March 20, 2023

Volume XIII, Number 79


March 17, 2023

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Return to Civil and Criminal Collaboration in White Collar under Biden Administration

Under the Biden Administration, we expect the Department of Justice to reinvigorate the policies aimed at increasing coordination between the criminal and civil divisions.  In a 2015 Memorandum – the “Yates Memo” – former Deputy Attorney General Sally Yates pushed for “early and regular communication” between civil and criminal division attorneys in their pursuit of corporate investigations.  Current conditions, including the government’s COVID-19 response under the Coronavirus Aid, Relief, and Economic Security Act and additional pandemic relief packages, have set the stage for renewed focus on this collaborative policy outlined by Yates.  In the private funds space, this strategy could create a potential multi-pronged risk to portfolio companies—and their private equity owners and creditors—who have received funding from federal relief programs.

In 2021, we expect these federal relief program investigations to move beyond the low hanging fruit of brazen criminal fraud, into areas with more difficult proof issues, including those posed by ambiguous or shifting program requirements, especially as they relate to eligibility.  Even in the absence of adequate proof of criminal intent, some circumstances may be ripe for False Claims Act and other civil fraud enforcement alternatives where the government faces a lower evidentiary burden to establish financial liability, both as to corporate recipients and derivatively to their private equity backers.

  1. Increased Regulatory Scrutiny of Private Funds

  2. The Ripples Behind the SPAC Wave

  3. Valuation in Times of Market Disruption

  4. Portfolio Companies Continue to be a Source of Litigation Risk

  5. New Focus and Compliance Approach Needed for Privacy and Cybersecurity

  6. Cryptocurrencies and Other Digital Assets: A New Regime

  7. Return to Civil and Criminal Collaboration in White Collar under Biden Administration

  8. Focus on ESG Will Continue to Grow Under Biden Administration

  9. Private Credit Lenders Should Remain Vigilant in 2021

  10. Navigating Brexit: What Funds Should Look Out for as the Dust Begins to Settle

© 2023 Proskauer Rose LLP. National Law Review, Volume XI, Number 131

About this Author

Margaret A Dale, Commercial Litigation, Proskauer Rose Law Firm

Margaret Dale is a Partner in the Litigation Department, resident in the New York office. Her practice focuses on commercial litigation, including class action defense, as well as intellectual property, privacy and data security, corporate governance litigation, securities litigation, and regulatory and internal investigations. She also represents and counsels clients in art law matters. 

Michael R. Hackett, Litigation Attorney, Proskauer Law Firm

Michael R. Hackett is an associate in the Litigation Department and a member of the Asset Management Litigation practice. His practice focuses on disputes and regulation involving private funds, including private equity, venture capital, hedge, real estate and private credit funds, as well as other limited partnerships, where he regularly advises funds, fund sponsors, investment advisers and institutional and individual investors.

Mike’s experience representing private fund clients runs the gamut, from control contests within advisers, to...

Kirsten Lapham FInancial Services Attorney Proskauer Rose Law Firm, United Kingdom

Kirsten Lapham is a partner specialising in financial services regulation. She advises a broad range of both institutional and individual clients on a variety of financial services regulatory and compliance issues. Her practice has a specific emphasis on the regulatory issues arising under the AIFMD, and MiFID II for a range of EU and indirectly impacted firms outside of the EU.

Experience in this area includes advising multiple clients on the EU marketing and registration regimes and overlaying local regulatory considerations, such as the U.K. retail distribution...

William Komaroff Litigation White Collar Attorney Proskauer Law Firm New York

Bill Komaroff is a partner in the Litigation Department and White Collar Practice Group. He has a nationwide federal practice focused on corporate defense and investigations, counseling and defending institutional and individual clients in connection with a broad array of complex government investigations, prosecutions and civil disputes.

Bill also has served as a member of the Criminal Justice Act Panel for the District Court for the Southern District of New York.

From 2003 to 2007, Bill served as an Assistant U.S....

Timothy W. Mungovan, Litigation Attorney, Proskauer Law Firm

Timothy Mungovan is a Partner in the Litigation Department, co-head of the Private Investment Funds Disputes practice and a member of the Private Investment Funds Group. Tim has an international practice in complex commercial litigation, advising public and private companies in a variety of areas, including securities, corporate governance, fiduciary obligations, investment management and financial services, fraud and trade secrets.

In addition to his regular commercial litigation practice, Tim focuses on disputes involving private investment...

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