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On January 24, 2022, the Federal Trade Commission announced its annual update of thresholds for pre-merger notifications of certain M&A transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”).  Pursuant to the statute, the HSR Act’s jurisdictional thresholds are updated annually to account for changes in the gross national product.  The new thresholds will take effect on February 23, 2022, applying to transactions that close on or after that date.

The size of transaction threshold for reporting proposed mergers and acquisitions under Section 7A of the Clayton Act will increase by $9.0 million, from $92 million in 2021 to $101 million for 2022.

Original Threshold	2021 Threshold	2022 Threshold
$10 million	$18.4 million	$20.2 million
$50 million	$92.0 million	$101 million
$100 million	$184.0 million	$202 million
$110 million	$202.4 million	$222.2 million
$200 million	$368.0 million	$403.9 million
$500 million	$919.9 million	$1.0098 billion
$1 billion	$1,839.8 million	$2.0196 billion

 

The maximum fine for violations of the HSR Act has increased from $43,792 per day to $46,517.

The amounts of the filing fees have not changed, but the thresholds that trigger each fee have increased:

Fee	Size of Transaction
$45,000	Valued at more than $101 million but less than $202 million
$125,000	Valued at $202 million or more but less than $1.0098 billion
$280,000	Valued at $1.0098 billion or more

 

The 2022 thresholds triggering prohibitions on certain interlocking directorates on corporate boards of directors are $41,034,000 for Section 8(a)(l) (size of corporation) and $4,103,400 for Section 8(a)(2)(A) (competitive sales).  The Section 8 thresholds took effect on January 21, 2022.

If you have any questions about the new HSR size of transaction thresholds, or HSR and antitrust/competition regulations and rulemaking more generally, please contact any of the partners or counsel listed below.

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The following Gibson Dunn lawyers prepared this client alert: Adam Di Vincenzo, Andrew Cline, and Chris Wilson.

Gibson Dunn’s lawyers are available to assist clients in addressing any questions they may have regarding the HSR Act or antitrust issues raised by business transactions. Please feel free to contact the Gibson Dunn attorney with whom you usually work in the firm’s Antitrust and Competition Practice Group, or the following:

Adam Di Vincenzo – Washington, D.C. (+1 202-887-3704, adivincenzo@gibsondunn.com)

Andrew Cline – Washington, D.C. (+1 202-887-3698, acline@gibsondunn.com)

Chris Wilson – Washington, D.C. (+1 202-955-8520, cwilson@gibsondunn.com)

Rachel S. Brass – Co-Chair, Antitrust & Competition Group, San Francisco
(+1 415-393-8293, rbrass@gibsondunn.com)

Stephen Weissman – Co-Chair, Antitrust & Competition Group, Washington, D.C.
(+1 202-955-8678, sweissman@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Antitrust Enforcement Actions Followed Highly Unusual Price Increases

Decision Illustrates Risks Faced by Shareholders That Exercise Direct Control Over Their Companies

On January 14, 2022, a federal court in New York issued its decision in Federal Trade Commission v. Shkreli, holding that Martin Shkreli, the former head of Vyera Pharmaceuticals, violated federal and state antitrust laws by allegedly interfering with the entry of generic competition for Vyera’s drug Daraprim.[1]  For his participation in the conduct, the District Court ordered Shkreli to disgorge $64.4 million in profits and banned him from participating in the pharmaceutical industry for life.[2]  The court’s decision followed a seven-day bench trial last month.  The case was brought by the Federal Trade Commission, the New York Attorney General, and the attorneys general of six other states.

The case centered on Shkreli’s conduct after Vyera, formerly known as Turing Pharmaceuticals, purchased the rights to Daraprim, a medication used to treat potentially fatal parasitic infections.  In 2015, Vyera raised the price of Daraprim from $17.50 to $750 per pill.  It also moved Daraprim from a retail distribution to a closed distribution system, and entered into agreements with the two primary manufacturers for Daraprim’s active pharmaceutical ingredient that restricted access to that ingredient.  The District Court held that, in doing so, Vyera made it difficult for generic manufacturers to obtain sufficient samples of the drug to conduct bioequivalence and other studies needed for FDA approval, thus delaying the entry of generic competition for at least eighteen months.  The District Court found that this conduct violated federal and state antitrust laws, and that Shkreli himself was personally liable for such conduct due to the control he exercised over the company.  Below, we provide several important takeaways from the court’s decision.

Dramatic Price Hikes Untethered to Demand Can Lead To Intense Antitrust Scrutiny. The District Court cites testimony describing Shkreli’s decision to dramatically increase the cost of Daraprim as the “poster child of everything that is considered wrong about the pharmaceutical industry.”[3]  Shkreli’s over-the-top price increases clearly drew significant media and law enforcement attention to his company’s business practices.  The case shows that even though there is nothing unlawful about a company raising price, dramatic price increases unconnected with increased demand can draw extraordinary public attention and attract intense regulatory scrutiny.  Here, that close scrutiny resulted in severe personal and professional penalties for Shkreli.

Closed Distribution Systems As An Anti-Generic Strategy. Daraprim had been in open retail distribution since the 1950s.[4]  After purchasing the rights in 2015, Shkreli swiftly moved to create a highly restrictive closed distribution system.  To do so, Vyera imposed class of trade restrictions on its distribution contacts, limited the number of bottles that a single customer could purchase at a given time, bought back Daraprim inventory from wholesalers and distributors, and surveilled distributors sales reports “to prevent the diversion of Daraprim to generic drug companies for [bioequivalence] testing.”[5]  Vyera also allegedly blocked access to pyrimethamine, Daraprim’s active pharmaceutical ingredient, by entering into exclusive supply agreements with two of its largest manufacturers.  The District Court held that these practices dramatically heightened the barriers to generic market entry.  The District Court’s holding that this conduct was illegal, anticompetitive conduct, illustrates that closed distribution systems – while not ordinarily unlawful – can be the basis for an antitrust claim where they are allegedly used as a means to impede generic entry.

Risk of Liability For Large Shareholders. Shkreli founded Vyera (initially known as Turing), was the company’s first CEO, and allegedly masterminded the scheme to exclude Daraprim’s generic competitors from the market.  Even after he stepped down as Vyera’s CEO following his December 2015 arrest, the District Court found that Shkreli “remained in functional control of Vyera’s management and its business strategy.”[6]  Even during his incarceration, the District Court stated that Shkreli continued to manage Vyera’s leadership, direct corporate policy, and maintain the allegedly anticompetitive Daraprim scheme by wielding his authority as the company’s largest shareholder.  For this conduct, the District Court held Shkreli personally liable under the Sherman Act and joint and severally liable for the disgorgement remedy under New York State law.  The Court’s decision is a warning that shareholders who exert a high degree of control over companies’ anticompetitive conduct can themselves be found directly liable.  This case illustrates the risk that federal and state antitrust enforcers, and even private plaintiffs, will invoke similar reasoning in an attempt to impose liability on other types of shareholders (e.g., institutional shareholders).

Expansion of Remedies When FTC Cooperates With State AGs. By working with the Attorneys General of New York, California, Ohio, Pennsylvania, Illinois, North Carolina, and Virginia, the FTC was able to seek remedies unavailable under federal law.  Chief among these was the remedy requiring Shkreli to disgorge $64.4 million in net profits – a remedy afforded by New York state law[7] but not currently available to the FTC since the Supreme Court’s 2019 decision in AMG Capital v. FTC.[8]  The District Court found the plaintiffs’ federal and state injunctive authority also to be sufficient to order a lifetime ban on Shkreli from participating in the pharmaceutical industry.  The case therefore highlights the risks posed when the FTC’s enforcement power is paired with the additional remedies afforded to certain state attorneys general.  Importantly, these remedies were available to the FTC and states without Mr. Shkreli having a right to a jury trial, because the FTC and state AGs did not pursue a traditional damages remedy.

The District Court’s decision in FTC v. Shkreli is a reminder that pharmaceutical and other companies should seek legal advice when engaging in activities that have generated significant regulatory attention, such as price increases untethered to demand increases, and changing the distribution system used for a drug.  In addition, as noted, the decision illustrates that institutional and other types of shareholders should seek legal advice when seeking to exert influence over a subsidiary or other company that is potentially subject to significant antitrust or other legal exposure.

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[1] Federal Trade Commission, State of New York, State of California, State of Ohio, Commonwealth of Pennsylvania, State of Illinois, State of North Carolina, & Commonwealth of Virginia vs. Martin Shkreli, No. 20CV00706 (DLC), 2022 WL 135026 (S.D.N.Y. Jan. 14, 2022).

[2] Id. at *1.

[3] Id. at *11, citing the testimony of Dr. Eliseo Salinas, Vyera’s President of Research & Development from June 2015 to April 2017, and interim CEO from April to July 2017.

[4] Id. at *12.

[5] Id. at *14.

[6] Id. at *28.

[7] Id. at *46.

[8] AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct. 1341 (2021).

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The following Gibson Dunn lawyers prepared this client alert: Reed Brodsky, Eric Stock, and Jessica Trafimow*.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please feel free to contact the Gibson Dunn attorney with whom you usually work in the firm’s Antitrust and Competition or Securities Enforcement practice groups, or the authors:

Reed Brodsky – New York (+1 212-351-5334, rbrodsky@gibsondunn.com)
Eric J. Stock – New York (+1 212-351-2301, estock@gibsondunn.com)

Please also feel free to contact any of the following practice leaders:

Antitrust and Competition Group:
Rachel S. Brass – San Francisco (+1 415-393-8293, rbrass@gibsondunn.com)
Stephen Weissman – Washington, D.C. (+1 202-955-8678, sweissman@gibsondunn.com)

Securities Enforcement Group:
Richard W. Grime – Washington, D.C. (+1 202-955-8219, rgrime@gibsondunn.com)
Mark K. Schonfeld – New York (+1 212-351-2433, mschonfeld@gibsondunn.com)

* Jessica Trafimow is a recent law graduate working in the firm’s New York office who is not yet admitted to practice law.

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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BlackRock, Vanguard and State Street Global Advisors (“State Street”) recently issued their voting policy updates for 2022, as well as guidance about their 2022 priorities for their portfolio companies.  On January 18, 2022, BlackRock’s CEO issued his annual “Letter to CEOs” (available here), following closely on the heels of State Street’s CEO, who issued his annual letter to public company directors (available here) on January 12.

These pronouncements from the “Big Three” asset managers reflect a number of common themes, including an emphasis on climate and the transition to a Net Zero economy, diversity at the board level and throughout the workforce, and effective human capital management.  Links to the BlackRock and Vanguard voting policies for 2022 are below.  State Street’s voting policy updates span several documents that provide guidance on areas that State Street views as focal points for the coming year.  Links to these documents are also below.

BlackRock         Proxy Voting Guidelines for U.S. Securities (effective as of January 2022)

Vanguard          Proxy Voting Policy for U.S. Companies (effective as of March 1, 2022)

State Street

• • • Guidance on Climate-Related Disclosures;
    • Disclosure Expectations for Effective Climate Transition Plans;
    • Guidance on Diversity Disclosures and Practices;
    • Guidance on Managing Director Time Commitments; and
    • Guidance on HCM Disclosures & Practices.

1. BlackRock

2022 Letter to CEOs

In his 2022 letter titled “The Power of Capitalism,” BlackRock CEO Larry Fink encourages companies to focus on their purpose and put that purpose at the foundation of their relationships with stakeholders, in order to be valued by their stakeholders and deliver long-term value for their shareholders.  The letter urges companies to think about whether they are creating an environment that helps their employee-stakeholders navigate the new world of work that has emerged from the pandemic.  The letter observes that most stakeholders now expect companies to play a role in moving toward a Net Zero global economy and discusses BlackRock’s approach to climate and sustainability.  This is a priority area for BlackRock because of its need, as a capitalist and fiduciary to its clients, to understand how companies are adjusting their business to massive changes in the economy.  Mr. Fink also emphasizes that divesting from entire sectors, or simply passing carbon-intensive assets from public to private markets, will not move the world to Net Zero.  BlackRock does not pursue divestment from oil and gas companies as a policy, but believes that action by “foresighted companies” in a variety of carbon-intensive industries is a critical part of the transition to a greener economy.  Government participation on the policy, regulatory and disclosure fronts is also critical because, Mr. Fink notes, “businesses can’t do this alone, and they cannot be the climate police.”

The letter concludes with a reminder that BlackRock has built a stewardship team so it can understand companies’ progress throughout the year, and not just during proxy season.  BlackRock previously announced an initiative to give more of its clients the option to vote their own holdings, rather than BlackRock casting votes on their behalf.  The letter notes that this option is now available to certain institutional clients, including pension funds that support 60 million people.  The letter also commits to expanding that universe as BlackRock is committed to a future where every investor, including individual investors, have the option to participate in the proxy voting process.

2022 BlackRock Voting Policy Updates

30% Target on Board Diversity 

BlackRock believes boards should aspire to 30% diversity, and encourages companies to have at least two directors who identify as female and at least one who identifies as being from an “underrepresented group.”  The definition of “underrepresented group” is broad and includes individuals who identify as racial or ethnic minorities, LGBTQ+, underrepresented based on national, Indigenous, religious or cultural identity, individuals with disabilities and veterans.  Although the wording of the policy is aspirational, insufficient board diversity was a top reason BlackRock opposed the election of directors in 2021.

Board Diversity Disclosure

BlackRock updated its expectations for disclosure about board diversity.  It asks that companies disclose how the diversity characteristics of the board, in aggregate, are aligned with a company’s long-term strategy and business model, and whether a diverse slate of nominees is considered for all available board seats.

Votes on Compensation Committee Members

BlackRock appears to be strengthening its position on votes for compensation committee members where there is a lack of alignment between pay and performance.  In that situation, BlackRock will vote “against” the say-on-pay proposal and relevant compensation committee members (rather than simply “considering” negative votes for committee members).

Sustainability Reporting

BlackRock will continue to ask that companies report in accordance with the Task Force on Climate-related Financial Disclosure (“TCFD”) framework.  In recognition of continuing advances in sustainability reporting standards, the 2022 voting guidelines recognize that in addition to TCFD, many companies report using industry-specific metrics other than those developed by the Sustainability Accounting Standards Board (“SASB”).  For those companies, BlackRock asks that they highlight metrics that are industry- or company- specific.  It also recommends that companies disclose any multinational standards they have adopted, any industry initiatives in which they participate, any peer group benchmarking undertaken, and any assurance processes to help investors understand their approach to sustainable and responsible business conduct.

Climate Risk

BlackRock continues to ask companies to disclose Net Zero-aligned business plans that are consistent with their business model and sector.  For 2022, it is encouraging companies to: (1) demonstrate that their plans are resilient under likely decarbonization pathways and the global aspiration to limit warming to 1.5°C; and (2) disclose how considerations related to having a reliable energy supply and a “just transition” (that protects the most vulnerable from energy price shocks and economic dislocation) affect their plans.  BlackRock also updated its voting policies to reflect its existing approach of signaling concerns about a company’s plans or disclosures in its votes on directors, particularly at companies facing material climate risks.  In determining how to vote, it will continue to assess whether a company’s disclosures are aligned with the TCFD and provide short-, medium-, and long-term reduction targets for Scope 1 and 2 emissions.

ESG Performance Metrics

BlackRock does not have a position on the use of ESG performance metrics, but it believes that where companies choose to use them, they should be relevant to the company’s business and strategy, clearly articulated, and appropriately rigorous, like other financial and non-financial performance metrics.

Votes on Committee Members at Controlled Companies

BlackRock may vote “against,” or “withhold” votes from, directors serving on “key” committees (audit, compensation, nominating/governance), that it does not consider to be independent, including at controlled companies.  Previously, this policy was limited to votes on insiders or affiliates serving on the audit committee, and did not extend to other committees.

2. Vanguard

Vanguard’s voting policy updates address several of the same areas as BlackRock’s, including oversight of climate risk, and board diversity and related disclosures.  The introduction to the voting policies also contains more explicit language emphasizing that proposals often require fact-intensive analyses based on an expansive set of factors, and that proposals are voted case-by-case at the direction of the boards of individual Vanguard funds.

Climate Risk Oversight “Failures”

Vanguard’s voting policies outline certain situations in which funds will oppose the re-election of directors on “accountability” grounds—that is, “because of governance failings or as a means to escalate other issues that remain unaddressed by a company.”  Under Vanguard’s current policies, funds will consider votes “against,” or “withhold” votes from, directors or a committee for governance or material risk oversight failures.

For 2022, Vanguard has updated this policy to clarify that in cases where there is a risk oversight “failure,” funds will generally vote “against,” or “withhold” votes from, the chair of the committee responsible for overseeing a particular material risk (or the lead independent director and board chair, if a risk does not fall under the purview of a specific committee).  The policy has also been updated to reflect that it covers material social and environmental risks, including climate change.  On the subject of climate change, the updated policy lists factors that funds will consider in evaluating whether board oversight of climate risk is appropriate, including: (1) the materiality of the risk; (2) the effectiveness of disclosures to enable the market to understand and price the risk; (3) whether a company has disclosed business strategies, including reasonable risk mitigation plans in the context of anticipated regulatory requirements and changes in market activity, in line with the Paris Agreement or subsequent agreements; and (4) company specific-context, regulations and expectations.  Funds will also consider the board’s overall governance of climate risk and the effectiveness of its independent oversight of this area.

Board Diversity and Qualifications

For 2022, Vanguard has clarified its expectations on disclosure about board diversity and qualifications.  The policy states that boards can inform shareholders about the board’s current composition and related strategy by disclosing at least: (1) statements about the board’s intended composition strategy, including expectations for year-over-year progress, from the nominating/governance committee or other relevant directors; (2) policies for promoting progress toward greater board diversity; and (3) current attributes of the board’s composition.  The policy states that board diversity disclosure should cover, at a minimum, the genders, races, ethnicities, tenures, skills and experience that are represented on the board.  While disclosure about self-identified personal characteristics such as race and ethnicity can be presented at the aggregate or individual level, Vanguard expects to see disclosure about tenure, skills and experience at the individual level.

Under its policy on board “accountability” votes, a lack of progress on board diversity and/or disclosures about board diversity may lead to votes “against,” or “withhold” votes from, the chair of the nominating/governance committee.  Vanguard has updated this policy for 2022 to reflect its expectations about the various dimensions of diversity (gender, race, etc.) that should be represented on boards and about companies’ disclosures.  The policy includes a reminder that “many boards still have an opportunity to increase diversity across different dimensions,” and that these boards “should demonstrate how they intend to continue making progress.”

Director Overboarding

Vanguard has clarified how its overboarding policy applies to directors who are named executive officers (NEOs).  Although Vanguard’s limit of two public company boards remains in place, the policy updates clarify that the two boards could consist of either the NEO’s own board and one outside board, or two outside boards if an NEO does not sit on the board at their own company.  Vanguard funds will generally oppose the election of directors who exceed this limit at their outside board(s), but not at the company where they are an NEO.

For other directors, Vanguard’s existing limit of four public company boards is unchanged.

Vanguard funds will also look for companies to have good governance practices on director commitments, including adopting a policy on outside board service and disclosure about how the board oversees the policy.

Unilateral Board Adoption of Exclusive Forum Provisions

Vanguard has updated its voting policy on board “accountability” votes where a company adopts policies limiting shareholder rights.  Under this policy, Vanguard funds will generally oppose the election of the independent board chair or lead director, and the members of the nominating/governance committee, in response to unilateral board actions that “meaningfully limit” shareholder rights.  For 2022, this policy has been updated to specify that these board actions may include the adoption of an exclusive forum provision without shareholder approval.

Proposals on Virtual and Hybrid Shareholder Meetings

According to Vanguard, data show that virtual meetings can increase shareholder participation and reduce costs.  Vanguard funds will consider supporting proposals on virtual meetings if meeting procedures and requirements are disclosed ahead of time, there is a formal process for shareholders to submit questions, real-time video footage is available, shareholders can call into the meeting or send recorded messages, and shareholder rights are not unreasonably curtailed.

3. State Street

In his letter, State Street CEO Cyrus Taraporevala announces that in 2022, State Street’s main focus “will be to support the acceleration of the systemic transformations underway in climate change and the diversity of boards and workforces.”  To that end, the letter attaches three guidance documents outlining State Street’s expectations and voting policies for the 2022 proxy season in the areas of climate change and diversity, equity and inclusion.  State Street has also published other guidance documents on director overboarding/time commitments and human capital for the 2022 proxy season.

The guidance documents are worth reading in their entirety because they provide detailed information about the practices and disclosures State Street expects to see from its portfolio companies in both 2022 and 2023, and about State Street’s related voting policies.  A summary of the key highlights is below.

Corporate Climate Disclosures

General

State Street expects all companies in its portfolio to provide disclosures in accordance with the four pillars of the TCFD framework: governance, strategy, risk management, and metrics and targets.  In approaching its disclosure expectations, State Street will begin by engaging with companies.  The guidance document includes a list of questions (organized by the four TCFD pillars) that State Street may ask companies as part of its engagement efforts.

For companies that it believes are not making sufficient progress after engagement, State Street will consider taking action through its votes on directors and/or shareholder proposals.  Starting in 2022, at S&P 500 companies, State Street may vote against the independent board leader if a company fails to provide sufficient disclosure in accordance with the TCFD framework, including about board oversight of climate-related risks and opportunities, total Scope 1 and Scope 2 greenhouse gas (“GHG”) emissions, and targets for reducing GHG emissions.

Companies in “Carbon-Intensive Sectors”

For several years, State Street has had specific disclosure expectations for companies in “carbon-intensive sectors” (oil and gas, utilities and mining), and the guidance document outlines what State Street expects to see beginning in 2022.  Disclosures are expected to address: (1) interim GHG emissions reductions targets to accompany long-term climate ambitions; (2) discussion of the impacts of scenario-planning on strategy and financial planning; (3) use of carbon pricing in capital allocation decisions; and (4) Scope 1, Scope 2 and material categories of Scope 3 emissions.

Climate Change Shareholder Proposals

State Street will evaluate climate-related shareholder proposals on a case-by-case basis, taking into account factors that include the reasonableness of a proposal, alignment with the TCFD framework and SASB standards where relevant, emergent market and industry trends, peer performance, and dialogue with the board, management and other stakeholders.  For companies in carbon-intensive sectors, State Street will consider alignment with its disclosure expectations specific to these companies.  The guidance also addresses specific factors State Street will consider in assessing climate-related lobbying proposals.

