conviction, it is unclear...

"The first days: Setting the tone for a successful internal investigation" by Bree Murphy

An internal discovery or a criminal or civil regulator’s inquiry that sparks an internal investigation thrusts in-house counsel into the uncomfortable and complex role of exploring potential wrongdoing inside the company’s walls. These are high-stakes matters in which the range of outcomes is...

"Foreign defendants beware of 'outside the United States' sentencing enhancements" by Paige Ammons

Foreign citizens and companies criminally prosecuted in the United States may face an unwelcome surprise if convicted ─ a higher sentence due solely to the fact that they operated in a foreign country. A little known enhancement in the Federal Sentencing Guidelines governing fraud offenses...

"Congress may restore SEC’s disgorgement power" by Mehul Madia

Congress is considering legislation that would clarify and significantly expand the Securities and Exchange Commission’s disgorgement powers, two years after the Supreme Court curtailed them in ruling that they were penalties subject to a five-year statute of limitations. The decision in...

"Apropos of nothing: The possible demise of the Fifth Circuit post-sentencing objection" by Elizabeth R. Bailey

Should the courts penalize criminal defendants on appeal when their attorneys fail to utter magical (but duplicative) words at the end of sentencing? The U.S. Court of Appeals for the Fifth Circuit continues to require a formal post-sentencing objection to the length of a sentence to preserve...

"Why doesn’t McDonnell apply to foreign bribery?" by Nadav Ariel

Two circuit courts recently concluded that the Supreme Court’s McDonnell decision, which limited the scope of acts that constitute domestic bribery, does not apply in cases alleging bribery of foreign officials. The immediate consequence of the decisions from the U.S. Court of Appeals...

"Increased government demands for de-confliction will impede internal investigations" by Lauren R. Randell

The Department of Justice recently faced criticism for getting too involved in an internal investigation ostensibly conducted by a company’s external lawyers, with the government telling the company’s lawyers which employees to interview and what questions to ask them. But less attention has...

"Is the CFPB bound by its non-binding guidance? The implications of the PHH due process decision for TRID and other CFPB rules" by Brandy A. Hood and Steven R. vonBerg

Predictability and certainty are crucial components of the consumer finance market. Consumers crave it, as do industry participants. A common understanding of legal requirements promotes uniformity in the application of consumer protections and allows lenders, servicers, systems providers,...