Over the last year, the CFTC continued to align itself with other, more frequently-lauded enforcement agencies like the U.S. Department of Justice and U.S. Securities and Exchange Commission. But the CFTC also closed out its fiscal year having brought only 49 enforcement actions, nearly 30 percent fewer actions than in FY2016, and obtaining orders totaling approximately $412 million in restitution, disgorgement and penalties, amounting to only one-third of the $1.29 billion garnered in FY2016.
What if everything we think we know about the motivation and decision-making of white-collar criminals is wrong?
In terms of practical impact, the decision in ‘SEC v. Herrera’ appears to expand the scope of materials that may be obtained as a result of actual waiver through disclosure, and further blurs the line between subject matter waiver and actual waiver. Both results unfortunately provide potent new tools for litigants seeking to obtain materials previously considered privileged.
When a complex transaction directed by a CEO or CFO is later deemed criminal and the executive is charged, what exposure could outside counsel face having advised and presumably approved the transaction? Similarly, when working with high-ranking executives at a company, when does outside counsel have an obligation to report and update a company’s board of directors regarding their work for the CEO on behalf of the company?
White-collar attorneys will continue to employ the attorney proffer to advance their clients’ interests in responding to investigations, even while on occasion accepting the consequence of some limited waiver of privilege over the facts they strategically divulge.
Whereas 2017 set some basic guardrails around the ICO market, 2018 will likely see an increase in regulatory activity by multiple agencies, and a deeper engagement with the difficult legal questions posed by ICOs.