Government Investigations Team Insights - January 2021

AGG’s Government Investigations Team Insights provides periodic updates covering legal and regulatory topics.

In this edition, we cover last week’s Supreme Court arguments over the scope of the FTC’s authority to obtain money damages, new FTC powers granted within the Consolidated Appropriations Act, recent antitrust criminal indictments of employers involving wage suppression, risk mitigation strategies for companies facing increased antitrust oversight, and the SEC’s newly granted statutory authority to seek disgorgement in civil enforcement cases.

FEATURED ARTICLES


Supreme Court Hears Oral Argument Over FTC’s Section 13(b) Authority

By: Theresa Y. Kananen, Edward A. Marshall, and Morgan E. M. Harrison

On January 13, 2021, the United States Supreme Court heard an oral argument in a pivotal challenge to the Federal Trade Commission’s (FTC) historic practice of obtaining monetary damages under a statutory provision that, on its face, allows for only injunctive relief. Read More >

New Frontiers for the FTC in Healthcare Following the Consolidated Appropriations Act

By: Theresa Y. Kananen and Edward A. Marshall

On December 27, 2020, the Consolidated Appropriations Act (CAA) became law, garnering attention nationwide for the economic stimulus components necessitated by the ongoing pandemic. Less publicized, however, were the provisions of the over 2,000-page bill that contained a new mission and some new muscle for the Federal Trade Commission (FTC). Read More >

Employers Beware: Recent Criminal Antitrust Cases Involving Wage Suppression and No-Poach Agreements

By: Jeffrey S. Jacobovitz

The Department of Justice Antitrust Division (DOJ) has recently announced two indictments alleging criminal antitrust violations against employers involving wage negotiation and no-poach theories. The cases, which according to the DOJ, constitute per se violations of the Section 1 of the Sherman Act, involve allegations related to employee hiring and compensation decisions. They indicate an evolution of what the Government believes constitutes criminal anticompetitive conduct and illustrate a focus on the healthcare industry. Under the new Biden Administration, investigations related to this type of conduct will likely increase. Read More >

Risk Mitigation for Companies Facing Increased Antitrust Oversight in a Post-Pandemic Environment

By: Tenley A. Carp and William P. Olsen

Since March 2020, as a result of the COVID-19 pandemic, many businesses have been forced, by local, state, and federal orders, and/or economic circumstances, to alter, reduce, or cease operations. As the business landscape changed nearly overnight, companies were forced to make hard choices about the allocation of expenditures on every aspect of their business including personnel, rent, and utilities — and the expenditure of compliance-related expenses was no exception. Corporate compliance departments in business sectors hardest hit by the COVID-19 pandemic were forced to trim compliance-related expenses, consider budget cuts, forgo filling open positions and delay planned investments in forensic technology, all of which raise concerns about the potential for fraud, waste, and abuse. The cutbacks to compliance departments in combination with increased government enforcement actions may be a “perfect storm” for companies that have not maintained a strong level of oversight in the past year. As a result, as companies come out of the pandemic, they may be particularly vulnerable to government fines, penalties, and sanctions – particularly in the antitrust area. Read More >

Congress Confirms SEC's Disgorgement Power: Recovery for Investors or Revenue for Government?

By: Adriaen M. Morse Jr. and Cory C. Kirchert

Tucked into the 2021 National Defense Authorization Act (NDAA) passed over a presidential veto on January 1, 2021, on page 1,238 of the 1,480-page bill, was a modification to the Securities Exchange Act of 1934 (Exchange Act) that constitutes a response to a couple of recent Supreme Court cases that had limited the U.S. Securities and Exchange Commission’s (SEC) ability to obtain disgorgement from defendants in enforcement actions. Prior to the NDAA, the SEC did not have explicit statutory authority to obtain disgorgement from securities law violators; instead, federal courts have conferred such authority in a patchwork of cases over the past 50 years. In the NDAA, Congress modified a section of the Exchange Act that sets out the remedies available to the SEC in addressing violations of the securities laws and granted explicit authority for the SEC to seek disgorgement. The new authority comes with an enhanced, ten-year limitation period for disgorgement related to certain fraud violations. However, the new statute and authority do not necessarily sweep aside the limitations imposed by the Supreme Court in two recent, seminal cases, Kokesh v. SEC and Liu v. SEC. Read More >

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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