Climate Transition Plan Disclosures

Related to the broader subject of climate disclosures, State Street has also issued guidance specific to disclosures about companies’ climate transition plans.  In the guidance, State Street notes that there is no one-size-fits-all approach to reaching Net Zero, and that climate-related risks and opportunities are highly nuanced across and within industries.  It plans to continue developing its disclosure expectations over time, including taking into account any disclosures mandated by regulators.  In his letter, State Street CEO Cyrus Taraporevala emphasizes that what State Street is seeking from climate transition plans, as a long-term investor, “is not purity but pragmatic clarity around how and why a particular transition plan helps a company make meaningful progress.”  Mr. Taraporevala also emphasizes the need to take a big-picture look at whether the climate commitments individual companies make have the effect of reducing climate impacts at the aggregate level.  In this regard, he observes that so-called “brown-spinning” (public companies selling off their highest-emitting assets to private equity or other market participants), “reduces disclosure, shields polluters, and allows the publicly-traded company to appear more ‘green,’ without any overall reduction in the level of emissions on the planet.”  State Street recognizes that in the near term, additional investments in light fossil fuels may be necessary to propel the transition to Net Zero.

In light of these considerations, State Street intends its guidance document on climate transition plans as a “first step” to provide transparency about the core criteria State Street expects companies to address in developing their plans.  These criteria are organized into ten categories that generally align with those found in two external frameworks: the Institutional Investors Group on Climate Change (IIGCC) Net Zero Investment Framework and Climate Action 100+ Net-Zero Company Benchmark.  The criteria include decarbonization strategy, capital allocation, climate governance, climate policy and stakeholder engagement.

As a companion to its 2022 policy on holding independent board leaders accountable for climate disclosures (discussed above), this year, State Street plans to launch an engagement campaign on climate transition plan disclosure targeted at “significant emitters in carbon-intensive sectors.”  Starting in 2023, it will hold directors at these companies accountable if their company fails to show adequate progress in meeting its climate transition disclosure expectations.

Diversity Disclosures

State Street’s guidance document lists five topics it expects all of its portfolio companies to address in their diversity disclosures:

1. Board oversight—How the board oversees the company’s diversity, equity and inclusion efforts, including the potential impacts of products and services on diverse communities;
2. Strategy—The company’s timebound and specific diversity goals (related to gender, race and ethnicity at a minimum), the policies and programs in place to meet these goals, and how they are measured, managed and progressing;
3. Goals—Same as Strategy.
4. Metrics—Measures of the diversity of the company’s global workforce and board. For employees, this should include diversity by gender, race and ethnicity (at a minimum) where permitted by law, broken down by industry-relevant employment categories or seniority levels, for all full-time employees.  In the U.S., companies are expected to use the disclosure framework from the EEO-1 at a minimum.  For the board, disclosures should be provided by gender, race and ethnicity (at a minimum), and can be on an aggregate or individual level; and
5. Board diversity—Efforts to achieve diversity at the board level, including how the nominating/governance committee ensures diverse candidates are considered as part of the recruitment process.

State Street also encourages companies to consider providing disclosures about other dimensions of diversity (LGBTQ+, disabilities, etc.), as it views these attributes as furthering the overarching goal of contributing to the diversity of thought on boards and in the workforce.

Diversity and Proxy Voting

State Street will consider disclosures about board diversity in deciding how to vote on directors, as follows:

Racial/Ethnic Diversity – S&P 500 Companies

In 2022, State Street will vote “against,” or “withhold” votes from:

• The chair of the nominating/ governance committee if the company does not disclose the racial and ethnic composition of its board, either at the aggregate or individual level;
• The chair of the nominating/ governance committee if the company does not have at least one director from “an underrepresented racial or ethnic community”; and
• The chair of the compensation committee, if the company does not disclose its EEO-1 report, with acceptable disclosure including the original report, or the exact content of the report translated into custom graphics.

Gender Diversity

State Street may vote “against,” or “withhold” votes from, the chair of the nominating/governance committee:

• Beginning in 2022, for companies in all markets, if there is not at least one female director on the board; and
• Beginning in 2023, at Russell 3000 companies, if the board does not have at least 30% female directors. State Street may waive this policy if a company engages with it and provides a specific, timebound plan for reaching 30%.

If a company fails to meet the gender diversity expectations for three consecutive years, State Street may vote against all incumbent nominating/governance committee members.

The guidance also outlines State Street’s approach to voting on diversity-related shareholder proposals, including specific criteria relating to proposals seeking reporting on diversity, “pay gap” proposals, and proposals seeking racial equity audits.

State Street notes that its voting policies currently focus on increasing board diversity, but that in coming years it intends to shift its focus to the workforce and executive levels.  Related to the subject of workforce diversity, the guidance previews ten recommended areas of focus for boards in overseeing racial and ethnic diversity.  These are addressed in more detail in a publication issued by State Street in partnership with Russell Reynolds and the Ford Foundation.

Director Overboarding

For 2022, State Street is moving toward an approach that relies more heavily on nominating/governance committee oversight (and enhanced disclosures) about whether directors have enough time to fulfill their commitments.  The updated approach is designed to ensure that nominating/governance committees are evaluating directors’ time commitments, regularly assessing director effectiveness, and providing disclosure about their policies and efforts.  State Street cites two factors as the key drivers of these updates: its own research showing that boards with overcommitted directors have been slower to adopt leading governance practices and provide robust shareholder rights, and concerns about “tokenism” (nominating already-overcommitted diverse directors) and the need to broaden the candidate pools of diverse directors.  The policy updates also address service on SPAC boards.

As a result of the policy updates, beginning in March 2022, State Street will apply the following overboarding limits to directors:

• For board chairs or lead directors, three public company boards; and
• Other director nominees who are not public company NEOs, four public company boards.

State Street may consider waiving these limits and support a director’s election if the company discloses its policy on outside board seats.  This policy (or the related disclosure) must include:

• A numerical limit on public company board seats that does not exceed State Street policies by more than one;
• Consideration of public company board leadership positions;
• An affirmation that all directors are currently in compliance with the policy; and
• A description of the nominating/governance committee’s annual process for review outside board commitments.

This waiver policy will not apply to public company NEOs, who remain subject to State Street’s existing limit of two public company boards.

In calculating outside boards, State Street will not count mutual fund boards or SPAC boards, but it expects the nominating/governance committee to consider these boards in evaluating directors’ time commitments.

Human Capital Management (HCM) Disclosures and Practices

State Street’s guidance document lists the five topics it expects companies to address in their HCM disclosures: (1) board oversight; (2) strategy (specifically, how a company’s approach to HCM advances its overall long-term business strategy); (3) compensation, and how it helps to attract and retain employees and incentivize contributions to an effective HCM strategy; (4) “voice” (how companies solicit and act on employee feedback, and how the workforce is engaged in the organization); and (5) how the company advances diversity, equity and inclusion.

State Street emphasizes that it expects companies to provide specificity on these subjects.  For example, rather than disclosing that employees are surveyed regularly, State Street suggests that companies disclose survey frequency, examples of questions asked, and relevant examples of actions taken in response to employee feedback.  State Street also encourages companies to consider emerging disclosure frameworks, such as the framework outlined by the Human Capital Management Coalition, which includes 35 institutional investors representing over $6.6 trillion in assets.

State Street will approach HCM issues by starting with engagement, focusing on the companies and industries with the greatest HCM risks and opportunities.  For companies that it believes are not making sufficient progress after engagement, State Street will consider taking action through its votes on directors and/or shareholder proposals.  It will consider supporting shareholder proposals at companies whose HCM disclosures are not sufficiently aligned with State Street’s disclosure expectations.

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The following Gibson Dunn lawyers assisted in the preparation of this client update: Elizabeth Ising and Lori Zyskowski.

Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work in the Securities Regulation and Corporate Governance and Executive Compensation and Employee Benefits practice groups, or any of the following practice leaders and members:

Securities Regulation and Corporate Governance Group:
Elizabeth Ising – Washington, D.C. (+1 202-955-8287, eising@gibsondunn.com)
Lori Zyskowski – New York, NY (+1 212-351-2309, lzyskowski@gibsondunn.com)
Ron Mueller – Washington, D.C. (+1 202-955-8671, rmueller@gibsondunn.com)
Thomas J. Kim – Washington, D.C. (+1 202-887-3550, tkim@gibsondunn.com)
Mike Titera – Orange County, CA (+1 949-451-4365, mtitera@gibsondunn.com)
Aaron Briggs – San Francisco, CA (+1 415-393-8297, abriggs@gibsondunn.com)
Julia Lapitskaya – New York, NY (+1 212-351-2354, jlapitskaya@gibsondunn.com)
Cassandra Tillinghast – Washington, D.C. (+1 202-887-3524, ctillinghast@gibsondunn.com)

Executive Compensation and Employee Benefits Group:
Stephen W. Fackler – Palo Alto/New York (+1 650-849-5385/+1 212-351-2392, sfackler@gibsondunn.com)
Sean C. Feller – Los Angeles (+1 310-551-8746, sfeller@gibsondunn.com)
Krista Hanvey – Dallas (+ 214-698-3425, khanvey@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Decided January 24, 2022

April Hughes, et al. v. Northwestern University, et al., No. 19-1401

On Monday, January 24, 2022, the Supreme Court held 8-0 that offering inexpensive investment options, together with other allegedly high-cost options, in a defined-contribution retirement plan does not itself categorically foreclose a claim for breach of ERISA’s duty of prudence.

Background:

The Employee Retirement Income Security Act (“ERISA”) imposes a duty of prudence on fiduciaries’ management of employees’ retirement plans. See 29 U.S.C. § 1104(a)(1)(B). Administrators of defined-contribution plans, which feature a “menu” of investment options into which employees may direct their contributions, are subject to the fiduciary duties set forth in ERISA. Petitioners, who are former and current employees of respondent Northwestern University, alleged that Northwestern violated its duty of prudence by providing employees with a menu of investment options that caused employees to incur excessive fees, both because too many options were offered and because of the high fees associated with a number of the available options. The Seventh Circuit affirmed the dismissal of petitioners’ claims for failure to plausibly allege a breach of fiduciary duty. It held in relevant part that Northwestern had complied with its duty of prudence by offering a menu of investment options that included petitioners’ preferred type of low-cost investments, along with other higher-cost options.

Issue:

Whether participants in a defined-contribution retirement plan may state a claim for breach of ERISA’s fiduciary duty of prudence on the theory that investment options offered in the plan were too numerous and that many of the options were too costly, notwithstanding that the plan’s fiduciaries offered low-cost investment options in the plan as well.

Court’s Holding:

Relying on Tibble v. Edison Int’l, 575 U.S. 523 (2015), the Supreme Court held that the Seventh Circuit erred in dismissing the plaintiffs’ claims without making a “context-specific inquiry” that “take[s] into account [a fiduciary’s] duty to monitor all plan investments and remove any imprudent ones.”

“[E]ven in a defined-contribution plan where participants choose their investments, plan fiduciaries are required to conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options.”

Justice Sotomayor, writing for the Court

What It Means:

• The Court’s short, unanimous decision (with Justice Barrett recused) requires the Seventh Circuit to reevaluate the plaintiffs’ claims under Tibble.  The decision does not purport to break new legal ground, does not decide whether plaintiffs stated a viable claim, and does not address what allegations would be sufficient to plead a viable claim under plaintiffs’ theories (including theories focused on recordkeeping fees).
• Citing Tibble, the Court stated that the mere availability of adequate investment options does not categorically prevent ERISA plaintiffs from stating a plausible claim for breach of the duty of prudence, and that “[i]f the fiduciaries fail to remove an imprudent investment from the plan within a reasonable time, they breach their duty.”
• In evaluating whether the plan participants’ allegations were sufficient to survive a motion to dismiss, the Court applied well-settled pleading rules and did not adopt an ERISA-specific standard.
• In concluding its opinion, the Court emphasized that “[a]t times, the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise.”

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The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice leaders:

Appellate and Constitutional Law Practice

Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Mark A. Perry +1 202.887.3667 mperry@gibsondunn.com	Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com
Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com

Related Practice: Executive Compensation and Employee Benefits:

Stephen W. Fackler +1 650.849.5385 sfackler@gibsondunn.com

Sean C. Feller +1 310.551.8746 sfeller@gibsondunn.com

Krista P. Hanvey +1 214.698.3425 khanvey@gibsondunn.com

Related Practice: Labor and Employment:

Jason C. Schwartz +1 202.955.8242 jschwartz@gibsondunn.com

Katherine V.A. Smith +1 213.229.7107 ksmith@gibsondunn.com

As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their Form 10-K. This alert reviews the recent amendments to Regulation S-K adopted by the U.S. Securities and Exchange Commission (“SEC”) and discusses how public companies are reacting to these new requirements. In addition, it discusses other disclosure topics, including Environmental, Social, and Governance (“ESG”) issues such as human capital management, climate change, and cybersecurity, that, in light of increasing investor focus and forthcoming rulemaking, continue to be a top priority for public companies.

Read More

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The following Gibson Dunn attorneys assisted in preparing this client update: Mike Titera, Justine Robinson, Andrew Fabens, Hillary Holmes, Elizabeth Ising, Thomas Kim, David Korvin, Ron Mueller, Jim Moloney, and Victor Twu.

Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work in the Securities Regulation and Corporate Governance and Capital Markets practice groups, or any of the following practice leaders and members:

Securities Regulation and Corporate Governance Group:
Elizabeth Ising – Washington, D.C. (+1 202-955-8287, eising@gibsondunn.com)
James J. Moloney – Orange County, CA (+1 949-451-4343, jmoloney@gibsondunn.com)
Lori Zyskowski – New York (+1 212-351-2309, lzyskowski@gibsondunn.com)
Brian J. Lane – Washington, D.C. (+1 202-887-3646, blane@gibsondunn.com)
Ronald O. Mueller – Washington, D.C. (+1 202-955-8671, rmueller@gibsondunn.com)
Thomas J. Kim – Washington, D.C. (+1 202-887-3550, tkim@gibsondunn.com)
Mike Titera – Orange County, CA (+1 949-451-4365, mtitera@gibsondunn.com)
Aaron Briggs – San Francisco, CA (+1 415-393-8297, abriggs@gibsondunn.com)
Julia Lapitskaya – New York, NY (+1 212-351-2354, jlapitskaya@gibsondunn.com)

Capital Markets Group:
Andrew L. Fabens – New York (+1 212-351-4034, afabens@gibsondunn.com)
Hillary H. Holmes – Houston (+1 346-718-6602, hholmes@gibsondunn.com)
Stewart L. McDowell – San Francisco (+1 415-393-8322, smcdowell@gibsondunn.com)
Peter W. Wardle – Los Angeles (+1 213-229-7242, pwardle@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Adding to the growing list of jurisdictions that have passed pay transparency laws, effective May 15, 2022, employers in New York City will be required to include salary ranges in job postings.

Brief Summary

The new pay transparency law makes it an “unlawful discriminatory practice” under the New York City Human Rights Law (“NYCHRL”) for an employer to advertise a job, promotion, or transfer opportunity without stating the position’s minimum and maximum salary in the advertisement.

The salary range may include the lowest and highest salaries that the employer believes in “good faith” that it would pay for the job, promotion, or transfer at the time of the posting.

Notably, the law does not define “advertise” and it does not differentiate between jobs that are posted externally versus internally.  The law also does not define a “salary,” nor does it clarify the requirements for non-salaried positions.

Covered Employers

The law applies to all employers with at least four employees in New York City, and independent contractors are counted towards that threshold.  Significantly, however, the law does not apply to temporary positions advertised by temporary staffing agencies.

Enforcement and Penalties

The New York City Commission on Human Rights is authorized to take action to implement the law, including, among other things, through the promulgation of rules and/or imposition of civil penalties under the NYCHRL.

Growing Trend of Pay Transparency Laws

New York City’s pay transparency law is part of a growing trend in the United States.

In 2021, Colorado enacted a law that requires employers to disclose, among other things, the compensation or range of possible compensation in job postings.  Of note, Colorado’s law is more expansive than New York City’s in that it requires employers with even one employee based in Colorado to post such salary information in any job postings for remote work (i.e., work that is performable anywhere, including Colorado).

Last year, Connecticut and Nevada enacted similar pay transparency laws, and Rhode Island passed a law (effective January 1, 2023) which will require employers to provide wage or salary range information to applicants and employees under certain conditions.

California, Maryland, and Washington also have laws requiring salary disclosure, but only upon the request of an applicant or employee, and each law’s disclosure requirements vary slightly.  Maryland, for example, requires disclosure of a position’s wage range upon request of any applicant.  In comparison, California requires disclosure upon request from applicants who have completed an initial interview and Washington requires disclosure upon request from applicants who have received an offer.

This trend appears poised to continue as other state legislatures, including Massachusetts and South Carolina, are considering pay transparency bills.

Similar to laws banning questions related to an applicant’s salary history during the hiring process, these pay transparency laws are aimed at promoting equal pay.  Where state or local law provide for a private right of action, employers may face “tag-along” claims alleging pay disclosure non-compliance in addition to claims of workplace discrimination and/or retaliation.

Takeaway

All covered employers in New York City should take steps to ensure compliance with these new pay transparency requirements effective May 2022.  And, employers operating in multiple jurisdictions should carefully monitor the ever-growing patchwork of pay transparency laws in order to ensure compliance wherever located.

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The following Gibson Dunn attorneys assisted in preparing this client update: Danielle Moss, Harris Mufson, Gabby Levin, and Meika Freeman.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following:

Danielle J. Moss – New York (+1 212-351-6338, dmoss@gibsondunn.com)

Harris M. Mufson – New York (+1 212-351-3805, hmufson@gibsondunn.com)

Gabrielle Levin – New York (+1 212-351-3901, glevin@gibsondunn.com)

Jason C. Schwartz – Co-Chair, Labor & Employment Group, Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com)

Katherine V.A. Smith – Co-Chair, Labor & Employment Group, Los Angeles (+1 213-229-7107, ksmith@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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2021 was a busy year for policy proposals and lawmaking related to artificial intelligence (“AI”) and automated technologies.  The OECD identified 700 AI policy initiatives in 60 countries, and many domestic legal frameworks are taking shape.  With the new Artificial Intelligence Act, which is expected to be finalized in 2022, it is likely that high-risk AI systems will be explicitly and comprehensively regulated in the EU.  While there have been various AI legislative proposals introduced in Congress, the United States has not embraced a comprehensive approach to AI regulation as proposed by the European Commission, instead focusing on defense and infrastructure investment to harness the growth of AI.

Nonetheless —mirroring recent developments in data privacy laws—there are some tentative signs of convergence in US and European policymaking, emphasizing a risk-based approach to regulation and a growing focus on ethics and “trustworthy” AI, as well as enforcement avenues for consumers.  In the U.S., President Biden’s administration announced the development of an “AI bill of rights.”  Moreover, the U.S. Federal Trade Commission (“FTC”) has signaled a particular zeal in regulating consumer products and services involving automated technologies and large data volumes, and appears poised to ramp up both rulemaking and enforcement activity in the coming year.  Additionally, the new California Privacy Protection Agency will likely be charged with issuing regulations governing AI by 2023, which can be expected to have far-reaching impact.  Finally, governance principles and technical standards for ensuring trustworthy AI and ML are beginning to emerge, although it remains to be seen to what extent global regulators will reach consensus on key benchmarks across national borders.

I.  U.S. NATIONAL POLICY, LEGISLATIVE EFFORTS, & ENFORCEMENT

A.  U.S. National Policy

1.  National AI Strategy

Almost three years after President Trump issued an Executive Order “Maintaining American Leadership in Artificial Intelligence” to launch the “American AI Initiative” and seek to accelerate AI development and regulation with the goal of securing the United States’ place as a global leader in AI technologies, we have seen a significant increase in AI-related legislative and policy measures in the U.S., bridging the old and new administrations.  As was true a year ago, the U.S. federal government has been active in coordinating cross-agency leadership and encouraging the continued research and development of AI technologies for government use.  To that end, a number of key legislative and executive actions have been directed at increasing the growth and development of such technologies for federal agency, national security and military applications.  U.S. lawmakers also continued a dialogue with their EU counterparts, pledging to work together during an EU parliamentary hearing on March 1.[1]  Rep. Robin Kelly (D-Ill.) testified at a hearing before the EU’s Special Committee on AI, noting that “[n]ations that do not share our commitment to democratic values are racing to be the leaders in AI and set the rules for the world,” .[2]  She urged Europe to take a “narrow and flexible” approach to regulation while working with the U.S.[3]

a)  National AI Initiative Act of 2020 (part of the National Defense Authorization Act of 2021 (“NDAA”)) and National AI Initiative Office

Pursuant to the National AI Initiative Act of 2020, which was passed on January 1, 2021 as part of the National Defense Authorization Act of 2021 (“NDAA”),[4] the OSTP formally established the National AI Initiative Office (the “Office”) on January 12.  The Office—one of several new federal offices mandated by the NDAA—will be responsible for overseeing and implementing a national AI strategy and acting as a central hub for coordination and collaboration by federal agencies and outside stakeholders across government, industry and academia in AI research and policymaking.[5]  The Act also established the National AI Research Resource Task Force (the “Task Force”), convening a group of technical experts across academia, government and industry to assess and provide recommendations on the feasibility and advisability of establishing a National AI Research Resource (“NAIRR”).[6]  The Task Force will develop a coordinated roadmap and implementation plan for establishing and sustaining a NAIRR, a national research cloud to provide researchers with access to computational resources, high-quality data sets, educational tools and user support to facilitate opportunities for AI research and development.  The Task Force will submit two reports to Congress to present its findings, conclusions and recommendations—an interim report in May 2022 and a final report in November 2022.

On January 27, 2021, President Biden signed a memorandum titled “Restoring trust in government through science and integrity and evidence-based policy making,” setting in motion a broad review of federal scientific integrity policies and directing agencies to bolster their efforts to support evidence-based decision making[7] which is expected to “generate important insights and best practices including transparency and accountability….”[8]  The President also signed an executive order to formally reconstitute the President’s Council of Advisors on Science and Technology,[9] and announced the establishment of the National AI Advisory Committee, which is tasked with providing recommendations on various topics related to AI, including the current state of U.S. economic competitiveness and leadership, research and development, and commercial application.[10]

b)  Innovation and Competition Act (S. 1260)

On June 8, 2021, the U.S. Senate voted 68-32 to approve the U.S. Innovation and Competition Act (S. 1260), intended to boost the country’s ability to compete with Chinese technology by investing more than $200 billion into U.S. scientific and technological innovation over the next five years, listing artificial intelligence, machine learning, and autonomy as “key technology focus areas.”[11]  $80 billion is earmarked for research into AI, robotics, and biotechnology.  Among various other programs and activities, the bill establishes a Directorate for Technology and Innovation in the National Science Foundation (“NSF”) and bolsters scientific research, development pipelines, creates grants, and aims to foster agreements between private companies and research universities to encourage technological breakthroughs.

The Act also includes provisions labelled as the “Advancing American AI Act,”[12] intended to “encourage agency artificial intelligence-related programs and initiatives that enhance the competitiveness of the United States” while ensuring AI deployment “align[s] with the values of the United States, including the protection of privacy, civil rights, and civil liberties.”[13]  The AI-specific provisions mandate that the Director of the Office for Management and Budget (“OMB”) shall develop principles and policies for the use of AI in government, taking into consideration the NSCAI report, the December 3, 2020 Executive Order “Promoting the Use of Trustworthy Artificial Intelligence in the Federal Government,” and the input of various interagency councils and experts.[14]

c)  Algorithmic Governance

We have also seen new initiatives taking shape at the federal level focused on algorithmic governance, culminating in the White House Office of Science and Technology Policy’s (“OSTP”) announcement in November 10, 2021, that it would launch a series of listening sessions and events the following week to engage the American public in the process of developing a Bill of Rights for an Automated Society.[15]  According to OSTP Director Eric, the bill will need “teeth” in the form of procurement enforcement.[16]  In a parallel action, the Director of the National AI Initiative Office, Lynne Parker made comments indicating that the United States should have a vision for the regulation of AI similar to the EU’s General Data Protection Regulation (“GDPR”).[17]  Moreover, in October 2021, the White House’s Office of Science and Technology Policy (“OSTP”) published an RFI requesting feedback on how biometric technologies have performed in organizations and how they affect individuals emotionally and mentally.[18]

In June 2021, the U.S. Government Accountability Office (“GAO”) published a report identifying key practices to help ensure accountability and responsible AI use by federal agencies and other entities involved in the design, development, deployment, and continuous monitoring of AI systems.[19]  The report identified four key focus areas: (1) organization and algorithmic governance; (2) system performance; (3) documenting and analyzing the data used to develop and operate an AI system; and (4) continuous monitoring and assessment of the system to ensure reliability and relevance over time.[20]

Finally, the National Institute of Standards and Technology (“NIST”), tasked by the Trump administration to develop standards and measures for AI, released its report of how to measure and enhance user trust, and identify and manage biases, in AI technology.[21]  NIST received sixty-five comments on the document, and the authors plan to synthesize and use the public’s responses to develop the next version of the report and to help shape the agenda of several collaborative virtual events NIST will hold in coming months.[22]

2.  National Security

a)  NSCAI Final Report

The National Defense Authorization Act of 2019 created a 15-member National Security Commission on Artificial Intelligence (“NSCAI”), and directed that the NSCAI “review and advise on the competitiveness of the United States in artificial intelligence, machine learning, and other associated technologies, including matters related to national security, defense, public-private partnerships, and investments.”[23]  Over the past two years, NSCAI has issued multiple reports, including interim reports in November 2019 and October 2020, two additional quarterly memorandums, and a series of special reports in response to the COVID-19 pandemic.[24]

On March 1, 2021, the NSCAI submitted its Final Report to Congress and to the President.  At the outset, the report makes an urgent call to action, warning that the U.S. government is presently not sufficiently organized or resourced to compete successfully with other nations with respect to emerging technologies, nor prepared to defend against AI-enabled threats or to rapidly adopt AI applications for national security purposes.  Against that backdrop, the report outlines a strategy to get the United States “AI-ready” by 2025[25] and identifies specific steps to improve public transparency and protect privacy, civil liberties and civil rights when the government is deploying AI systems.  NSCAI specifically endorses the use of tools to improve transparency and explainability: AI risk and impact assessments; audits and testing of AI systems; and mechanisms for providing due process and redress to individuals adversely affected by AI systems used in government.  The report also recommends establishing governance and oversight policies for AI development, which should include “auditing and reporting requirements,” a review system for “high-risk” AI systems, and an appeals process for those affected.  These recommendations may have significant implications for potential oversight and regulation of AI in the private sector.  The report also outlines urgent actions the government must take to promote AI innovation to improve national competitiveness, secure talent, and protect critical U.S. advantages, including IP rights.

b)  DOD’s Defense Innovation Unit (DIU) released its “Responsible AI Guidelines”

On November 14, 2021, the Department of Defense’s Defense Innovation Unit (“DIU”) released “Responsible AI Guidelines” that provide step-by-step guidance for third party developers to use when building AI for military use.  These guidelines include procedures for identifying who might use the technology, who might be harmed by it, what those harms might be, and how they might be avoided—both before the system is built and once it is up and running.[26]

c)  Artificial Intelligence Capabilities and Transparency (“AICT”) Act

On May 19, 2021, Senators Rob Portman (R-OH) and Martin Heinrich (D-NM), introduced the bipartisan Artificial Intelligence Capabilities and Transparency (“AICT”) Act.[27]  AICT would provide increased transparency for the government’s AI systems, and is based primarily on recommendations promulgated by the National Security Commission on AI (“NSCAI”) in April 2021.[28]  AICT was accompanied by the Artificial Intelligence for the Military (AIM) Act.[29]  The AICT Act would establish a pilot AI development and prototyping fund within the Department of Defense aimed at developing AI-enabled technologies for the military’s operational needs, and would develop a resourcing plan for the DOD to enable development, testing, fielding, and updating of AI-powered applications.[30] Both bills were passed as part of the Fiscal Year 2022 National Defense Authorization Act.[31]

B.  Consumer Protection, Privacy & Algorithmic Fairness

1.  FTC Focuses on Algorithmic Transparency and Fairness

On April 19, 2021, the FTC issued guidance highlighting its intention to enforce principles of transparency and fairness with respect to algorithmic decision-making impacting consumers.  The blog post, “Aiming for truth, fairness, and equity in your company’s use of AI,” announced the FTC’s intent to bring enforcement actions related to “biased algorithms” under section 5 of the FTC Act, the Fair Credit Reporting Act, and the Equal Credit Opportunity Act.[32]  Notably, the statement expressly notes that “ the sale or use of—for example—racially biased algorithms” falls within the scope of the prohibition of unfair or deceptive business practices.  The blog post provided concrete guidance on “using AI truthfully, fairly, and equitably,” indicating that it expects companies to “do more good than harm” by auditing its training data and, if necessary, “limit[ing] where or how [they] use the model;” testing their algorithms for improper bias before and during deployment; employing transparency frameworks and independent standards; and being transparent with consumers and seeking appropriate consent to use consumer data.  The guidance also warned companies against making statements to consumers that “overpromise” or misrepresent the capabilities of a product, noting that biased outcomes may be considered deceptive and lead to FTC enforcement actions.

This statement of intent came on the heels of remarks by former Acting FTC Chairwoman Rebecca Kelly Slaughter on February 10 at the Future of Privacy Forum, previewing enforcement priorities under the Biden Administration and specifically tying the FTC’s role in addressing systemic racism to the digital divide, exacerbated by COVID-19, AI and algorithmic decision-making, facial recognition technology, and use of location data from mobile apps.[33]  It also follows the FTC’s informal guidance last year outlining principles and best practices surrounding transparency, explainability, bias, and robust data models.[34]

These regulatory priorities continue to gather pace under new FTC Chair Lina Khan, who in November 2021 announced several new additions to the FTC’s Office of Policy Planning, including three “Advisors on Artificial Intelligence,” Meredith Whittaker, Ambak Kak, and Sarah Meyers West—all formerly at NYU’s AI Now Institute and experts in various AI topics including algorithmic accountability and the political economy of AI.[35]

The FTC has also taken steps to strengthen its enforcement powers, passing a series of measures to allow for quicker investigations into potential violations, including issues regarding bias in algorithms and biometrics.[36]  Moreover, on July 27, 2021, the FTC’s chief technologist Erie Meyer commented that the agency envisions requiring companies that engage in illegal data uses to “not just disgorge data and money,” but also “algorithms that were juiced by ill-gotten data.”[37]  Sen. Mike Lee, R-Utah, subsequently introduced a bill on December 15, 2021 that would give the FTC the authority to seek restitution in federal district court, after the U.S. Supreme Court ruled in April that the agency’s power to seek injunctions from a federal judge does not include the ability to request restitution or disgorgement of ill-gotten gains.[38]  The proposed Consumer Protection and Due Process Act would amend Section 13(b) of the Federal Trade Commission Act to give the FTC the explicit authority to ask a federal judge to let it recover money from scammers and antitrust violators.[39]

The FTC also identified “dark patterns” as a growing concern and enforcement focal point.  Dark patterns may be loosely defined as techniques to manipulate a consumer into taking an unintended course of action using novel uses of technology (including AI), particularly user experience (UX) design—for example, a customer service bot, unwanted warranty, or a trial subscription that converts to paid.[40]  At an FTC virtual workshop to examine dark patterns, the Acting Director of the Bureau of Consumer Protection, Daniel Kaufman, suggested that companies can expect aggressive FTC enforcement in this area and that the FTC will use Section 5 of the FTC Act and the Restoring Online Shoppers’ Confidence Act to exercise its authority by enacting new rules, policy statements, or enforcement guidance.[41]

We recommend that companies developing or deploying automated decision-making adopt an “ethics by design” approach and review and strengthen internal governance, diligence and compliance policies.  Companies should also stay abreast of developments concerning the FTC’s ability to seek restitution and monetary penalties and impose obligations to delete algorithms, models or data.

2.  Consumer Financial Protection Bureau

The CFPB, now headed by former FTC Commissioner Rohit Chopra, suggested that it may use the Fair Credit Reporting Act (FCRA) to exercise jurisdiction over large technology companies and their business practices.[42]  The FCRA has traditionally regulated the activities of credit bureaus, background check companies, and tenant screening services, but Chopra has made several statements that the underlying data used by technology giants may be triggering obligations under the FCRA.  The FCRA defines a consumer reporting agency fairly broadly to include companies assembling, evaluating, and selling data to third parties that use the data in making eligibility decisions about consumers.  The CFPB may seek to make an inquiry into large technology companies in order to learn whether data is, in fact, being sold to third parties and how it may be used further downstream.

In November, the CFPB issued an advisory opinion affirming that consumer reporting companies, including tenant and employment screening companies, are violating the law if they engage in careless name-matching procedures.[43]  The CFPB is particularly concerned by the algorithms of background screening companies assigning a false identity to applicants for jobs and housing due to error-ridden background screening reports that may disproportionately impact communities of color.  The advisory opinion reaffirms the obligations and requirements of consumer reporting companies to use reasonable procedures to ensure the maximum possible accuracy.

3.  U.S. Equal Employment Opportunity Commission

The U.S. Equal Employment Opportunity Commission plans to review how AI tools and technology are being applied to employment decisions.[44]  The EEOC’s initiative will examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors in ensuring that these technologies are used fairly, consistent with federal equal employment opportunity laws.

4.  Facial Recognition and Biometric Technologies

a)  Enforcement

In January 2021, the FTC announced its settlement with Everalbum, Inc. in relation to its “Ever App,” a photo and video storage app that used facial recognition technology to automatically sort and “tag” users’ photographs.[45]  The FTC alleged that Everalbum made misrepresentations to consumers about its use of facial recognition technology and its retention of the photos and videos of users who deactivated their accounts in violation of Section 5(a) of the FTC Act.  Pursuant to the settlement agreement, Everalbum must delete models and algorithms that it developed using users’ uploaded photos and videos and obtain express consent from its users prior to applying facial recognition technology, underscoring the emergence of deletion as a potential enforcement measure.  A requirement to delete data, models, and algorithms developed by using data collected without express consent could represent a significant remedial obligation with broader implications for AI developers.

Signaling the potential for increasing regulation and enforcement in this area, FTC Commissioner Rohit Chopra issued an accompanying statement describing the settlement as a “course correction,” commenting that facial recognition technology is “fundamentally flawed and reinforces harmful biases” while highlighting the importance of  “efforts to enact moratoria or otherwise severely restrict its use.”  However, the Commissioner also cautioned against “broad federal preemption” on data protection and noted that the authority to regulate data rights should remain at state-level.[46]  We will carefully monitor any further enforcement action by the FTC (and other regulators), as well as the slate of pending lawsuits alleging the illicit collection of biometric data used by automated technologies pursuant to a growing number of state privacy laws—such as Illinois’ Biometric Information Privacy Act (“BIPA”)[47]—and recommend that companies developing or using facial recognition technologies seek specific legal advice with respect to consent requirements around biometric data as well as develop robust AI diligence and risk-assessment processes for third-party AI applications.

b)  Legislation

Facial recognition technology also attracted renewed attention from federal and state lawmakers in 2021. On June 15, 2021, a group of Democratic senators reintroduced the Facial Recognition and Biometric Technology Moratorium Act, which would prohibit agencies from using facial recognition technology and other biometric tech—including voice recognition, gate recognition, and recognition of other immutable physical characteristics—by federal entities, and block federal funds for biometric surveillance systems.[48]  A similar bill was introduced in both houses in the previous Congress but did not progress out of committee.[49]  The legislation, which is endorsed by the ACLU and numerous other civil rights organizations, also provides a private right of action for individuals whose biometric data is used in violation of the Act (enforced by state Attorneys General), and seeks to limit local entities’ use of biometric technologies by tying receipt of federal grant funding to localized bans on biometric technology.  Any biometric data collected in violation of the bill’s provisions would also be banned from use in judicial proceedings.

At the state level, Virginia passed a ban on the use of facial recognition technology by law enforcement (H.B. 2031).  The legislation, which won broad bipartisan support, prohibits all local law enforcement agencies and campus police departments from purchasing or using facial recognition technology unless it is expressly authorized by the state legislature.[50]  The law took effect on July 1, 2021.  Virginia joins California, as well as numerous cities across the U.S., in restricting the use of facial recognition technology by law enforcement.[51]

5.  Algorithmic Accountability

a)  Algorithmic Justice and Online Platform Transparency Act of 2021 (S. 1896)

On May 27, 2021, Senator Edward J. Markey (D-Mass.) and Congresswoman Doris Matsui (CA-06) introduced the Algorithmic Justice and Online Platform Transparency Act of 2021 to prohibit harmful algorithms, increase transparency into websites’ content amplification and moderation practices, and commission a cross-government investigation into discriminatory algorithmic processes across the national economy.[52]  The Act would prohibit algorithmic processes on online platforms that discriminate on the basis of race, age, gender, ability, and other protected characteristics.  In addition, it would establish a safety and effectiveness standard for algorithms and require online platforms to describe algorithmic processes in plain language to users and maintain detailed records of these processes for review by the FTC.

b)  Consumer Safety Technology Act, or AI for Consumer Product Safety Act (H.R. 3723)

On June 22, 2021, the House voted 325-103 to approve the Consumer Safety Technology Act, or AI for Consumer Product Safety Act (H.R. 3723), which requires the Consumer Product Safety Commission to create a pilot program that uses AI to explore consumer safety questions such as injury trends, product hazards, recalled products, or products that should not be imported into the U.S.[53]  This is the second time the Consumer Safety Technology Act has passed the House.  Last year, after clearing the House, the bill did not progress in the Senate after being referred to the Committee on Commerce, Science and Transportation.[54]

c)  Data Protection Act of 2021 (S. 2134)

In June 2021, Senator Kirsten Gillibrand (D-NY) introduced the Data Protection Act of 2021, which would create an independent federal agency to protect consumer data and privacy.[55]  The main focus of the agency would be to protect individuals’ privacy related to the collection, use, and processing of personal data.[56]  The bill defines “automated decisions system” as “a computational process, including one derived from machine learning, statistics, or other data processing or artificial intelligence techniques, that makes a decision, or facilitates human decision making.”[57]  Moreover, using “automated decision system processing” is a “high-risk data practice” requiring an impact evaluation after deployment and a risk assessment on the system’s development and design, including a detailed description of the practice including design, methodology, training data, and purpose, as well as any disparate impacts and privacy harms.[58]

d)  Filter Bubble Transparency Act

On November 9, 2021, a bipartisan group of House lawmakers introduced legislation that would give people more control over the algorithms that shape their online experience.[59]  If passed, the Filter Bubble Transparency Act would require companies like Meta to offer a version of their platforms that runs on an “input-transparent” algorithm that doesn’t pull on user data to generate recommendations—in other words, provide users with an option to opt out of algorithmic content feeds based on personal data.  This House legislation is a companion bill to Senate legislation introduced in June 2021.

e)  Deepfake Task Force Act

On July 29, Senators Gary Peters (D-Mich.) and Rob Portman (R-Ohio) introduced bipartisan legislation which would create a task force within the Department of Homeland Security (DHS) tasked with producing a plan to reduce the spread and impact of deepfakes, digitally manipulated images and video nearly indistinguishable from authentic footage.[60]  The bill would build on previous legislation, which passed the Senate last year, requiring DHS to conduct an annual study of deepfakes.

6.  State and City Regulations

a)  Washington State Lawmakers Introduce a Bill to Regulate AI, S.B. 5116

On the heels of Washington’s landmark facial recognition bill (S.B. 6280) enacted last year,[61] state lawmakers and civil rights advocates proposed new rules to prohibit discrimination arising out of automated decision-making by public agencies.[62]  The bill, which is sponsored by Sen. Bob Hasegawa (D-Beacon Hill), would establish new regulations for government departments that use “automated decisions systems,” a category that includes any algorithm that analyzes data to make or support government decisions.[63]  If enacted, public agencies in Washington state would be prohibited from using automated decisions systems that discriminate against different groups or make final decisions that impact the constitutional or legal rights of a Washington resident.  The bill also bans government agencies from using AI-enabled profiling in public spaces.  Publicly available accountability reports ensuring that the technology is not discriminatory would be required before an agency can use an automated decision system.

b)  New York City Council Bill Passed to Ban Employers from Using Automated Hiring Tools without Yearly Audit to Determine Discriminatory Impact

On November 10, 2021, the New York City Council passed a bill barring AI hiring systems that do not pass annual audits checking for race- or gender-based discrimination.[64]  The bill would require the developers of such AI tools to disclose more information about the workings of their tool and would provide candidates the option of choosing an alternative process to review their application.  The legislation would impose fines on employers or employment agencies of up to $1,500 per violation.

C.  Intellectual Property

1.  Thaler v. Hirshfeld

Intellectual property has historically offered uncertain protection to AI works.  Authorship and inventorship requirements are perpetual stumbling blocks for AI-created works and inventions.  For example, in the United States, patent law has rejected the notion of a non-human inventor.[65]  The Federal Circuit has consistently maintained this approach.[66]  This year, the Artificial Inventor Project made several noteworthy challenges to the paradigm.  First, the team created DABUS, the “Device for the Autonomous Bootstrapping of Unified Sentience”—an AI system that has created several inventions.[67]  The project then partnered with attorneys to lodge test cases in the United States, Australia, the EU, and the UK.[68]  These ambitious cases reaped mixed results, likely to further diverge as AI inventorship proliferates.

In the United States, DABUS was listed as the “sole inventor” in two patent applications.[69]  In response, the USPTO issued a Notice to File Missing Parts of Non-Provisional Application because the “application data sheet or inventor’s oath or declaration d[id] not identify each inventor or his or her legal name” and stressed that the law required that inventorship “must be performed by a natural person.”[70]  The patent applicants sought review in the Eastern District of Virginia, which agreed with the USPTO.[71]  The Artificial Inventor Project faced comparable setbacks in Europe.  The European Patent Office (“EPO”) rebuffed similar patent applications, holding that the legal framework of the European patent system leads to the conclusion that the law requires human inventorship.[72]  The Legal Board of Appeal similarly held that under the European Patent Convention, patents require human inventorship.[73]  DABUS fared no better in UK patent courts, which held that the Patents Act requires that an inventor be a person.[74]  Conversely, South Africa’s patent office granted the first patent for an AI inventor.[75]  A leader of the legal team explained the differential outcome: in the UK, the patent application was “deemed withdrawn” for failure to comply associated with filing the patent forms; however, “South Africa does carry out formalities examination, and issued it, as required, on the basis of the designation in the international (Patent Cooperation Treaty [PCT]) application, which was previously accepted by WIPO.”[76]  Weeks later, the Federal Court of Australia also held that AI inventorship was not an obstacle to patentability.[77]  But it is worth noting that Australia’s patent system does not employ a substantive patent examination system.

While developments in South Africa and Australia offer encouragement to AI inventors, there is no promise for harmonization.  Instead a patchwork approach is more likely.  The United States and Europe are likely to maintain the view that AI is an inventor’s tool, but not an inventor.

2.  Google LLC v. Oracle America, Inc.

On April 5, 2021, the U.S. Supreme Court ruled in favor of Google in a multibillion-dollar copyright lawsuit filed by Oracle, holding that Google did not infringe Oracle’s copyrights under the fair use doctrine when it used material from Oracle’s APIs to build its Android smartphone platform.[78]  Notably, the Court did not rule on whether Oracle’s APIs declaring code could be copyrighted, but held that, assuming for argument’s sake the material was copyrightable, “the copying here at issue nonetheless constituted a fair use.”[79]  Specifically, the Court stated that “where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”[80]  The Court focused on Google’s transformative use of the Sun Java API and distinguished declaring code from other types of computer code in finding that all four guiding factors set forth in the Copyright Act’s fair use provision weighed in favor of fair use.[81]

While the ruling appears to turn on this particular case, it will likely have repercussions for AI and platform creators.[82]  The Court’s application of fair use could offer an avenue for companies to argue for the copying of organizational labels without a license.  Notably, the Court stated that commercial use does not necessarily tip the scales against fair use, particularly when the use of the copied material is transformative.  This could assist companies looking to use content to train their algorithms at a lower cost, putting aside potential privacy considerations (such as under BIPA).  Meanwhile, companies may also find it more challenging to govern and oversee competitive programs that use their API code for compatibility with their platforms.

D.  Healthcare

1.  FDA’s Action Plan for AI Medical Devices

In January 2021, the U.S. Food and Drug Administration (FDA) presented its first five-part Action Plan focused on Artificial Intelligence/Machine Learning (AI/ML)-based Software as a Medical Device (SaMD).  The Action Plan is a multi-pronged approach to advance the FDA’s oversight of AI/ML-based SaMD, developed in response to stakeholder feedback received from the April 2019 discussion paper, “Proposed Regulatory Framework for Modifications to Artificial Intelligence/Machine Learning-Based Software as a Medical Device.”[83]  The FDA’s stated vision is that “with appropriately tailored total product lifecycle-based regulatory oversight” AI/ML-based SaMD “will deliver safe and effective software functionality that improves the quality of care that patients receive.”[84]

As proposed in the FDA’s January 2021 Action Plan, in October 2021 the FDA held a public workshop on how information sharing about a device supports transparency to all users of AI/ML-enabled medical devices.[85]  The stated purpose of the workshop was twofold: (1) to “identify unique considerations in achieving transparency for users of AI/ML-enabled medical devices and ways in which transparency might enhance the safety and effectiveness of these devices;” and (2) “gather input from various stakeholders on the types of information that would be helpful for a manufacturer to include in the labeling of and public facing information of AI/ML-enabled medical devices, as well as other potential mechanisms for information sharing.”[86]

The workshop had three main modules on (1) the meaning and role of transparency; (2) how to promote transparency; and (3) a session for open public comments.[87]  Specific panels covered topics such as patient impressions and physician perspectives on AI transparency, the FDA’s role in promoting transparency and transparency promotion from a developer’s perspective.[88]  After the workshop, the FDA solicited public comments regarding the workshop by November 15, 2021, to be taken into consideration going forward.[89]

2.  FDA Launches List of AI and Machine Learning-Enabled Medical Devices

On September 22, 2021, the FDA shared its preliminary list of AI/ML-based SaMDs that are legally marketed in the U.S. via 510(k) clearance, De Novo authorization, or Premarket (PMA) approval.[90]  The agency developed this list to increase transparency and access to information on AI/ML-based SaMDs, and to act “as a resource to the public regarding these devices and the FDA’s work in the space.”[91]  The effort comes alongside the growing interest in developing such products to contribute to a wide variety of clinical spheres, and the increasing number of companies seeking to incorporate AI/ML technology into medical devices.  The FDA noted that one of “the greatest potential benefits of ML resides in its ability to create new and important insights from the vast amount of data generated during the delivery of health care every day.”[92]

E.  Autonomous Vehicles (“AVs”)

1.  U.S. Federal Developments

In June 2021, Representative Bob Latta (R-OH-5) again re-introduced the Safely Ensuring Lives Future Deployment and Research Act (“SELF DRIVE Act”) (H.R. 3711), which would create a federal framework to assist agencies and industries to deploy AVs around the country and establish a Highly Automated Vehicle Advisory Council within the National Highway Traffic Safety Administration (“NHTSA”).  Representative Latta had previously introduced the bill in September 23, 2020, and in previous sessions.[93]

Also in June 2021, The Department of Transportation (“DOT”) released its “Spring Regulatory Agenda,” and proposed that NHTSA establish rigorous testing standards for AVs as well as a national incident database to document crashes involving AVs.[94] The DOT indicated that there will be opportunities for public comment on the proposals.

On June 29, 2021, NHTSA issued a Standing General Order requiring manufacturers and operators of vehicles with advanced driver assistance systems (ADAS) or automated driving systems (ADS) to report crashes.[95]  ADAS is an increasingly common feature in new vehicles where the vehicle is able to control certain aspects of steering and speed.  ADS-equipped vehicles are what are more colloquially called “self-driving vehicles,” and are not currently on the market.  The Order requires that companies must report crashes within one day of learning of the crash if the crash involved a “a hospital-treated injury, a fatality, a vehicle tow-away, an air bag deployment, or a vulnerable road user such as a pedestrian or bicyclist.”[96]  An updated report is also due 10 days after the company learned of the crash.[97]  The order also requires companies to report all other crashes involving an ADS-equipped vehicle that involve an injury or property damage on a monthly basis.[98]  All reports submitted to NHTSA must be updated monthly with new or additional information.[99]

NHTSA also requested public comments in response to its Advance Notice of Proposed Rulemaking (“ANPRM”), “Framework for Automated Driving System Safety,” through the first quarter of 2021.[100]  The ANPRM acknowledged that NHTSA’s previous AV-related regulatory notices “have focused more on the design of the vehicles that may be equipped with an ADS—not necessarily on the performance of the ADS itself.”[101]  To that end, NHTSA sought input on how to approach a performance evaluation of ADS through a safety framework, and specifically whether any test procedure for any Federal Motor Vehicle Safety Standard (“FMVSS”) should be replaced, repealed, or modified, for reasons other than for considerations relevant only to ADS.  NHTSA noted that “[a]lthough the establishment of an FMVSS for ADS may be premature, it is appropriate to begin to consider how NHTSA may properly use its regulatory authority to encourage a focus on safety as ADS technology continues to develop,” emphasizing that its approach will focus on flexible “performance-oriented approaches and metrics” over rule-specific design characteristics or other technical requirements.[102]

2.  Iowa’s Automated Vehicle Legislation

In 2019, the Iowa legislature approved a law allowing driverless-capable vehicles to operate on the public highways of Iowa without a driver, if the vehicle meets certain conditions including that the vehicle must be capable of attaining minimal risk if the automated driving system malfunctions.  It also requires the vehicle’s system to comply with Iowa’s traffic laws, and the manufacturer must certify that a manufacturer be in compliance with all applicable federal motor vehicle safety standards.[103]  In August 2021, the Iowa Transportation Commission approved rules for automated vehicles.  These regulations include requirements that a “manufacturer or entity shall not test driverless-capable vehicles in Iowa without a valid permit,” and imposes restrictions on who may qualify for a driverless-capable vehicle permit.[104]  It also provides authority to the department to restrict operation of the vehicle “based on a specific functional highway classification, weather conditions, days of the week, times of day, and other elements of operational design while the automated driving system is engaged.”[105]

F.  Financial Services

Amid the increasing adoption of AI in the financial services space, the year also brought a renewed push to regulate such technological advances.  Federal agencies led the charge issuing numerous new regulations and previewing more to come in 2022.

The Federal Deposit Insurance Corporation (FDIC), the Board of Governors of the Federal Reserve System, and the Office of the Comptroller of the Currency teamed up to issue a new cybersecurity reporting rule.[106]  The rule applies to all Banking Organizations[107] governed by the agency and compels Banking Organizations to notify their primary Federal regulators within 36 hours of any sufficiently serious “computer-security incident.”[108]  The rule takes effect in April 1, 2022 and all regulated entities must comply by May 1, 2022.[109]

In addition to newly issued regulations, numerous agencies signaled their desire to regulate technological advances in financial services as soon as early 2022.  Five Agencies jointly held an open comment period on “Financial Institutions’ Use of Artificial Intelligence” from March 31, 2021, until July 1, 2021, to “understand respondents’ views on the use of AI by financial institutions in their provision of services to customers.”[110]  Kevin Greenfield, Deputy Comptroller for operational risk policy with the OCC, noted that the RFI would specifically shed light on the issue of AI potentially violating consumer protection laws by disparately impacting a protected class, among other issues.[111]  This flurry of activity by regulators indicates an active 2022 that might feature several notable new regulations governing the use of advanced technology by various forms of financial services entities.

 III.  EU POLICY & REGULATORY DEVELOPMENTS

A.  European Union

1.  EC Draft Legislation for EU-Wide AI Regulation

On April 21, 2021, the European Commission (“EC”) presented its much anticipated comprehensive draft of an AI Regulation (also referred to as the “Artificial Intelligence Act”).[112]  As highlighted in our client alert “EU Proposal on Artificial Intelligence Regulation Released“ and in our “3Q20 Artificial Intelligence and Automated Systems Legal Update“, the draft comes on the heels of a variety of publications and policy efforts in the field of AI with the aim of placing the EU at the forefront of both AI regulation and innovation.  The proposed Artificial Intelligence Act delivers on the EC president’s promise to put forward legislation for a coordinated European approach on the human and ethical implications of AI[113] and would be applicable and binding in all 27 EU Member States.

In order to “achieve the twin objective of promoting the uptake of AI and of addressing the risks associated with certain uses of such technology”[114], the EC generally opts for a risk-based approach rather than a blanket technology ban.  However, the Artificial Intelligence Act also contains outright prohibitions of certain “AI practices” and some very far-reaching provisions aimed at “high-risk AI systems”, which are somewhat reminiscent of the regulatory approach under the EU’s General Data Protection Regulation (“GDPR”); i.e. broad extra-territorial reach and hefty penalties, and will likely give rise to controversy and debate in the upcoming legislative procedure.

As the EC writes in its explanatory memorandum to the Artificial Intelligence Act, the proposed framework covers the following specific objectives:

• Ensuring that AI systems available in the EU are safe and respect EU laws and values;
• Ensuring legal certainty to facilitate investment and innovation in AI;
• Enhancing governance and effective enforcement of existing laws applicable to AI (such as product safety legislation); and
• Facilitating the development of a single market for AI and prevent market fragmentation within the EU.

While it is uncertain when and in which form the Artificial Intelligence Act will come into force, the EC has set the tone for upcoming policy debates with this ambitious new proposal.  While certain provisions and obligations may not be carried over to the final legislation, it is worth noting that the EU Parliament has already urged the EC to prioritize ethical principles in its regulatory framework.[115]  Therefore, we expect that the proposed rules will not be significantly diluted, and could even be further tightened.  Companies developing or using AI systems, whether based in the EU or abroad, should keep a close eye on further developments with regard to the Artificial Intelligence Act, and in particular the scope of the prohibited “unacceptable” and “high-risk” use cases, which, as drafted, could potentially apply to a very wide range of products and applications.

We stand ready to assist clients with navigating the potential issues raised by the proposed EU regulations as we continue to closely monitoring developments in that regard, as well as public reaction.  We can and will help advise any clients desiring to have a voice in the process.

2.  EU Parliament AI Draft Report

On November 2, 2021, the EU’s Special Committee released its Draft Report on AI in a Digital Age for the European Parliament, which highlights the benefits of use of AI such as fighting climate change and pandemics, and also various ethical and legal challenges.[116]  According to the draft report, the EU should not regulate AI as a technology; instead, the type, intensity and timing of regulatory intervention should solely depend on the type of risk associated with a particular use of an AI system.  The draft report also highlights the challenge of reaching a consensus within the global community on minimum standards for the responsible use of AI, and concerns about military research and technological developments in weapon systems without human oversight.

3.  EU Council Proposes ePrivacy Regulation

On February 10, 2021, the Council of the European Union (the “EU Council”), the institution representing EU Member States’ governments, provided a negotiating mandate with regard to a revision of the ePrivacy Directive and published an updated proposal for a new ePrivacy Regulation.  Contrary to the current ePrivacy Directive, the new ePrivacy Regulation would not have to be implemented into national law, but would apply directly in all EU Member States without transposition.

The ePrivacy Directive contains rules related to the privacy and confidentiality in connection with the use of electronic communications services.  However, an update of these rules is seen as critical given the sweeping and rapid technological advancement that has taken place since it was adopted in 2002.  The new ePrivacy Regulation, which would repeal and replace the ePrivacy Directive, has been under discussion for several years now.

Pursuant to the EU Council’s proposal, the ePrivacy Regulation will also cover machine-to-machine data transmitted via a public network, which might create restrictions on the use of data by companies developing AI-based products and other data-driven technologies.  As a general rule, all electronic communications data will be considered confidential, except when processing or other usage is expressly permitted by the ePrivacy Regulation.  Similar to the European General Data Protection Regulation (“GDPR”), the ePrivacy Regulation would also apply to processing that takes place outside of the EU and/or to service providers established outside the EU, provided that the end users of the electronic communications services, whose data is being processed, are located in the EU.

However, unlike GDPR, the ePrivacy Regulation would cover all communications content transmitted using publicly available electronic communications services and networks, and not only personal data.  Further, metadata (such as location and time of receipt of the communication) also falls within the scope of the ePrivacy Regulation.

It is expected that the draft proposal will undergo further changes during negotiations with the European Parliament.  Therefore, it remains to be seen whether the particular needs of highly innovative data-driven technologies will be taken into account—by creating clear and unambiguous legal grounds other than user consent for processing of communications content and metadata for the purpose of developing, improving and offering AI-based products and applications.  If the negotiations between the EU Council and the EU Parliament proceed without any further delays, the new ePrivacy Regulation could enter into force in 2023, at the earliest.

4.  EDPB & EDPS Call for Ban on Use of AI for Facial Recognition in Publicly Accessible Spaces

On June 21, 2021, the European Data Protection Board (“EDPB”) and European Data Protection Supervisor (“EDPS”) published a joint Opinion calling for a general ban on “any use of AI for automated recognition of human features in publicly accessible spaces, such as recognition of faces, gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioral signals, in any context.”[117]

In their Opinion, the EDPB and the EDPS welcomed the risk-based approach underpinning the EC’s proposed AI Regulation and emphasized that it has important data protection implications.  The Opinion also notes the role of the EDPS—designated by the EC’s AI Regulation as the competent authority and the market surveillance authority for the supervision of the EU institutions—should be further clarified.[118]  Notably, the Opinion also recommended “a ban on AI systems using biometrics to categorize individuals into clusters based on ethnicity, gender, political or sexual orientation, or other grounds on which discrimination is prohibited under Article 21 of the Charter of Fundamental Rights.”

Further, the EDPB and the EDPS noted that they “consider that the use of AI to infer emotions of a natural person is highly undesirable and should be prohibited, except for very specified cases, such as some health purposes, where the patient emotion recognition is important, and that the use of AI for any type of social scoring should be prohibited.”

 IV.  UK POLICY & REGULATORY DEVELOPMENTS

A.  UK Launches National AI Strategy

On September 22, 2021, the UK Government published its ‘National AI Strategy’ (the “Strategy”)[119].  According to the Parliamentary Under Secretary of State at the Department for Digital, Culture, Media and Sport, Chris Philip MP, the aim of the Strategy is to outline “the foundations for the next ten years’ growth” to help the UK seize “the potential of artificial intelligence” and to allow it to shape “the way the world governs it”[120].  The Strategy has three pillars: (1) investing in the long-term needs of the AI ecosystems; (2) ensuring AI benefits all sectors and regions; and (3) governing AI effectively.

To that end, the UK aims to attract global talent to develop AI technologies by continuing to support existing academia-related interventions, as well as broadening the routes that talented AI researchers and individuals can work in the UK (for example, by introducing new VISA routes).  The UK also seeks to adopt a new approach to research, development and innovation in AI, by, for example, launching a National AI Research and Innovation (R&I) Programme, and also collaborate internationally on shared challenges in research and development (for example, by implementing the US UK Declaration on Cooperation in AI Research and Development.

The Strategy also highlights that effective, pro-innovation governance of AI means that, amongst other things, the UK has a clear, proportionate and effective framework for regulating AI that supports innovation while addressing actual risks and harms.  Currently, the UK’s regulations for AI are arranged sector by sector ranging from competition to data protection.  However, the Strategy acknowledges that this approach can lead to issues including inconsistent approaches across sectors and overlaps between regulatory mandates.  To address this, the third pillar outlines key upcoming initiatives to improve AI governance: the Office for AI will publish a White Paper in early 2022, which will outline the Government’s position on the potential risks and harms posed by AI systems.  The Government will also take other actions including piloting an AI Standards Hub to coordinate UK engagement in establishing AI rules globally, and collaborating with the Alan Turing Institute to provide updated guidance on the ethical and safety issues concerning AI.

B.  UK Government Publishes Ethics, Transparency and Accountability Framework for Automated Decision Making

On May 13, 2021, the UK Government published a framework setting out how public sector bodies can deploy automated decision-making technology ethically and sustainably (the “Framework”).[121]  The Framework segregates automated decision making into two categories: (1) solely automated decision making – decisions that are “fully automated with no human judgment” ; and (2) automated assisted decision making – when “automated or algorithmic systems assist human judgment and decision making.”  The Framework applies to both types and sets out a seven-step process to follow when using automated decision-making: (1) test to avoid any unintended outcomes or consequences; (2) deliver fair services for all users and citizens; (3) be clear who is responsible; (4) handle data safely and protect citizens’ interests; (5) help users and citizens understand how it impacts them; (6) ensure compliance with the law, including data protection laws, the Equality Act 2010 and the Public Sector Equality Duty; and (7) ensure algorithms or systems are continuously monitored and mitigate against unintended consequences.

C.  UK Government Publishes Standard for Algorithmic Transparency

Algorithmic transparency refers to openness about how algorithmic tools support decisions. The Cabinet Office’s Central Digital and Data Office (the “CDDO”) developed an algorithmic transparency standard for Government departments and public sector bodies, which was published on November 29, 2021[122] (the “Standard”).  This makes the UK one of the first countries in the world to produce a national standard for algorithmic transparency.  The Standard is in a piloting phase, following which the CDDO will review the Standard based on feedback gathered and seek formal endorsement from the Data Standards Authority in 2022.

D.  ICO Offers Insight on its Policy Around the Use of Live Facial Recognition in the UK

On June 18, 2021, the Information Commissioner’s Office (“ICO”) published a Commissioner’s Opinion on the use of live facial recognition (“LFR”) in the UK (“the Opinion”).[123]  Facial recognition is the process by which a person can be identified or otherwise recognized from a digital facial image.  LFR is a type of facial recognition technology that often involves the automatic collection of biometric data.  The Commissioner previously published an opinion in 2019 on the use of LFR in a law enforcement context, concluding that data protection law sets “high standards” for the use of LFR to be lawful when used in public spaces.  The Opinion builds on this work by focusing on the use of LFR in public spaces—defined as any physical space outside a domestic setting, whether publicly or privately owned—outside of law enforcement.  The Opinion makes clear that first and foremost, controllers seeking to use LFR must comply with the UK General Data Protection Regulation (“UK GDPR”) and the Data Protection Act 2018.

In terms of enforcement, the ICO announced on 29 November 2021 its intention to impose a potential fine of over just £17 million on Clearview AI Inc for allegedly gathering images of a substantial number of people from the UK without their knowledge, in breach of the UK’s data protection laws.  The ICO also issued a provisional notice to the company to stop further processing the personal data of people in the UK and to delete it.  The ICO’s preliminary view is that Clearview AI appears to have failed to comply with UK data protection laws in several ways including by failing to have a lawful reason for collecting the information and failing to meet the higher data protection standards required for biometric data under the UK GDPR.  Clearview AI Inc will now have the opportunity to make representations in respect of the alleged breaches, following which the ICO is expected to make a final decision.  This action taken by the ICO highlights the importance of ensuring that companies are compliant with UK data protection laws prior to processing and deploying biometric data.

E.  UK Financial Regulator Vows to Boost Use of AI in Oversight

The UK’s Prudential Regulation Authority (“PRA”) intends to make greater use of AI, according to its Business Plan for 2021/22.[124]  The focus on AI is part of the PRA’s aim to follow through on commitments set out in its response to the Future of Finance report (published in 2019) to develop further their RegTech strategy.  The Future of Finance report recommended that supervisors take advantage of the ongoing developments in data science and processing power, including AI and machine learning, that automate data collection and processing.[125]

F.  Consultation on the Future Regulation of Medical Devices in the UK

On September 16, 2021, the Medicines & Healthcare products Regulatory Agency (“MHRA”) published a “Consultation on the future regulation of medical devices in the United Kingdom”, which ran until November 25, 2021 (the “Consultation”).[126]  The Consultation invited members of the public to provide their views on possible changes to the regulatory framework for medical devices in the UK, with the aim of developing a future regime for medical devices which enables (i) improved patient and public safety; (ii) greater transparency of regulatory decision making and medical device information; (iii) close alignment with international best practice and (iv) more flexible, responsive and proportionate regulation of medical devices.

The Consultation set out proposed changes for Software as a medical device (“SaMD”) including AI as a medical device (“AIaMD”), noting that current medical device regulations contain few provisions specifically aimed at regulating SaMD or AIaMD. The MHRA’s proposals therefore include amending UK medical devices regulations in order to both protect patients and support responsible innovation in digital health.  Some of the possible changes put forward by the MHRA in the Consultation include (amongst others) defining ‘software’, clarifying or adding to the requirements for selling SaMD via electronic means, changing the classification of SaMD to ensure the scrutiny applied to these medical devices is more commensurate with their level of risk and more closely harmonised with international practice.  The MHRA intends that any amendments to the UK medical device framework will come into force in July 2023.

The MHRA also separately published an extensive work programme on software and AI as a medical device to deliver bold change to provide a regulatory framework that provides a high degree of protection for patients and public, but also to ensure that the UK is the home of responsible innovation for medical device software.[127]  Any legislative change proposed by the work programme will build upon wider reforms to medical device regulation brought about by the Consultation.

________________________

   [1]   Steven Overly & Melissa Heikkilä, “China wants to dominate AI. The U.S. and Europe need each other to tame it.,” Politico (Mar. 2, 2021), available at https://www.politico.com/news/2021/03/02/china-us-europe-ai-regulation-472120.

   [2]   Id.

   [3]   Id.

   [4]   For more detail, see our Fourth Quarter and 2020 Annual Review of Artificial Intelligence and Automated Systems.

   [5]   The White House, Press Release (Archived), The White House Launches the National Artificial Intelligence Initiative Office (Jan. 12, 2021), available at https://trumpwhitehouse.archives.gov/briefings-statements/white-house-launches-national-artificial-intelligence-initiative-office/.

   [6]   Id.

   [7]   The White House, Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking (Jan. 27, 2021), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/memorandum-on-restoring-trust-in-government-through-scientific-integrity-and-evidence-based-policymaking/.

   [8]   Letter from Deputy Director Jane Lubchenco and Deputy Director Alondra Nelson, OSTP to all federal agencies (March 29, 2021), available at https://int.nyt.com/data/documenttools/si-task-force-nomination-cover-letter-and-call-for-nominations-ostp/ecb33203eb5b175b/full.pdf.

   [9]   The White House, Executive Order on the President’s Council of Advisors on Science and Technology (Jan. 27, 2021), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-presidents-council-of-advisors-on-science-and-technology/.

  [10]   Dan Reilly, “White House A.I. director says U.S. should model Europe’s approach to regulation,” Fortune (Nov. 10, 2021), available at https://fortune.com/2021/11/10/white-house-a-i-director-regulation/.

  [11]   S. 1260, 117th Cong. (2021).

  [12]   Id., §§4201-4207.

  [13]   Id., §4202.

  [14]   Id., §4204. For more details on the NSCAI report and 2020 Executive Order, please see our Fourth Quarter and 2020 Annual Review of Artificial Intelligence and Automated Systems.

  [15]   White House, “Join the Effort to Create a Bill of Rights for an Automated Society” (Nov. 10, 2021), available at https://www.whitehouse.gov/ostp/news-updates/2021/11/10/join-the-effort-to-create-a-bill-of-rights-for-an-automated-society/.

  [16]   Dave Nyczepir, “White House technology policy chief says AI bill of rights needs ‘teeth,’” FedScoop (Nov.10, 2021), available at https://www.fedscoop.com/ai-bill-of-rights-teeth/.

  [17]   Id.

  [18]   Office of Science and Technology Policy, Notice of Request for Information (RFI) on Public and Private Sector Uses of Biometric Technologies (Oct. 8, 2021), available at https://www.federalregister.gov/documents/2021/10/08/2021-21975/notice-of-request-for-information-rfi-on-public-and-private-sector-uses-of-biometric-technologies.

  [19]   U.S. Government Accountability Office, Artificial Intelligence: An Accountability Framework for Federal Agencies and Other Entities, Highlights of GAO-21-519SP, available at https://www.gao.gov/assets/gao-21-519sp-highlights.pdf.

  [20]   The key monitoring practices identified by the GAO are particularly relevant to organizations and companies seeking to implement governance and compliance programs for AI-based systems and develop metrics for assessing the performance of the system. The GAO report notes that monitoring is a critical tool for several reasons: first, it is necessary to continually analyze the performance of an AI model and document findings to determine whether the results are as expected, and second, monitoring is key where a system is either being scaled or expanded, or where applicable laws, programmatic objectives, and the operational environment change over time.

  [21]   Draft NIST Special Publication 1270, A Proposal for Identifying and Managing Bias in Artificial Intelligence (June 2021), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.1270-draft.pdf?_sm_au_=iHVbf0FFbP1SMrKRFcVTvKQkcK8MG.

  [22]   National Institute of Science and Technology, Comments Received on A Proposal for Identifying and Managing Bias in Artificial Intelligence (SP 1270), available at https://www.nist.gov/artificial-intelligence/comments-received-proposal-identifying-and-managing-bias-artificial.

  [23]   H.R. 5515, 115th Congress (2017-18).

  [24]   The National Security Commission on Artificial Intelligence, Previous Reports, available at https://www.nscai.gov/previous-reports/.

  [25]   NSCAI, The Final Report (March 1, 2021), available at https://www.nscai.gov/wp-content/uploads/2021/03/Full-Report-Digital-1.pdf.

  [26]   Defense Innovation Unit, Responsible AI Guidelines: Operationalizing DoD’s Ethical Principles for AI (Nov. 14, 2021), available at https://www.diu.mil/responsible-ai-guidelines.

  [27]   Securing the Information and Communications Technology and Services Supply Chain, U.S. Department of Commerce, 86 Fed. Reg. 4923 (Jan. 19, 2021) (hereinafter “Interim Final Rule”).

  [28]   For more information, please see our Artificial Intelligence and Automated Systems Legal Update (1Q21).

  [29]   S. 1776, 117th Cong. (2021).

  [30]   S. 1705, 117th Cong. (2021).

  [31]   Portman, Heinrich Announce Bipartisan Artificial Intelligence Bills Included in FY 2022 National Defense Authorization Act, Office of Sen. Rob Portman (Dec. 15, 2021), available at https://www.portman.senate.gov/newsroom/press-releases/portman-heinrich-announce-bipartisan-artificial-intelligence-bills-included.

  [32]   FTC, Business Blog, Elisa Jillson, Aiming for truth, fairness, and equity in your company’s use of AI (April 19, 2021), available at https://www.ftc.gov/news-events/blogs/business-blog/2021/04/aiming-truth-fairness-equity-your-companys-use-ai.

  [33]   FTC, Protecting Consumer Privacy in a Time of Crisis, Remarks of Acting Chairwoman Rebecca Kelly Slaughter, Future of Privacy Forum (Feb. 10, 2021), available at https://www.ftc.gov/system/files/documents/public_statements/1587283/fpf_opening_remarks_210_.pdf.

  [34]   FTC, Using Artificial Intelligence and Algorithms (April 8, 2020), available at https://www.ftc.gov/news-events/blogs/business-blog/2020/04/using-artificial-intelligence-algorithms.

  [35]   FTC, FTC Chair Lina M. Khan Announces New Appointments in Agency Leadership Positions (Nov. 19, 2021), available at https://www.ftc.gov/news-events/press-releases/2021/11/ftc-chair-lina-m-khan-announces-new-appointments-agency.

  [36]   FTC, Resolution Directing Use of Compulsory Process Regarding Abuse of Intellectual Property (Sept. 2, 2021), available at https://www.law360.com/articles/1422050/attachments/0.  These resolutions were passed by the Democratic commissioners on a 3-2 party line vote.  The GOP commissioners issued a dissenting statement, arguing that blanket authorizations remove commission oversight while doing nothing to make investigations more effective.

  [37]   Ben Brody, FTC official warns of seizing algorithms ‘juiced by ill-gotten data’ (July 27, 2021), available at https://www.protocol.com/bulletins/ftc-seize-algorithms-ill-gotten?_sm_au_=iHV5LNM5WjmJt5JpFcVTvKQkcK8MG.

  [38]   The FTC had previously relied on Section 13(b) to pursue disgorgement via injunctive relief, mostly concerning consumer protection violations. The Supreme Court found, however, that the injunction provision authorized the FTC only to seek a court order halting the illegal activity and did not give it the power to ask a court to impose monetary sanctions.  A similar bill, which was introduced the week of the Supreme Court ruling and was endorsed by 25 state attorneys general and President Joe Biden, passed the House over the summer in a nearly party-line vote, but hasn’t yet been moved through the Senate.  Republicans opposed that initiative over concerns about due process and the bill’s 10-year statute of limitations.  The new bill, on the other hand, includes a three-year statute of limitations and wording that requires the commission to prove that the company accused of breaking the law did so intentionally.

  [39]   S. _ 117th Cong. (2022-2023) https://www.law360.com/cybersecurity-privacy/articles/1449355/gop-sen-floats-bill-to-restore-ftc-s-restitution-powers?nl_pk=4e5e4fee-ca5f-4d2e-90db-5680f7e17547&utm_source=newsletter&utm_medium=email&utm_campaign=cybersecurity-privacy

  [40]   Harry Brignull, the PhD who coined the term “dark patterns” has developed a taxonomy, which may include:  trick questions; sneak into basket (in an online purchase, last minute items are added to the basket, without the user’s involvement); roach motel (services are easily entered into but difficult to cancel); privacy over-disclosure (users are tricked into sharing or making public more information than intended); price comparison prevention (websites make it difficult to compare prices from other providers); misdirection; hidden costs; bait and switch; confirmshaming (users are guilted into something or a decline option is phrased to shame the users, e.g. “No, I don’t want to save money”); disguised ads; forced continuity (free trial unexpectedly turns into a paid subscription); and friend spam (user contact list is used to send unwanted messages from the user).  See Harry Brignull, Types of Dark Pattern, Dark Patterns, available at https://www.darkpatterns.org/types-of-dark-pattern.

  [41]   Bringing Dark Patterns to Light:  An FTC Workshop, Federal Trade Commission, April 29, 2021, available at https://www.ftc.gov/news-events/events-calendar/bringing-dark-patterns-light-ftc-workshop.

  [42]   Jon Hill, CFPB’s Newest Hook On Big Tech May Be 1970s Data Law, Law360 (Nov. 16, 2021), available at https://www.law360.com/technology/articles/1439641/cfpb-s-newest-hook-on-big-tech-may-be-1970s-data-law?nl_pk=0d08c9f5-462a-4ad6-9d20-292663da6d5e&utm_source=newsletter&utm_medium=email&utm_campaign=technology.

  [43]   CFPB, CFPB Takes Action to Stop False Identification by Background Screeners (Nov. 4, 2021), available at https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-to-stop-false-identification-by-background-screeners/?_sm_au_=iHVFR9tfrf49TNNMFcVTvKQkcK8MG.

  [44]   EEOC, EEOC Launches Initiative on Artificial Intelligence and Algorithmic Fairness (Oct. 28, 2021), available at https://www.eeoc.gov/newsroom/eeoc-launches-initiative-artificial-intelligence-and-algorithmic-fairness?_sm_au_=iHV5LNM5WjmJt5JpFcVTvKQkcK8MG.

  [45]   FTC, In the Matter of Everalbum, Inc. and Paravision, Commission File No. 1923172  (Jan. 11, 2021), available at https://www.ftc.gov/enforcement/cases-proceedings/1923172/everalbum-inc-matter.

  [46]   FTC, Statement of Commissioner Rohit Chopra, In the Matter of Everalbum and Paravision, Commission File No. 1923172 (Jan. 8, 2021), available at https://www.ftc.gov/system/files/documents/public_statements/1585858/updated_final_chopra_statement_on_everalbum_for_circulation.pdf.

[47]    See, e.g., Vance v. Amazon, 2:20-cv-01084-JLR (W.D. Wash. Oct. 7, 2021); Vernita Miracle-Pond et al. v. Shutterfly Inc., No. 2019-CH-07050, (Ill. Cir. Ct. of Cook County); Carpenter v. McDonald’s Corp., No. 2021-CH-02014 (Ill. Cir. Ct. May 28, 2021); Rivera v. Google, Inc., No. 1:16-cv-02714 (N.D. Ill. Aug. 30, 2021); Pena v. Microsoft Corp., No. 2021-CH-02338 (Ill. Cir. Ct. May 12, 2021); B.H. v. Amazon.com Inc., No. 2021-CH-02330 (Ill. Cir. Ct. May 12, 2021), Pruden v. Lemonade, Inc., No. 1:21-cv-07070 (S.D.N.Y. Aug. 20, 2021).

  [48]   S. _, 117th Cong. (2021); see also Press Release, Senators Markey, Merkley Lead Colleagues on Legislation to Ban Government Use of Facial Recognition, Other Biometric Technology (June 15, 2021), available at https://www.markey.senate.gov/news/press-releases/senators-markey-merkley-lead-colleagues-on-legislation-to-ban-government-use-of-facial-recognition-other-biometric-technology.

  [49]   For more details, please see our previous alerts: Fourth Quarter and 2020 Annual Review of Artificial Intelligence and Automated Systems.

  [50]   H.B. 2031, Reg. Session (2020-2021).

  [51]   For more details, see our Fourth Quarter and 2020 Annual Review of Artificial Intelligence and Automated Systems.

  [52]   S. 1896, 117th Cong. (2021); see also Press Release, Senator Markey, Rep. Matsui Introduce Legislation to Combat Harmful Algorithms and Create New Online Transparency Regime (May 27, 2021), available at https://www.markey.senate.gov/news/press-releases/senator-markey-rep-matsui-introduce-legislation-to-combat-harmful-algorithms-and-create-new-online-transparency-regime.

  [53]   H.R. 3723, 117th Cong. (2021).

  [54]   Elise Hansen, House Clears Bill To Study Crypto And Consumer Protection, Law360 (June 23, 2021), available at https://www.law360.com/articles/1396110/house-clears-bill-to-study-crypto-and-consumer-protection.

  [55]   S. 2134, 117th Cong. (2021); see also Press Release, Office of U.S. Senator Kirsten Gillibrand, Press Release, Gillibrand Introduces New And Improved Consumer Watchdog Agency To Give Americans Control Over Their Data (June 17, 2021), available at https://www.gillibrand.senate.gov/news/press/release/gillibrand-introduces-new-and-improved-consumer-watchdog-agency-to-give-americans-control-over-their-data.

  [56]   Under the proposed legislation, “personal data” is defined as “electronic data that, alone or in combination with other data—(A) identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, household, or device; or (B) could be used to determine that an individual or household is part of a protected class.”  Data Protection Act of 2021, S. 2134, 117th Cong. § 2(16) (2021).

  [57]   Id., § 2(3) (2021).

  [58]   Id., § 2(11)-(13) (2021).

  [59]   H.R. 5921 (2021), available at https://www.congress.gov/bill/117th-congress/house-bill/5921/cosponsors?s=1&r=90&overview=closed; S.B. 2024 (2021), available at https://www.congress.gov/bill/117th-congress/senate-bill/2024/text.

  [60]   U.S. Senate Committee on Homeland Security & Governmental Affairs, Tech Leaders Support Portman’s Bipartisan Deepfake Task Force Act to Create Task Force at DHS to Combat Deepfakes (July 30, 2021), available at https://www.hsgac.senate.gov/media/minority-media/tech-leaders-support-portmans-bipartisan-deepfake-task-force-act-to-create-task-force-at-dhs-to-combat-deepfakes.

  [61]   For more details, see our Fourth Quarter and 2020 Annual Review of Artificial Intelligence and Automated Systems.

  [62]   S.B. 5116, Reg. Session (2021-22).

  [63]   Monica Nickelsburg, Washington state lawmakers seek to ban government from using discriminatory AI tech, GeewWire (Feb. 13, 2021), available at https://www.geekwire.com/2021/washington-state-lawmakers-seek-ban-government-using-ai-tech-discriminates/.

  [64]   N.Y.C., No. 1894-2020A (Nov. 11, 2021), available at https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4344524&GUID=B051915D-A9AC-451E-81F8-6596032FA3F9.

  [65]   See Thaler v. Hirshfeld, No. 120CV903LMBTCB, 2021 WL 3934803, at *8 (E.D. Va. Sept. 2, 2021) (noting “overwhelming evidence that Congress intended to limit the definition of ‘inventor’ to natural persons.”).

  [66]   See, e.g., Univ. of Utah v. Max-Planck-Gesellschaft, 734 F.3d 1315, 1323 (Fed. Cir. 2013); Beech Aircraft Corp. v. EDO Corp., 990 F.2d 1237, 1248 (Fed. Cir. 1993).

  [67]   The Artificial Inventor Project ambitiously describes DABUS as an advanced AI system.  DABUS is a “creative neural system” that is “chaotically stimulated to generate potential ideas, as one or more nets render an opinion about candidate concepts” and “may be considered ‘sentient’ in that any chain-based concept launches a series of memories (i.e., affect chains) that sometimes terminate in critical recollections, thereby launching a tide of artificial molecules.”  Ryan Abbott,  The Artificial Inventor behind this project, available at https://artificialinventor.com/dabus/.

  [68]   Ryan Abbott,  The Artificial Inventor Project, available at https://artificialinventor.com/frequently-asked-questions/.

  [69]   Thaler v. Hirshfeld, 2021 WL 3934803, at *2.

  [70]   Id. at *2.

  [71]   Id. at *8.

  [72]   The European Patent Office, EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor, Jan. 28, 2020, available at https://www.epo.org/news-events/news/2020/20200128.html.

  [73]   Dani Kass, EPO Appeal Board Affirms Only Humans Can Be Inventors, Law360, Dec. 21, 2021.

  [74]   Thomas Kirby, UK court dismisses DABUS – an AI machine cannot be an inventor, Lexology, Dec. 14, 2021.

  [75]   World’s first patent awarded for an invention made by an AI could have seismic implications on IP law, University of Surrey, July 28, 2021.

  [76]   Gene Quinn, DABUS Gets Its First Patent in South Africa Under Formalities Examination, IP Watchdog, July 29, 2021, available at https://www.ipwatchdog.com/2021/07/29/dabus-gets-first-patent-south-africa-formalities-examination/id=136116/.

  [77]   Thaler v Commissioner of Patents [2021] FCA 879.

  [78]   Google LLC v. Oracle Am., Inc., No. 18-956, 2021 WL 1240906, (U.S. Apr. 5, 2021).

  [79]   Id., at *3.

  [80]   Id. at *20.

  [81]   See id.

  [82]   Bill Donahue, Supreme Court Rules For Google In Oracle Copyright Fight, Law360 (April 5, 2021), available at https://www.law360.com/ip/articles/1336521.

  [83]   See U.S. Food & Drug Admin., Artificial Intelligence/Machine Learning (AI-ML)-Based Software as a Medical Device (SaMD) Action Plan 1-2 (2021), https://www.fda.gov/media/145022/download [hereinafter FDA AI Action Plan]; U.S. Food & Drug Admin., FDA Releases Artificial Intelligence/Machine Learning Action Plan (Jan. 12, 2021), https://www.fda.gov/news-events/press-announcements/fda-releases-artificial-intelligencemachine-learning-action-plan.  See also U.S. Food & Drug Admin., Proposed Regulatory Framework for Modifications to Artificial Intelligence/Machine Learning (AI/ML)-Based Software as a Medical Device (SaMD) Discussion Paper and Request for Feedback (2019), https://www.fda.gov/media/122535/download.

  [84]   FDA AI Action Plan, supra note 1, at 1.

  [85]   U.S. Food & Drug Admin., Virtual Public Workshop – Transparency of Artificial Intelligence/Machine Learning-enabled Medical Devices (last updated Nov. 26, 2021) https://www.fda.gov/medical-devices/workshops-conferences-medical-devices/virtual-public-workshop-transparency-artificial-intelligencemachine-learning-enabled-medical-devices.

  [86]   Id.

  [87]   Id.

  [88]   Id.

  [89]   Id.

  [90]   U.S. Food & Drug Admin., Artificial Intelligence and Machine Learning (AI/ML)-Enabled Medical Devices (last updated Sept. 22, 2021), https://www.fda.gov/medical-devices/software-medical-device-samd/artificial-intelligence-and-machine-learning-aiml-enabled-medical-devices.

  [91]   Id.

  [92]   Id.

  [93]   As we addressed in previous legal updates, the House previously passed the SELF DRIVE Act (H.R. 3388) by voice vote in September 2017, but its companion bill (the American Vision for Safer Transportation through Advancement of Revolutionary Technologies (“AV START”) Act (S. 1885)) stalled in the Senate.  For more details, see our Fourth Quarter and 2020 Annual Review of Artificial Intelligence and Automated Systems.

  [94]   U.S. Dep’t of Transp., Press Release, U.S. Department of Transportation Releases Spring Regulatory Agenda (June 11, 2021), available at https://www.transportation.gov/briefing-room/us-department-transportation-releases-spring-regulatory-agenda.

  [95]   U.S. Dep’t of Transp., NHTSA Orders Crash Reporting for Vehicles Equipped with Advanced Driver Assistance Systems and Automated Driving Systems, available at https://www.nhtsa.gov/press-releases/nhtsa-orders-crash-reporting-vehicles-equipped-advanced-driver-assistance-systems

  [96]   Id.

  [97]   Id.

  [98]   Id.

  [99]   Id.

[100]   49 CFR 571, available at https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/ads_safety_principles_anprm_website_version.pdf

[101]   Id., at 6.

[102]   Id., at 7-8.

[103]   SF 302, Reg. Session (2019-2020).

[104]   ARC 5621C, Notice of Intended Action, available at https://rules.iowa.gov/Notice/Details/5621C.

[105]   Id.

[106]   Carly Page, US Banks Must Soon Report Significant Cybersecurity Incidents Within 36 Hours, (Nov. 19, 2021), available at https://techcrunch.com/2021/11/19/us-banks-report-cybersecurity-incidents/?guccounter=1.

[107]   “Banking Organizations” is a defined term in the rule and applies to a slightly different mix of entities with respect to each agency.

[108]   86 Fed. Reg. 66424.

[109]   Id. at 66438.

[110]   86 Fed. Reg. 16837.

[111]   Al Barbarino, Bank Regulators Eye Updated Guidance to Fight Bias in AI (Oct. 21, 2021), available at https://www.law360.com/cybersecurity-privacy/articles/1433299/.

[112]   EC, Proposal for a Regulation of the European Parliament and of the Council laying down Harmonised Rules on Artificial Intelligence and amending certain Union Legislative Acts (Artificial Intelligence Act), COM(2021) 206 (April 21, 2021), available at https://digital-strategy.ec.europa.eu/en/library/proposal-regulation-european-approach-artificial-intelligence.

[113]   Ursula von der Leyen, A Union that strives for more: My agenda for Europe, available at https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf.

[114]   Supra, note 39, p. 1.

[115]    European Parliament, Resolution of 20 October 2020 with recommendations to the Commission on a framework of ethical aspects of artificial intelligence, robotics and related technologies (2020/2012 (INL)) (Oct. 20, 2020), available at https://www.europarl.europa.eu/doceo/document/TA-9-2020-0275_EN.pdf.  For more detail, see our “3Q20 Artificial Intelligence and Automated Systems Legal Update“.

[116]   Draft Report on AI in a Digital Age for the European Parliament (Nov. 2, 2021), available at https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/AIDA/PR/2021/11-09/1224166EN.pdf

[117]   Joint Opinion 5/2021 on the proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence, available at https://edpb.europa.eu/system/files/2021-06/edpb-edps_joint_opinion_ai_regulation_en.pdf.

[118]   EDPS, Press Release, EDPB & EDPS Call For Ban on Use of AI For Automated Recognition of Human Features in Publicly Accessible Spaces, and Some Other Uses of AI That Can Lead to Unfair Discrimination (June 21, 2021), available at https://edps.europa.eu/press-publications/press-news/press-releases/2021/edpb-edps-call-ban-use-ai-automated-recognition_en?_sm_au_=iHVWn7njFDrbjJK3FcVTvKQkcK8MG.

[119]   UK Government, National AI Strategy (22 September 2021), available at https://www.gov.uk/government/publications/national-ai-strategy.

[120]   UK Government, New ten-year plan to make the UK a global AI superpower (22 September 2021), available at https://www.gov.uk/government/news/new-ten-year-plan-to-make-britain-a-global-ai-superpower.

[121] UK Government, Ethics, Transparency and Accountability Framework for Automated Decision-Making (13 May 2021), available at https://www.gov.uk/government/publications/ethics-transparency-and-accountability-framework-for-automated-decision-making.

[122] UK Government, UK government publishes pioneering standard for algorithmic transparency (November 29, 2021), available at https://www.gov.uk/government/news/uk-government-publishes-pioneering-standard-for-algorithmic-transparency–2.

[123]   UK Government, Information Commissioner’s Office, The use of live facial recognition technology in public places (June 18, 2021), available at https://ico.org.uk/media/for-organisations/documents/2619985/ico-opinion-the-use-of-lfr-in-public-places-20210618.pdf.

[124]   UK Gov’t, Prudential Regulation Authority Business Plan 2021/22 (May 24, 2021), available at https://www.bankofengland.co.uk/prudential-regulation/publication/2021/may/pra-business-plan-2021-22.

[125]   UK Gov’t, Future of Finance, Bank of England (June 2019), available at https://www.bankofengland.co.uk/-/media/boe/files/report/2019/future-of-finance-report.pdf?la=en&hash=59CEFAEF01C71AA551E7182262E933A699E952FC.

[126]   UK Gov’t, Consultation on the future regulation of medical devices in the United Kingdom (Sept. 16, 2021), available at https://www.gov.uk/government/consultations/consultation-on-the-future-regulation-of-medical-devices-in-the-united-kingdom.

[127]   UK Gov’t, Software and AI as a Medical Device Change Programme (Sept. 16, 2021), available at https://www.gov.uk/government/publications/software-and-ai-as-a-medical-device-change-programme.

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The following Gibson Dunn lawyers prepared this client update: H. Mark Lyon, Frances Waldmann, Emily Lamm, Tony Bedel, Kevin Kim, Brendan Krimsky, Prachi Mistry, Samantha Abrams-Widdicombe, Leon Freyermuth, Iman Charania, and Kanchana Harendran.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Artificial Intelligence and Automated Systems Group, or the following authors:

H. Mark Lyon – Palo Alto (+1 650-849-5307, mlyon@gibsondunn.com)
Frances A. Waldmann – Los Angeles (+1 213-229-7914,fwaldmann@gibsondunn.com)

Please also feel free to contact any of the following practice group members:

Artificial Intelligence and Automated Systems Group:
H. Mark Lyon – Chair, Palo Alto (+1 650-849-5307, mlyon@gibsondunn.com)
J. Alan Bannister – New York (+1 212-351-2310, abannister@gibsondunn.com)
Patrick Doris – London (+44 (0)20 7071 4276, pdoris@gibsondunn.com)
Kai Gesing – Munich (+49 89 189 33 180, kgesing@gibsondunn.com)
Ari Lanin – Los Angeles (+1 310-552-8581, alanin@gibsondunn.com)
Robson Lee – Singapore (+65 6507 3684, rlee@gibsondunn.com)
Carrie M. LeRoy – Palo Alto (+1 650-849-5337, cleroy@gibsondunn.com)
Alexander H. Southwell – New York (+1 212-351-3981, asouthwell@gibsondunn.com)
Christopher T. Timura – Washington, D.C. (+1 202-887-3690, ctimura@gibsondunn.com)
Eric D. Vandevelde – Los Angeles (+1 213-229-7186, evandevelde@gibsondunn.com)
Michael Walther – Munich (+49 89 189 33 180, mwalther@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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On January 18, 2022, the U.S. Federal Trade Commission (“FTC”) and the Department of Justice’s Antitrust Division (“DOJ”) held a press conference to announce a joint public inquiry aimed at revising the agencies’ merger guidelines.  The agencies’ Horizontal Merger Guidelines, previously revised in 2010, reflect the framework the agencies use to evaluate whether M&A transactions between actual and potential competitors violate the antitrust laws.  The 2020 Vertical Merger Guidelines—which the FTC previously announced it will no longer follow—address combinations of companies at different levels of a supply chain (e.g., manufacturers and their customers.

FTC Chair Lina Khan and Assistant Attorney General (“AAG”) Jonathan Kanter opened the conference with remarks about the agencies’ decision to undertake a review of the merger guidelines, along with details about the accompanying Request for Information (“RFI”).  The theme of their remarks was a shared desire to strengthen the “joint merger guidelines to meet the challenges and realities of the modern economy.”[1]

The RFI addresses fifteen topics associated with merger review,[2] but Chair Khan and AAG Kanter focused their remarks on a handful of priorities:

• Monopolies: The agencies plan to review how the merger guidelines should more specifically address transactions that might create or strengthen dominant firms, taking into account a range of “business strategies and incentives” that might drive acquisitions by such firms. For example, the agencies’ RFI asks how the guidelines should address “serial” and “rollup” acquisitions of competitors by large companies and private equity firms—and whether such transactions collectively might “tend to create a monopoly” in violation of Section 7 of the Clayton Act.
• Labor Issues: The agencies seek comment and information on whether the guidelines should specifically address the possible effects of mergers on employees and workers. In doing so, the agencies signal that they may consider factors such as the impact of a merger on wages, salaries, and other forms of compensation.  They will also seek information on whether the guidelines should treat the elimination of jobs as a cognizable efficiency of a merger.
• Evidence of Anticompetitive Effects: The agencies seek information as to whether the current guidelines and agency merger analysis are unduly limited in their focus on price effects of a merger. Specifically, the agencies will consider whether other indicia of anticompetitive effects, such as head-to-head competition between the merging parties, should be given more weight, and whether such evidence is more appropriate to analyzing mergers in certain industries.
• Accounting for “Market Realities:” The agencies seek comment as to whether, in a “dynamic and multi-dimensional economy,” defining markets is a reliable tool for assessing the potential harm of mergers. They further seek information on how to capture dynamism in the market and whether the guidelines should consider competition in terms of “stacks” or “clusters” of component products and services that drive digital and physical supply chains.
• Convergence of Horizontal and Vertical Merger Analysis: The agencies seek input as to whether the traditional separation of horizontal and vertical merger analysis accurately reflects the realities of the modern economy. They will assess, in general, whether rigid categories accurately capture complex and dynamic business relationships, particularly in technology markets.

Focus on Digital Markets

The above concerns reflect the agencies’ leadership’s view that the current merger guidelines fail to fully account for the types of competitive harms mergers present in today’s technology markets generally, and digital markets in particular.  Indeed, AAG Kanter stated that “[o]ur country depends on competition to drive progress, innovation and prosperity . . . [and for that reason] [w]e need to understand why so many industries have too few competitors, and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy.”  The RFI calls out digital markets specifically.  Agency officials explained they want to establish an analytical roadmap for assessing digital markets because such markets raise “different issues” like tipping, zero price issues, and data aggregation.

Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson

Following the announcement, FTC Commissioners Noah Joshua Phillips and Christine S. Wilson issued a joint statement endorsing the effort to seek public comment on the guidelines because “it reflects [the FTC’s] posture of continual learning.”  Their comments also highlight that the 2010 Horizontal Merger Guidelines have largely been accepted by the courts because they are based on a consensus framework developed over decades.  They noted that the 2010 Guidelines succeeded in providing transparency and predictability to the business community.  Any revisions to the guidelines must reflect the administrability, transparency, and predictability considerations that made the 2010 guidelines successful.  In order to fully account for these considerations, Commissioners Phillips and Wilson encourage the public to submit comments and concerns on both the legal and economic issues presented in the RFI, as well as the assumptions that underlie those particular questions.

Next Steps and Implications

Chair Khan remarked that “[t]his inquiry . . . is designed to ensure that [the agencies’] merger guidelines accurately reflect modern market realities and equip [the agencies] to forcefully enforce the law against unlawful deals.” [3]  As many expected, the FTC and DOJ under the Biden Administration are proceeding with revisions to the federal merger guidelines that will reflect the Administration’s goal of strengthening antitrust enforcement.  It remains to be seen whether and how the revised guidelines address this broad range of topics, and whether they will be adopted by the courts.  Commissioners Phillips and Wilson observed that the existing guidelines embraced well-established legal and economic principles and enhanced transparency for merging parties.  For new guidelines to have the same impact, they will need to reflect a similar approach.

Companies concerned about the forthcoming guidelines should begin making plans now to ensure those concerns are amply documented before the agency.  As Commissioners Wilson and Philips emphasized, substantial, evidence-based comments—whether submitted directly by a company, or by a trade association—have historically driven guidelines the reflect a consensus framework.  Businesses and the agencies alike share an interest in a merger review framework that results in necessary enforcement while avoiding over deterrence in merger and acquisition activity.

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   [1]   Statement of AAG Jonathan Kanter (Jan. 18, 2022).

   [2]   The full list of topics are as follows: Purpose, Harms, and Scope, Types and Sources of Evidence, Coordinate Effects, Unilateral Effects, Presumptions, Market Definition, Potential and Nascent Competition, Remedies, Monopsony Power and Labor Markets, Innovation and IP, Digital Markets, Special Characteristics Markets, Barriers to Firm Entry and Grown, Efficiencies, and Failing and Flailing Firms.

   [3]   Statement of Chair Lina Khan (Jan. 18, 2022).

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The following Gibson Dunn lawyers prepared this client alert: Adam Di Vincenzo, Rachel Brass, and Kareem Ramadan.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please feel free to contact the Gibson Dunn attorney with whom you usually work in the firm’s Antitrust and Competition Practice Group, the authors, or any of the following:

Rachel S. Brass – San Francisco (+1 415-393-8293, rbrass@gibsondunn.com)
Adam Di Vincenzo – Washington, D.C. (+1 202-887-3704, adivincenzo@gibsondunn.com)
Kristen C. Limarzi – Washington, D.C. (+1 202-887-3518, klimarzi@gibsondunn.com)
Joshua Lipton – Washington, D.C. (+1 202-955-8226, jlipton@gibsondunn.com)
Richard G. Parker – Washington, D.C. (+1 202-955-8503, rparker@gibsondunn.com)
Michael J. Perry – Washington, D.C. (+1 202-887-3558, mjperry@gibsondunn.com)
Stephen Weissman – Washington, D.C. (+1 202-955-8678, sweissman@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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I.  Introduction: Themes and Notable Developments

A.  A New Administration Leverages a Traditional Playbook

With the confirmation of Chair Gary Gensler in April and the appointment of Enforcement Division Director Gurbir Grewal in June, the latter half of 2021 provided greater insight into the ways in which heightened enforcement under this Administration will impact market participants and the implications for clients going forward.  In speeches in the latter half of 2021, Director Grewal and Chair Gensler outlined their enforcement priorities.  While many of their themes echo the messages of prior Democratic administrations, certain points this Commission has chosen to emphasize could have outsized impact on public companies, SEC-registered firms and their executives and outside professionals.

• Remedies – Director Grewal expressed the intention to escalate the sanctions the Commission would demand in both negotiated resolutions and litigated enforcement actions. While the remedies are not new, the focus on expanding the magnitude and frequency of sanctions reflects not just desire to increase the amount of particular sanctions, but also the breadth of parties and circumstances that would trigger a demand for certain sanctions.
  • Penalties – Picking up on a theme articulated by then-Acting Chair Caroline Crenshaw earlier this year (and discussed in our Mid-Year Alert [link: https://www.gibsondunn.com/2021-mid-year-securities-enforcement-update/]), Director Grewal warned of the likelihood of increased penalties generally, and in particular, in circumstances where, in the Commission’s view, penalties have been insufficient to deter perceived misconduct based in part on previous enforcement actions against other actors in the same industry. Director Grewal was particularly pointed on the diminished relevance of prior settlements when negotiating current settlements.  As Director Grewal bluntly stated, “You should not expect comparable cases to be the beginning and end of our analysis.”[1]
  • Bars – Director Grewal has also signaled an intention to pursue officer and director bars, including in cases in which an individual defendant was not an officer or director of a public company. As Grewal explained, in determining whether to recommend pursuing a bar, the Enforcement Division would consider whether the individual is simply “likely to have an opportunity to become an officer and director of a public company in the future.”[2] In at least one recent example, in a litigated enforcement case, the Commission is seeking officer and director bars against individuals who are, according to the complaint, not employed by public companies.[3]
  • Admissions – In Director Grewal’s words, “When it comes to accountability, few things rival the magnitude of wrongdoers admitting that they broke the law. . . . Admissions, given their attention-getting nature, also serve as a clarion call to other market participants to stamp out and self-report the misconduct to the extent it is occurring in their firm.”[4] Not long after that speech, the Commission announced a settled enforcement action that contained admissions to regulatory recordkeeping violations.[5]  Notably, violation of such regulatory provisions does not give rise to private rights of action.  It will remain to be seen to what extent the Commission seeks admissions in other circumstances.
• Recidivism – Director Grewal emphasized that “recidivism” would be a potentially significant factor in the assessment of appropriate resolutions. In Grewal’s words, “When a firm repeatedly violates our laws or rules, they should expect to be penalized more harshly than a first-time offender might be for the same conduct.”[6]  As discussed below, this position raises significant concerns about the applicability of the term “recidivist” in the context of securities enforcement.
• Gatekeepers – In separate speeches, both Chair Gensler and Director Grewal emphasized a focus on gatekeepers – lawyers, auditors, accountants, bankers and investment advisers – who play a variety of roles in the securities industry, capital markets, and public company financial reporting and disclosure. As Chair Gensler articulated his perspective in a message to such gatekeepers, “You occupy positions of trust.  Though you represent your clients, you also have an important role in upholding the law, which protects investors and our markets.  You can often be the first lines of defense.  That’s particularly true when a client is getting close to crossing the line.”[7]  Director Grewal made a similar point in separate remarks, “Encouraging your clients to play in the grey areas or walk right up to the line creates significant risk.  It’s when companies start testing those lines that problems emerge and rules are broken. . . .  That’s why gatekeepers will remain a significant focus for the Enforcement Division, as evidenced by some of our recent actions.”[8]

Our Take – It is not surprising that the Enforcement Division under this Administration would emphasize seeking greater sanctions, particularly penalties, in enforcement actions.  Perhaps notable is that this Administration has not articulated new remedies, just more of the existing ones without any guiding principles.  The lack of transparency regarding when admissions will be demanded, whether voluntary disclosure or cooperation will impact that determination, or even why admissions are needed, is notable.  An absence of guidelines may very well lead to a lack of consistency.  It remains to be seen whether the Enforcement Division is able to execute on such vision if the demand for such sanctions also results in an increase in the Commission’s litigation caseload.  While remedies such as penalties can often be negotiated to a resolution, other remedies, such as bars and admissions, can be far more consequential for individuals and entities.  As a result, an effort to flex a regulatory muscle by demanding greater remedies may ultimately run up against a resource constraint on the ability to litigate cases.

Arguably of greater potential impact is the emphasis on conceptual themes, such as recidivism and gatekeepers.  The concept of recidivism, for example, can easily be misapplied in the regulatory context.  In any large, diversified enterprise with thousands of employees engaged in a highly regulated business, it is almost inevitable that over time a number of securities law violations will occur, often comprised of unintentional mistakes.  Violations can arise for an unlimited number of different reasons, including individual misconduct, growth and diversification of the business, prevailing industry practice, emerging risks, acquisitions, and evolving regulatory interpretations and standards of enforcement.  Trying to apply a label such as “recidivist” in this context can not only be inappropriate, but also leave parties exposed to the rhetorical judgments of regulators as to what constitutes recidivism.

Similarly, defining a wide range of professionals as “gatekeepers” and then cautioning them on the risks of advising clients acting in the “grey areas” suggests a vision of advisers (lawyers, accountants, financial advisers) that is inconsistent with their roles.  Many areas of the law are grey, especially those subject to agency discretion and interpretation, and it is precisely in the grey areas that clients should be reaching out to their advisers and most need advice.  The Commission has long articulated a position of not pursuing enforcement actions against professional advisers, particularly counsel, on the basis of advice, but rather only for participation in misconduct that rises to the level of a direct or secondary violation.  One hopes that the recent rhetoric about the focus on gatekeepers does not signal a departure from decades of Commission practice in this area.

B.  A Look at – and Behind – the Numbers

The enforcement statistics for fiscal 2021 reflected a 7% year-over-year increase in standalone actions, from 405 in 2020 to 434 in 2021.  However, to put this number in perspective, 2020 saw a substantial decrease in enforcement actions due to the pandemic.  Thus, the 434 standalone enforcement actions for fiscal 2021 represented a decline of more than 17% from the 526 enforcement actions in 2019.  The distribution of actions was consistent with prior years, with the majority of cases involving broker-dealers and investment advisers, securities offerings, and public company financial reporting.  Financial remedies ordered in fiscal 2021 represented an increase in penalties (from $1.09 billion in 2020 to $1.46 billion in 2021), but a decrease in disgorgement ordered (from $3.59 billion in 2020 to $2.40 in 2021).[9]

One must always exercise caution when drawing conclusions about enforcement trends from such metrics, particularly in light of the pandemic and in a year of transition in administrations.  In particular, given the close of the fiscal year on September 30 and the extended pipeline through which enforcement actions ultimately receive formal approval, the impact of this administration on metrics such as the number of cases and size of financial remedies are more likely to be measurable in future years.  With that in mind, below are graphical representations of the metrics over recent years.

C.  SPACs

The SEC continued its focus on Special Purpose Acquisition Companies (“SPACs”) in the second half of 2021.  Multiple enforcement actions came on the heels of pronouncements by senior SEC officials earlier last year concerning the risks posed by the explosion of SPAC initial public offerings, including a potential misalignment of interests and incentives between SPAC sponsors and shareholders.  For example, in July, the SEC announced a partially settled enforcement action against a SPAC, the SPAC sponsor, and the CEO of the SPAC, as well as the proposed merger target and the former CEO of the target for misstatements in a registration statement and amendments concerning the target’s technology and business risks.[10]  Please see our prior client alert [link: https://www.gibsondunn.com/sec-fires-shot-across-the-bow-of-spacs/] on this subject for an analysis of the lessons learned from the matter.

In December, the SEC also provided an update to an action originally filed in July[11] against a publicly traded company’s founder and former CEO.[12]  The Commission’s complaint filed in July alleged that the company’s former CEO encouraged investors to follow him on social media to get “accurate information” about the company “faster than anywhere else,” but, instead, he allegedly misled investors about the company’s technological advancements, products, in-house production capabilities, and commercial achievements.  In its December update, the SEC announced that the company agreed to settle the action.  Without admitting or denying the SEC’s findings, the company agreed to cease and desist from future violations, to certain voluntary undertakings, to pay $125 million in penalties, and to continue cooperating with the SEC’s ongoing litigation and investigation.

D.  Commissioner and Senior Staffing Update

In the waning days of 2021, one of the two Republican-appointed members of the Commission, Commissioner Elad Roisman, announced that he would leave the SEC by the end of January 2022.[13]  The departure will reduce the normally five-member Commission to four members until a replacement is appointed, and will leave Commissioner Hester Peirce as the lone Republican-appointed Commissioner for the time being.  Commissioners Roisman and Peirce have been reliable dissenting voices at the Commission in the last year, and we would expect to see continued dissent from Commissioner Peirce notwithstanding the loss of her fellow-Republican Commissioner ally.

In the second half of 2021, Chair Gensler and Enforcement Director Grewal continued building out the senior staff of the Commission.  Notable appointments included:

• In July, Daniel Kahl was appointed Acting Director of the Division of Examinations, succeeding Peter Driscoll.[14] Kahl joined the SEC in 2001 as a staff attorney, and most recently served as Deputy Director for Division of Examinations.  He also served as an attorney for FINRA, the Investment Adviser Association, and the North American Securities Administrators Association.
• In August, Sanjay Wadhwa was named Deputy Director of the Division of Enforcement.[15] Wadhwa has worked for the SEC for 18 years, most recently as the Senior Associate Director of Enforcement for the New York Regional Office.
• In September, Dan Berkovitz was appointed SEC General Counsel, succeeding John Coates.[16] Berkovitz was previously a Commissioner of the Commodity Futures Trading Commission (CFTC).  Mr. Berkovitz has previous experience in private practice and an extensive public service career, including as General Counsel for the CFTC, a senior staff attorney for the U.S. Senate Permanent Subcommittee on Investigations, and Deputy Assistant Secretary in the Department of Energy’s Office of Environmental Management.
• In early November, Nicole Creola Kelly was named Chief of the SEC Office of the Whistleblower.[17] Kelly is a 20-year veteran of the SEC, most recently serving as Senior Special Counsel in the Office of General Counsel.  She was also previously Counsel to SEC Chair Mary Jo White and former SEC Commissioner Kara M. Stein.
• In November, Daniel Gregus was appointed Director of the Chicago Regional Office.[18] He had previously served as acting co-director of the Chicago office.  Gregus has spent 28 years with the SEC in varying roles, including as Associate Director of the National Clearance and Settlement Examination Program and Associate Regional Director for the Broker-Dealer and Exchange Examination Program in the Chicago office.  Prior to joining the SEC, Mr. Gregus was in private practice.
• Also in November, the SEC announced the appointment of Haoxiang Zhu as Director of Division of Trading and Markets.[19] Zhu joins the SEC from academia, most recently holding the post of Professor at the MIT Sloan School of Management.  He also previously served as an academic expert for the CFTC and Bank for International Settlements.  Mr. Zhu is a member of the Federal Reserve Bank of Chicago’s Working Group on financial markets.
• In December, Judge James Grimes was named the SEC’s Chief Administrative Law Judge, succeeding Brenda Murray.[20] Judge Grimes previously spent 13 years at the Department of Justice, serving as a trial attorney and senior litigation counsel in the Civil Division.  He previously served with the Navy Judge Advocate General (JAG) Corps, representing service members in courts-martial and representing the government before military appellate courts.
• Also in December, William Birdthistle was appointed Director of Division of Investment Management.[21] Before joining the SEC, Mr. Birdthistle was a Professor of Law at Chicago-Kent College of Law, where his research focused on investment funds, securities regulation, and corporate governance.  He also previously worked in private practice as a corporate associate for five years.

E.  Whistleblower Awards

The SEC’s whistleblower program remains a significant source of incoming information for the SEC and, as has been true for many years, the significant recovery associated with whistleblower awards continues to grow.  As of year-end 2021, the SEC has awarded approximately $1.2 billion to 236 individuals since issuing its first award in 2012.

In August, Chair Gensler responded to criticism regarding amendments to the whistleblower rules that were previously adopted in September 2020 and acknowledged that there were concerns regarding whether the amendments would have the effect of chilling whistleblowers from coming forward.[22]  In response, Chair Gensler directed his staff to prepare potential revisions to the rules to address those concerns.  Interim rules were instituted in order to ensure that whistleblowers “with claims pending” while the amended rules are being considered “are not disadvantaged.”[23]  In response, Commissioners Peirce and Roisman issued a strongly worded statement disagreeing with the Commission’s action to “substantively ignore [Commission rules] while proposed amendments are formulated and considered,” calling the course of action “unwise and . . . a troubling and counterproductive precedent.”[24]  As of the end of 2021, the interim rules remain in place and the Commission is moving forward with proposed revisions to the whistleblower rules.

Also in the second half of the year, the Commission announced that not all tips are good tips.  In September, the SEC barred two individuals from the whistleblower award program, each of whom had filed hundreds of award applications that the SEC described as “frivolous” and did not contribute to any successful enforcement action.[25]  The bars were issued pursuant to the 2020 amendments to the Whistleblower Program Rules, which were designed to allow the whistleblower program to operate more effectively and efficiently and to focus on good faith whistleblower submissions.

Significant whistleblower awards granted during the second half of this year included:

• Two awards in July, including a payment of more than $1 million to a whistleblower who provided “valuable” information and ongoing assistance, which led to an SEC enforcement action;[26] and an award of nearly $3 million to a whistleblower who alerted the SEC to previously unknown conduct and then provided “substantial” additional assistance, which led to a successful enforcement action.[27]
• Four awards in August, including awards totaling more than $4 million to four whistleblowers in two separate enforcement proceedings, each of whom were described as providing “high-quality information that made an important contribution” to the success of the underlying enforcement action;[28] awards totaling more than $3.5 million to three individuals in two separate enforcement proceedings, one of whom was awarded approximately $2 million for alerting SEC staff to an ongoing fraud, prompting the opening of an investigation;[29] awards of nearly $6 million to two whistleblowers in separate enforcement proceedings, one of whom was awarded more than $3.5 million for reporting new information that caused the SEC to expand an existing investigation into a new geographic area, while the other whistleblower was awarded more than $2.4 million for alerting the SEC to previously unknown conduct, prompting the opening of the investigation;[30] and awards totaling approximately $2.6 million to five whistleblowers in three separate enforcement proceedings who provided information, developed either from the whistleblower’s independent knowledge or the whistleblower’s independent analysis, which “substantially” contributed to a successful enforcement action.[31]
• Three awards in September—including a notable award of approximately $110 million, consisting of an approximately $40 million award in connection with an SEC case and an approximately $70 million award arising out of related actions by another agency—for providing “significant” independent analysis that “substantially advanced” the investigations.[32] This award stands as the second-highest award in the program’s history, following the over $114 million whistleblower award the SEC issued in October 2020.  Additional awards in September included payments totaling approximately $11.5 million to two whistleblowers, one of whom was awarded nearly $7 million in recognition of the fact that the whistleblower was the initial source that caused the staff to open the investigation into hard-to-detect violations and thereafter provided substantial assistance, while the second whistleblower, by comparison, submitted information after the investigation was already underway and had delayed reporting for several years after becoming aware of the wrongdoing;[33] and an award of approximately $36 million to a whistleblower who provided what the SEC described as “crucial information” on an illegal scheme, which “significantly” contributed to the success of an SEC enforcement action, as well as actions by another federal agency.[34]
• Two awards in October, including awards totaling approximately $40 million to two whistleblowers, one of whom received approximately $32 million for providing information that caused the opening of the investigation and exposed difficult-to-detect violations, as well as ongoing assistance, while the other whistleblower received approximately $8 million for providing new information during the course of the investigation, but waited several years to report to the Commission;[35] and a payment of more than $2 million to a whistleblower who provided information that led to a successful related action by the U.S. Department of Justice.[36]
• Two awards in November, including awards totaling more than $15 million to two whistleblowers, one of whom received more than $12.5 million for alerting Commission staff to a fraudulent scheme and prompted the opening of an investigation;[37] and awards totaling approximately $10.4 million to seven whistleblowers who provided information and assistance in three separate covered actions.[38]
• An award in December of nearly $5 million to a whistleblower who provided information and assistance that led to the success of a covered action, resulting in the return of millions of dollars to investors.[39]

II.  Public Company Accounting, Financial Reporting, and Disclosure Cases

Public company accounting and disclosure cases continued to comprise a significant portion of the SEC’s cases in the latter half of 2021, and included a range of actions concerning earnings management, revenue recognition, impairments, internal controls, and disclosures concerning financial performance.

A.  Financial Reporting Cases

In July, the SEC announced a complaint against the former CEO and CFO of a network infrastructure company for alleged accounting fraud.[40]  From January 2017 to January 2019, the SEC alleged that the executives secretly caused the company to issue nearly $23 million in convertible notes, each of which required complex analyses under GAAP, but instead masked the convertible notes as conventional promissory notes by creating fake copies and forging board signatures to mislead internal and external auditors.  Additionally, from early 2016 to November 2018, the executives allegedly inflated company revenues more than 100% by recording revenues from purportedly completed construction projects for which the infrastructure company had yet to complete the work.  The SEC also alleged that the executives misappropriated $5.4 million from the company for personal use, including salary increases, luxury cars, private jet services, and unauthorized cash payments.  The litigation is ongoing, and the SEC is seeking permanent injunctions, penalties, and officer and director bars against the executives.  The U.S. Attorney’s Office for the Southern District of New York also brought criminal charges against the two executives.

Also in July, the SEC announced a settled action against a specialty leather retailer and its former CEO for accounting, reporting, and control failures related to the retailer’s inventory tracking system which could not accurately support the retailer’s inventory accounting methodology.[41]  The SEC alleged that the inventory tracking system resulted in misleading financial statements which, for years, impacted the company’s calculations for income, profits, and inventory.  According to the SEC, the CEO was aware of the inventory tracking system’s shortcomings and did not adequately remedy them, nor institute additional proper accounting controls to ensure that inventory was recorded in accordance with GAAP.  Without admitting or denying the allegations, the retailer and the CEO agreed to cease and desist from future violations and pay a combined penalty of $225,000.

In September, the SEC instituted a settled action against a multinational food company and two former employees for negligently misreporting the company’s financial results.[42]  The SEC alleged that, for multiple years, the food company’s procurement division caused the company to prematurely recognize discounts from suppliers, which reduced the company’s reported cost of goods sold.  The SEC further alleged that the food company’s internal controls relating to accounting for supplier contracts were ineffective, and it alleged that the individual respondents, who had overseen the procurement division, should have known about the accounting misstatements.  Without admitting or denying the allegations, the food company agreed to pay a $62 million civil penalty, which recognized the company’s cooperation and remedial control improvements; one employee consented to a cease-and-desist order and paid disgorgement and a $300,000 civil penalty; and the other employee consented to a permanent injunction, a $100,000 civil penalty, and a five-year ban from serving as an officer or director of a public company.

In December, the SEC instituted a settled action against a dialysis provider and three former executives for improperly calculating and reporting revenue adjustments related to actual and expected payments from patients’ health insurance providers.[43]  The SEC alleged that, from 2017 to 2018, the company manipulated its revenues through accounting adjustments of the difference between what the company anticipated a patient’s insurance might pay for medical treatment and the actual payment received.  The three executives were alleged to have orchestrated a scheme to determine these adjustments not based on the actual difference between expected and received payment for each patient, but rather, based on mathematical calculations to achieve pre-determined revenue figures in any given period.  Furthermore, the adjustments were not reported until they were needed to meet financial targets.  The executives were also alleged to have misled the company’s outside auditor in order to conceal this accounting practice.  Without admitting or denying wrongdoing, the company agreed to resolve the action in a judgment with a permanent injunction and a $2 million fine.  Litigation against the executives remains ongoing, and also includes an allegation of making false statements to the company’s auditors.

B.  Disclosure Cases

In June, the SEC instituted a settled action against a publicly traded provider of title and escrow services, alleging disclosure controls violations related to a cybersecurity vulnerability that exposed sensitive customer information.[44]  The SEC alleged that the issuer’s information security personnel discovered a vulnerability that exposed a large number of customers’ personally identifiable information, but waited several months to escalate and remediate it.  Because information about the incident had not been escalated to senior management, the issuer filed an inaccurate Form 8-K about the incident.  According to the SEC, the issuer failed to maintain adequate disclosure controls designed to ensure that all available, relevant information concerning the vulnerability was analyzed for disclosure.  Without admitting or denying the findings, the issuer agreed to a cease-and-desist order and to pay approximately $490,000 in civil penalties.

In July, the SEC announced settled actions against a medical diagnostics company and two executives related to allegedly misleading statements regarding the company’s ability to produce COVID-19 tests and personal protective equipment (“PPE”) in order to boost its declining stock price.[45]  The SEC alleged that the company issued a series of press releases touting the immediate availability of PPE for sale, and that it would be developing a COVID-19 test which would be “available soon.”  The SEC alleged that, in fact, the company was insolvent, and this prevented it both from developing the COVID-19 test and purchasing or importing PPE for retail sale.  Without admitting or denying the findings, the company and executives consented to a permanent injunction from future violations and combined penalties of $185,000.  The two executives also consented to officer and director bars for three and five years each.

In August, the SEC announced a complaint against the former CEO of a private technology company, alleging that the CEO inaccurately claimed that the company had achieved strong and consistent revenue and customer growth in order to push it to a “unicorn” valuation of over $1 billion.[46]  According to the SEC, the CEO misrepresented the value of numerous customer deals to investors and altered or created invoices to make it appear that customers had been billed at higher amounts than they actually had.  The SEC’s litigation against the former CEO remains ongoing, and the U.S. Attorney’s Office for the Northern District of California announced criminal charges against the CEO stemming from the same conduct.

Also in August, the SEC instituted a settled action against a U.K.-based company that provides publishing and other services to schools and universities, alleging that the company made misleading statements and omissions to investors about a cyber breach.[47]  The order alleged that, in 2018, the company experienced a breach that resulted in the theft of millions of student records, including email addresses and dates of birth.  According to the Commission, the company’s disclosures referred to a data privacy incident as a mere hypothetical risk, when, in fact, the breach had already occurred.  Moreover, the company issued a media statement that misstated or omitted certain details about the breach.  The SEC alleged that the company failed to maintain disclosure controls and procedures designed to ensure that those responsible for making disclosure determinations were adequately informed about the breach.  Without admitting or denying the SEC’s findings, the publisher agreed to cease and desist from future violations and to pay a $1 million civil penalty.

In September, the SEC filed a complaint against the principals of a subprime automobile finance company for allegedly misleading investors about the loans which backed its $100 million offering.[48]  The SEC alleged that the principals inflated the value of these asset-backed securities by including loans that were not eligible in the securitization vehicle, extending loan repayment dates without borrower knowledge to adjust the performance of the securitization vehicle, and forgiving payments from delinquent borrowers without disclosing this fact to investors.  The SEC is seeking permanent injunctions, officer and director bars, disgorgement, and civil penalties, and the litigation against the principals remains ongoing.

In November, the SEC announced a settled action against an oilfield services company and its former CEO for allegedly failing to properly disclose the CEO’s executive perks and stock pledges.[49]  The SEC alleged that the CEO caused the company to incur over $380,000 worth of personal and travel expenses and failed to disclose to company personnel that he had pledged all his company stock in private real estate transactions.  The company also failed to properly disclose over $47,000 in unpaid perks to the CEO.  The CEO agreed to pay over $195,000 in civil fines, and both the CEO and the company agreed to cease and desist from further violations, without admitting or denying any wrongdoing.

Also in November, the SEC instituted a settled action against an exchange-traded product (“ETP”), which seeks to track the changes in the spot price of crude oil, and its general partner, a commodity pool operator, alleging that they misled investors about limitations imposed by the ETP’s sole futures commission merchant and broker.[50]  In the wake of the April 2020 shake-up of the oil market brought on by pandemic-related lockdowns, the ETP received record investor inflows while the ETP’s sole futures broker informed the ETP that it would not execute any new oil futures positions.  The SEC alleged that the ETP and its general partner did not fully disclose the character and nature of this limitation to investors until one month after it was first imposed.  Without admitting or denying the SEC’s findings, the ETP and its general partner agreed to pay a $2.5 million fine to settle the SEC action and a parallel action brought by the CFTC.

C.  Auditor Independence

In August, the SEC instituted a settled action against a Big Four accounting firm and three of its current or former audit partners for conduct which allegedly violated auditor independence rules in connection with the accounting firm’s pursuit to serve as the independent auditor for a public company.[51]  The SEC also instituted a settled action against the public company’s then-Chief Accounting Officer for his role in the alleged misconduct.  The SEC alleged that the accounting firm partners solicited and received confidential competitive intelligence regarding the public company’s audit committee and independent auditor selection process from the public company’s then-Chief Accounting Officer.  This information allegedly caused both the public company and the accounting firm to commit reporting violations because the accounting firm would no longer be able to exercise objective and impartial judgment after the audit engagement began.  Without admitting or denying the findings, the accounting firm and its current and former partners agreed to cease and desist from future violations.  Additionally, the accounting firm agreed to pay a $10 million civil fine and institute controls to prevent future violations, including regular reporting to the SEC.  The individual partners agreed to monetary penalties between $15,000 and $50,000, and agreed to a suspension from appearing or practicing before the SEC for periods of one to three years.  The Chief Accounting Officer, without admitting or denying the allegations, agreed to a civil fine of $51,000 and a two-year suspension from appearing or practicing before the SEC.

III.  Investment Advisers

In the second half of 2020, the SEC instituted a number of actions against investment advisers.  We discuss notable cases below.

A.  Complex Products

The SEC, in connection with the SEC’s Exchange Traded Product (“ETP”) initiative, filed a settled action in July against a dual-registered broker-dealer and investment adviser,, alleging historic compliance failures related to the sale of a volatility-linked ETP.[52]  According to the SEC, the ETP was designed to track short-term volatility expectations in the market, and the product’s issuer told the company that it was not appropriate to hold the product for an extended period.  The SEC alleged that while the company prohibited the solicitation of the product entirely for brokerage accounts, it allowed more experienced financial advisors who managed client portfolios on a discretionary basis to buy the ETP after mandatory training.  Further, the SEC alleged that although the registrant had adopted a concentration limit on volatility-linked ETPs, it did not implement a system to monitor or enforce that limit.  Finally, the SEC alleged that certain financial advisers misunderstood the appropriate use of the ETP, failed to take sufficient steps to understand the risks of holding onto the ETP for an extended period, and ended up holding the product too long.  Without admitting or denying the SEC’s findings, the company agreed to a cease-and-desist order, censure, disgorgement of $112,000, and a civil penalty of $8 million.

B.  Material Misrepresentations

In July, the SEC announced a settled action against the subsidiary of an association which keeps records for employer-sponsored retirement plans (“ESPs”) and advises clients on whether to roll over their ESPs into individually managed accounts.[53]  The SEC and the New York Attorney General’s Office brought parallel actions that were simultaneously settled in July.  According to the SEC, the subsidiary made inaccurate and misleading statements to its clients by representing that its advisers acted in the client’s best interest and as fiduciaries.  Further, the SEC alleged that the subsidiary and its employees failed to adequately disclose their conflicts of interest when they made certain recommendations to the clients.  Without admitting or denying the SEC’s findings, the subsidiary agreed to a cease-and-desist order, to be censured, disgorgement, and a civil penalty totaling $97 million.

In September, the SEC announced a settled action against the CEO and chief portfolio manager of an advisory firm based on allegations of misrepresentations of the performance of funds managed by the firm.[54]  According to the SEC, the executives inflated net asset values and the performance of funds by recording non-binding transactions and fraudulent fees in books and records.  The SEC further alleged that the CEO waived monthly management fees owed to the firm to make it seem as if the funds were achieving better results.  These allegedly inflated results were then used in promotional materials sent to investors.  Without admitting or denying the SEC’s allegations, the CEO agreed to be barred from the securities industry and to pay over $5 million in disgorgement, and a penalty of almost $300,000.  The chief portfolio manager, also without admitting or denying the allegations, agreed to a limitation on activities in the securities industry for at least three years, and to pay a penalty of $50,000.

In November, the SEC announced that it prevailed in a jury trial against a hedge fund adviser and his investment firm for allegedly reaping profits from making false statements to drive down the price of a pharmaceutical company.[55]  The SEC alleged that the hedge fund had established a short position in the pharmaceutical company, and then made a series of false statements to shake investor confidence in the company and lower its stock price.  These statements included that the pharmaceutical company’s investor relations firm had told the hedge fund adviser that the company’s most profitable drug was nearly obsolete and that the pharmaceutical company had engaged in a risky transaction with an unaudited shell company in an effort to reduce the size of its balance sheet.  These statements and the ultimate decline in stock price allegedly resulted in more than $1.3 million in profits from the short position.  The jury found the hedge fund and its adviser guilty of fraudulent misrepresentations; remedies will be determined at a later date.

In December, the SEC announced a settled action against an investment adviser regarding improper calculation of management fees, which is an area the SEC continues to be focused on, and appears to be expanding into the private fund adviser space.[56]  According to the SEC, the investment adviser failed to adequately offset portfolio company fees against management fees paid to the company, despite promising clients it would do so in the relevant governing documents.  This allegedly led to clients overpaying millions in additional management fees.  The SEC also claimed the adviser made inconsistent statements to clients about how management fees would be calculated.  Without admitting or denying the SEC’s allegations, the investment adviser agreed to pay a $4.5 million penalty to settle the action.

C.  Misuse of Client Funds

In July, the SEC filed an action against an individual trader at an asset management firm.  According to the SEC, from January 2015 through April 2021, the individual traded stock in his family members’ accounts before or during the time periods when his employer’s advisory clients were executing large orders for the same stock.[57]  The SEC alleges that the trader would then close out the just-established positions in his relatives’ accounts before the client accounts completed their executions.  The SEC alleged the individual conducted a front-running scheme that violated the antifraud provisions of the federal securities laws and is seeking disgorgement, penalties, and injunctive relief.  The U.S. Attorney’s Office for the Southern District of New York also brought criminal charges against the trader.  Litigation remains ongoing.

The SEC also filed an action in July against the CEO of several real estate investment trusts (“REITs”) and his wholly-owned investment advisory firm.[58]  The SEC alleged that the CEO took money from two REITs he founded, put it into a third REIT he had founded, and later caused the same two REITs to enter into money-losing transactions with the third REIT to benefit himself and the third REIT.  According to the SEC, the CEO also made misrepresentations to the boards of the two REITs that resulted in a payment to him, and he also misled investors by causing those REITs to make false and misleading statements in their public filings.  The SEC alleged violations by the CEO of various federal antifraud provisions and is seeking disgorgement, penalties, permanent injunctions, and industry, penny stock, and officer and director bars against the CEO.

In October, the SEC filed am action against a former New Jersey-based financial adviser, alleging that he misappropriated several million dollars from client accounts.[59]  According to the SEC, the adviser used those funds to pay off balances in credit card accounts held by his wife and parents, caused checks to be drawn on his clients’ and customers’ accounts, and used client funds to purchase gold coins and other precious metals, buy luxury goods, and make electronic fund transfers to himself.  The SEC’s complaint alleged violations of the antifraud provisions of the federal securities laws and is seeking injunctive relief, disgorgement, and civil penalties.  The U.S. Attorney’s Office for the District of New Jersey has also filed criminal charges against him.

D.  Implementation of Form CRS

In July, the SEC announced settled actions against 21 investment adviser firms and 6 broker-dealer firms based on allegations that the firms failed to timely file and deliver their client or customer relationship summaries (Form CRS) to their retail investors.[60]  In June 2019, the SEC adopted Form CRS and required SEC-registered investment adviser and broker-dealer firms to take the following actions:  file these forms with the SEC, begin delivering them to prospective and new retail investors by June 2020, deliver them to existing retail investor clients or customers by July 2020, and prominently post the form on their websites.  The SEC alleged that these 27 firms missed the regulatory deadlines and did not comply until they were reminded at least twice over the course of several months by the appropriate regulatory authority.  Without admitting or denying the SEC’s findings, the firms all agreed to be censured, to a cease-and-desist order, and to pay civil penalties varying from $10,000 to $97,523.

E.  Ineffective Information Barriers

In November, the SEC announced a settled action against a management consulting firm’s wholly-owned registered investment adviser.[61]  The adviser’s advisory clients were limited to current and former employees of the consulting firm.  According to the SEC, the adviser directed the purchase and sale of securities in companies that the consulting firm previously had advised, or currently was advising.  The SEC alleged that the adviser did not maintain adequate policies and procedures to prevent investment decisions from utilizing material nonpublic information obtained through the firm’s consulting work.  Without admitting or denying the SEC’s findings, the affiliate agreed to a cease-and-desist order and to pay $18 million to settle the action.

IV.  Broker-Dealers

Although not as numerous as prior years, there were nevertheless notable cases involving the conduct of broker-dealers in the latter half of 2021.

A.  Financial Reporting and Recordkeeping

In August, the SEC announced a settled action against an investment firm, its principal, and its trader for allegedly providing erroneous order-marking information on sale orders, causing the fund’s brokers to mismark the sales as “long,” and failing to borrow or locate shares prior to executing the sales.[62]  The firm and its personnel also allegedly engaged in dealer activity without registering with the SEC.  Without admitting or denying the findings, the parties each agreed to cease-and-desist orders, disgorgement fees, and penalties totaling $7.9 million.

In September, the SEC instituted an action against a school district and its former Chief Financial Officer, alleging that they misled investors who purchased $28 million in municipal bonds.[63]  According to the SEC’s complaint and order, the district and CFO provided investors with misleading budget projections indicating the district could cover its costs and would end the fiscal year with a general fund balance of approximately $19.5 million, when in fact the district ended the year with a negative balance of several million dollars.  The CFO agreed to pay a $28,000 penalty.  The district also agreed to settle with the SEC and consented, without admitting or denying any findings, to engage an independent consultant to evaluate its policies and procedures related to its municipal securities disclosures.

B.  Unfair Dealings

In August, the SEC instituted a settled action against a broker-dealer and its former CEO for allegedly engaging in unfair dealing in connection with a municipal bond tender offer.[64]  The SEC’s orders alleged that the broker-dealer recommended to a county that it attempt to reduce the amount of its outstanding debt service expense through a tender offer for bonds it had issued years earlier.  According to the orders, the broker-dealer allegedly purchased millions of dollars of the county’s outstanding bonds, sold them to an affiliated entity, and tendered the bonds back to the county at a price that the broker-dealer recommended without disclosing to the county that the affiliate had acquired bonds to be tendered, or the resulting conflict of interest.  Without admitting or denying the SEC’s findings, the broker-dealer and CEO agreed to pay nearly $400,000 in disgorgement and civil penalties.

In September, and as a continuing part of an industry-wide series of investigations originating nearly five years ago, the SEC announced that a broker-dealer agreed to resolve allegations that it engaged in unfair dealing in municipal bond offerings.[65]  According to the SEC’s order, the broker-dealer allegedly allocated bonds intended for institutional customers and dealers to parties known in the industry as “flippers,” who then resold the bonds to other broker-dealers at a profit.  In addition, the SEC alleged that where an issuer had instructed the broker-dealer to place retail customer orders first, it violated those instructions by allocating bonds to flippers ahead of orders for retail customers, and improperly obtained bonds for its own inventory.  Without admitting or denying the findings, the broker-dealer consented to pay more than $800,000 in penalties and disgorgement.  Among multiple agreements, two employees consented to pay civil penalties of $25,000 and $30,000.

In September, the SEC brought an action against a municipal adviser and its two principals, alleging that they violated their duties by engaging in unregistered municipal advisory activities.[66]  According to the SEC, these actions are the first-ever SEC cases enforcing Municipal Securities Rulemaking Board (“MSRB”) Rule G-42 on the duties of non-solicitor municipal advisers.  The SEC’s complaint specifically alleged that the principals entered into an impermissible fee-splitting arrangement with their former employer and did not adequately disclose to their clients the conflicts of interest associated with the illicit arrangement or their relationship with the underwriting firm.  The SEC also alleged that all three parties engaged in municipal advisory activities when they were not registered with the SEC or MSRB.  One principal consented, without admitting or denying any findings, to pay a $26,000 penalty.  The SEC has not announced a settlement with respect to the other two principals.

Also in September, the SEC brought an action against a former managing director and head of fixed income trading at a broker-dealer, alleging that the individual engaged in unauthorized trading in fixed income securities and illegally obtained fictitious commission income.[67]  The conduct came to light after the allegedly illegal trading resulted in the broker-dealer’s bankruptcy in 2019.  The SEC’s complaint alleged that the individual engaged in unauthorized speculative trading in U.S. Treasury securities; incurred millions of dollars in losses for the firm; and obtained commission income based on fictitious commission payments from fabricated customers.  The individual agreed to settle the SEC’s action by consenting to a permanent injunction and to pay disgorgement and a civil penalty in amounts to be determined at a later date.  In a parallel action, the U.S. Attorney’s Office announced criminal charges for related misconduct.

In October, the SEC announced an order alleging that a financial services group raised funds on behalf of state-owned entities in Mozambique through two bond offerings and a syndicated loan, and that these proceeds were used to fund a hidden debt scheme, pay kickbacks to investment bankers along with their intermediaries, and bribe foreign government officials.[68]  The SEC’s order also alleged that the company failed to properly address significant and known risks concerning bribery.  The SEC announced that the financial services group agreed to pay $475 million in disgorgement and penalties.

Relatedly, a London-based subsidiary of a Russian bank also agreed to settle SEC allegations in October related to its alleged role in misleading investors in the second bond offering.[69]  According to the SEC’s order, the Russian bank and financial services group’s offering materials failed to disclose Mozambique’s debt and the risk of default on bonds.  The financial services group agreed to pay nearly $100 million in disgorgement and penalties, and the U.S. Department of Justice imposed a $247 million criminal fine.  Without admitting or denying the findings, the Russian bank agreed to pay $6.4 million in disgorgement and penalties.

C.  Internal Policies and Procedures

In August, the SEC instituted three settled actions against eight investment advisers and broker-dealers, alleging that the firms failed to create and maintain adequate cybersecurity policies and procedures in violation of the Safeguards Rule of Regulation S-P.[70]  In all three cases, unauthorized third parties gained access to email accounts, resulting in the exposure of customer data for periods of more than one year.  The Commission alleged that, in two of the cases, the firms violated the Safeguards Rule by failing to adopt and implement enhanced data security measures in a timely manner after discovering the account-takeovers.  In the press release announcing the actions, the SEC stressed that “[i]t is not enough to write a policy requiring enhanced security measures if those requirements are not implemented or are only partially implemented, especially in the face of known attacks.”  Without admitting or denying the SEC’s allegations, each firm agreed to cease and desist from future violations, to be censured, and to pay financial penalties totaling $750,000 (across all firms).

In October, the SEC announced a conclusion to its allegations that a clearing agency did not have adequate risk management policies within its Government Securities Division.[71]  In an order, the SEC alleged that the agency failed to comply with rules requiring it to have reasonably designed policies and procedures for holding sufficient qualifying liquid resources to meet the financial obligations created by the potential failure of a large participant.  According to the order, the agency did not conduct a required analysis of the reliability of its liquidity arrangements, failed to conduct required due diligence of its liquidity providers, and failed to adhere to rules requiring it to have reasonably designed policies and procedures for maintaining and periodically reviewing its margin coverage.  The clearing agency agreed to pay an $8 million penalty to settle the SEC’s allegations.

In December, the SEC announced a settled action against a broker-dealer subsidiary of a financial services company, alleging failures by the broker-dealer and its employees to maintain and preserve written communications.[72]  The company admitted that its employees, managing directors and other senior supervisors had communicated about securities business matters on their personal devices, using text messages, WhatsApp, and personal email accounts, and that the majority of these records were not surveilled nor preserved by the firm as required by the federal securities laws.  The company also acknowledged that its failure to capture and retain these records deprived the SEC staff of timely access to evidence and potential sources of information in other investigations.  The company admitted certain facts set forth in the SEC’s order and agreed to pay a $125 million penalty and implement improvements to its compliance policies and procedures.  The CFTC brought a parallel proceeding against the firm and related entities, similarly alleging that the firms’ recordkeeping violated CFTC requirements.[73]  The firm agreed to pay a $75 million penalty and implement remedial measures.

V.  Cryptocurrency and Other Digital Assets

The Commission continued to bring enforcement actions in the area of digital assets throughout 2021.  As in 2020, these actions were based primarily on alleged failures to comply with the requirement to register an offering of assets deemed to be securities or allegations of fraud in the offer and sale of digital assets.  Significant uncertainty remains around exactly how the Commission will approach the regulation of crypto assets going forward.

A.  Significant Developments

As has been true for several years, the Commission has continued to struggle with how to define the ever-expanding collection of products in the digital asset space.  Emblematic of that question is an enforcement action from this summer, along with a follow-on statement from two Commissioners.

In July, the SEC instituted a settled action against the U.K.-based operator of a website for failing to disclose compensation it received from issuers of the digital assets it profiled.[74]  Each profile included links to the token issuer’s websites and a “trust score” that the website stated reflected its evaluation of the “credibility” and “operational risk” for each digital token offering.  In the press release announcing the action, the SEC noted that many of the profiles were published after the Commission issued a 2017 advisory warning that promoters of virtual tokens classified as securities must disclose any compensation received in exchange for the promotion.[75]  Without admitting or denying the SEC’s findings, the operator of the website agreed to pay $43,000 in disgorgement and a penalty of approximately $155,000.

Interestingly, Commissioners Peirce and Roisman took the unusual step of issuing a public statement after the above-described action, concurring in the result, but expressing their continued disappointment that the settlement with the operator “did not explain which digital assets touted by [the operator] were securities, an omission which is symptomatic of our reluctance to provide additional guidance about how to determine whether a token is being sold as part of a securities offering or which tokens are securities.”[76]  They continued that “[t]here is a decided lack of clarity for market participants around the application of securities laws to digital assets and their trading . . . [and that despite some guidance m]arket participants have difficulty getting a lawyer to sign off that something is not a securities offering or does not implicate the securities laws; they also cannot get a clear answer, backed by a clear Commission-level statement, that something is a securities offering.”[77]  One proposal put forth by the two Commissioners, which was previously proposed by Commissioner Peirce,[78] is to offer a safe harbor of sorts, which would allow for token offerings to occur subject to a set of tailored protections for token purchasers.

While clarity on this issue is still forthcoming, there remains a groundswell of support from the digital asset community for further clarification on digital asset topics outside anecdotal and incremental progress toward regulatory standards posed by each new enforcement matter.

B.  Registration Cases

In August, the SEC instituted a settled action against a company for operating a web-based trading platform that facilitated the buying and selling of digital assets without registering as a national securities exchange.[79]  The order alleged that the company’s internal communications expressed a desire to be “aggressive” in making new digital assets available for trade, including assets that might be considered securities under the Howey test.  The SEC determined that some of these digital assets were investment contracts, thereby constituting securities.  Without admitting or denying the SEC’s findings, the company agreed to the entry of a cease-and-desist order and agreed to pay disgorgement of approximately $8.5 million and a civil penalty of $1.5 million.

In September, the Commission instituted a settled action against two U.S. media companies that conducted both an unregistered offering of common stock and an unregistered offering of digital coins, as well as a third company that participated only in the stock offering.[80]  The SEC alleged that the two companies involved in the coin offering promoted the coins to the general public through their websites and social media platforms.  Because the coins were allegedly marketed as an investment opportunity with a likelihood of significant returns, the Commission alleged that they constituted securities.  Without admitting or denying the findings, these two companies agreed to a cease-and-desist order, to pay disgorgement of over $434 million on a joint and several basis, and to each pay a civil penalty of $15 million.  The third company agreed to a cease-and-desist order, to pay disgorgement of more than $52 million, and to pay a civil penalty of $5 million.  The companies also agreed not to participate in any offering of a digital asset security, to assist SEC staff in the administration of a distribution plan, and to publish notice of the SEC’s order on their public websites and social media channels.

The SEC’s enforcement activities extended beyond unregistered offerings to consider the substance of attempted registrations of digital assets deemed securities.  In November, the Commission instituted proceedings against a Wyoming-based company in connection with allegedly incomplete and misleading registration forms.[81]  The effectiveness of the company’s registration of two digital tokens as securities remains stayed pending the completion of the proceedings.  The order alleged that the “Form 10” registration forms submitted by the company lacked material information about the tokens and about the company’s business practices, including audited financial statements.  The SEC further alleged that certain inconsistent statements rendered the Form 10 misleading.  In the press release announcing the action, the SEC stressed that all issuers of securities “must provide the information necessary for investors to make informed decisions.”

C.  Fraud Cases

In August, the SEC instituted a settled action against two Florida men and their Cayman Islands decentralized finance (“DeFi”) company in connection with their unregistered sales of two types of digital tokens.[82]  In offering and selling the tokens, the company stated that it would use investor assets to purchase income-generating “real world” assets, such as car loans.  The order alleged that the company misrepresented its business practices by claiming to have purchased these loans.  The SEC alleged that, although the men controlled another company that owned car loans, the DeFi company never acquired any ownership interest in those loans.  Instead, the Commission alleged that the men used personal funds and funds from the other company they controlled to make principal and interest payments for the DeFi company.  The respondents, without admitting or denying the findings, consented to a cease-and-desist order that included over $12 million in disgorgement and $125,000 penalties for each of the men.  Additionally, prior to the order, the respondents funded contracts that allowed those who held tokens to redeem their tokens and receive all principal and interest owed.

In September, the SEC filed an action against an online cryptocurrency lending platform, its founder, its top U.S. promoter, and the promoter’s affiliated company in connection with approximately $2 billion of unregistered sales of investments in their “Lending Program.”[83]  The lending platform, with the help of its promoter, allegedly represented that it would generate high returns on its customers’ investments by using a proprietary “volatility software trading bot.”  Instead, the complaint alleged, the company transferred investor funds to digital wallets controlled by the company, its founder, its promoter, and others.  The complaint further alleged that the company misled investors by failing to disclose commissions paid to promoters around the world.  The SEC previously reached settlements with two individuals in a related action for promoting the lending program, and the company’s top U.S. promoter pled guilty to criminal charges brought by the Department of Justice.  The litigation remains ongoing.

In November, the SEC filed an action against a California individual for allegedly conducting two unregistered securities offerings and misappropriating investor funds.[84]  The SEC found that he had raised over $3.6 million in Bitcoin from these offerings by promising an extremely high rate of return on the investments through, among other activities, fulfillment of social media marketing orders and “cryptocurrency trading and advertising arbitrage.”  The complaint alleges that he used at least $1 million of investor funds to pay personal expenses and, despite representations to the contrary, prevented investors from withdrawing their funds.  The U.S. Attorney’s Office for the Northern District of California has also brought criminal charges against the individual.  The litigation remains ongoing.

In December, the SEC filed an action against a Latvian citizen for allegedly conducting two fraudulent offerings, one involving the sale of unregistered digital tokens as part of an ICO and the other involving the investment of digital assets in a cloud mining company.[85]  In the former, the individual claimed users of the token could store their digital assets in a secure digital wallet and then spend them “like any other debit card,” but the complaint alleges that all of these claimed products and services were fictitious.  In the latter, the individual claimed that investors would receive a daily “automatic payout” from a cloud mining program, but the complaint similarly alleges that these services never existed.  The complaint alleges that the individual used fictitious names, phone numbers, addresses, and online profiles to market both offerings and misappropriated nearly all funds raised from each.  The litigation remains ongoing.

VI.  Insider Trading

In addition to a significant uptick in insider trading enforcement actions in the second half of 2021, an indication that the SEC has reinvigorated its focus on insider trading cases, the SEC suffered a rare trial loss (after the alleged tipper defendant settled[86]) in a previously discussed insider trading case.

In December 2020, the SEC brought a case against a mortgage broker accused of being tipped by his brother-in-law, who was corporate controller at an IT company whose stock and options were traded by the broker.[87]  The case went to trial in late 2021, and after the close of the SEC’s case, the defense moved, as is typical, for a Rule 50 Judgment as a Matter of Law.  Surprisingly, and without the defense presenting any portion of its case, the court granted the defense’s motion and dismissed the case.[88]  The SEC’s case was built around circumstantial evidence of what it characterized as “highly suspicious trading,” but the judge concluded that neither the timing nor the manner of the trading nor the communications between the brothers-in-law were suspicious.  Despite surviving all pre-trial motions to dismiss the case, the judge concluded that he was having trouble finding “any circumstantial evidence that would justify a finding that [the broker] got insider information and took some action on it.”  Whether the SEC will file an appeal remains an open question, but as of yet, no appeal has been filed.

Below is an overview of insider trading enforcement actions brought in the second half of 2021.  Of particular note are two cases alleging insider trading against corporate outsiders who obtained material nonpublic information through unauthorized computer systems access.

A.  Cases Arising from Unauthorized Computer Systems Access

In July, the SEC filed an action against a foreign national who was allegedly selling stolen “insider trading tips” to individual investors on the dark web.[89]  According to the SEC’s complaint, beginning in December 2016, the individual obtained stolen order-book data from a securities trading firm as well as pre-release earnings reports of publicly traded companies and subsequently sold that information to investors.  The SEC’s complaint is seeking injunctive relief, disgorgement, and civil penalties.  The U.S. Attorney’s Office for the Southern District of New York filed parallel criminal charges against the individual.

In December, the SEC filed an action against five Russian nationals for allegedly trading based on stolen corporate earnings announcements obtained by hacking into the systems of two U.S.-based filing agent companies.[90]  According to the allegations in the SEC’s complaint, one of the individuals hacked into the filing agents’ systems and fed the earnings information to his associates, who then used 20 different brokerage accounts located around the world to make trades before over 500 corporate earnings announcements.  According to the SEC, the trades occurred between 2018 and 2020 and netted at least $82 million in profits.  The SEC complaint further alleged that the defendants shared the profits by funneling them through a Russian information technology company in which some of the individuals were involved as founders and directors.  The SEC’s complaint seeks civil penalties, disgorgement, and injunctive relief.  The U.S. Attorney’s Office for the District of Massachusetts filed parallel criminal charges against all five individuals and announced that one of the individuals has been extradited to the United States from Switzerland.

B.  Other Insider Trading Cases

In July, the SEC filed an action against three individuals with insider trading related to stock purchases in advance of an announcement by a beverage company that it was pivoting its business to focus on blockchain technology.[91]  The SEC’s complaint alleged that an insider at the company provided confidential information related to the planned changes to his friend, who then subsequently passed that information on to another friend, who ultimately purchased 35,000 shares that resulted in profits of over $160,000 when the information was made public.  The SEC’s complaint seeks permanent injunctions and civil penalties against all three individuals, and an officer and director ban for the company insider.  The SEC also revoked the registration of the company’s securities as part of the action.  Two of the individuals involved in the case are currently in litigation with the SEC over an alleged market manipulation scheme.  The two individuals pled guilty to criminal charges in a parallel action brought in relation to the alleged market manipulation scheme.

In August, the SEC filed an action against a former employee of a biopharmaceutical company with insider trading based on trades made in advance of the company’s announcement that it would be acquired by a major pharmaceutical company.[92]  The SEC’s complaint alleged that the former employee, then the head of business development at the biopharmaceutical company, purchased short-term, out-of-the-money options of a similar pharmaceutical company after learning that his company was getting acquired by a large pharmaceutical company at a significant premium.  The SEC’s complaint alleged that the employee made the purchase just minutes after learning that the investment bankers had listed the similar company as a comparable company in their discussions with his company over valuations.  The SEC’s complaint alleged that the trading netted the former employee profits of just over $100,000, and seeks injunctive relief, a civil penalty, and an officer and director bar for the employee.  A motion to dismiss in the case was recently denied, and litigation is ongoing.[93]

Also in August, the SEC filed an action against three former software engineers and two of their associates with insider trading.[94]  The SEC alleged that a former employee and two associates made trades based on confidential, nonpublic information about subscriber growth at the former employee’s streaming media company.  The SEC’s complaint alleges that the former employees had passed along confidential information about subscriber growth, which was a key metric reported alongside their company’s quarterly earnings, to their close acquaintances, who traded the stock in advance of the key earnings releases.  The SEC’s complaint alleged that the trades netted approximately $3 million in profits.  All five individuals consented to judgments that impose various injunctive relief and civil penalties, including, for one of the software engineers, an officer and director ban.  The U.S. Attorney’s Office for the Western District of Washington filed parallel criminal charges against two of the software engineers and the two associates.

In September, the SEC announced a settlement with a leading alternative data provider company and its co-founder based on allegations that it engaged in deceptive practices and made material misrepresentations about how its alternative data was derived.[95]  The SEC alleged that the co-founder, in order to induce companies to share their data, made assurances to those companies that their data would be aggregated and anonymized prior to being fed into a statistical model.  However, the SEC alleged that for approximately four years, the company used non-aggregated and non-anonymized data to alter its model-generated estimates of app performance to make them more valuable to the trading firms that it sold the estimates to.  The SEC also alleged that the company further misrepresented to their trading firm customers that it generated the estimates in a way that was consistent with the consents they obtained from their data-providing clients and that they had effective internal controls to prevent the misuse of confidential data and to ensure compliance with federal securities laws.  The SEC alleged that the company and its co-founder were aware that the trading firm customers were making investment decisions based on the estimates, and in fact touted how closely their data correlated with the companies’ true performance and provided guidance to the trading firms as to how they could use the estimates to trade ahead of upcoming earnings announcements.  As part of the settlement agreement, neither the company nor the co-founder admitted any wrongdoing.  However, both consented to a cease-and-desist order that included a $10 million penalty for the company and a $300,000 penalty for the co-founder.  The settlement also included a three-year public company officer and director ban for the co-founder.

Also in September, the SEC brought an action against a former IT manager at a pharmaceutical company with insider trading based on four trades made just prior to public announcements that were allegedly based on material nonpublic information shared with him by a former colleague at the company.[96]  The SEC’s complaint alleged that the manager used nonpublic information on the company’s earnings, drug approvals, and a pending merger with a major pharmaceutical company to place highly profitable options trades.  The SEC alleged that the manager made over $8 million in combined profits and avoided losses, and shared some of his profit with the former colleague in the form of overseas cash payments.  The manager consented to a judgment which enjoined him from violating the alleged provisions and barred him from acting as an officer or director of a public company, with civil penalties in an amount to be determined by the court.  The U.S. Department of Justice, Fraud Section, announced parallel criminal charges against the manager.

In September, the SEC brought an action against a quantitative analyst who worked at two prominent asset management firms for allegedly perpetuating a years-long front-running scheme that generated at least $8.5 million in profits.[97]  The SEC alleged that the analyst used information he had about his firm’s securities orders to place similar orders just before the firm on nearly 3,000 occasions, taking advantage of the price movements caused by the firm’s trades.  The SEC’s complaint alleges that the analyst utilized his wife’s brokerage account to make the trades.  The SEC’s complaint seeks disgorgement plus interest, civil penalties, and injunctive relief.  The U.S. Attorney’s Office for the Southern District of New York filed parallel criminal charges against the analyst.

Also in September, the SEC brought an action against a compliance analyst, who was a foreign national working at an overseas office of an investment bank, for allegedly placing trades in advance of corporate events involving the investment bank’s clients.[98]  The SEC’s complaint alleges that the individual used his position as a compliance analyst to place trades in advance of at least 45 events involving the investment bank’s clients.  The SEC alleged that the individual took steps to avoid detection, including only placing relatively small trades and using multiple U.S.-based brokerage accounts held in his parent’s name.  The SEC obtained an emergency court freezing the individual’s assets.  The trades allegedly generated more than $471,000 in gains.  The SEC is seeking injunctive relief, disgorgement, and a civil penalty, and has also named the individual’s parents as relief defendants in the action.

In November, the SEC brought an action against a partner at a global management consulting firm for insider trading.[99]  The SEC alleged that the partner purchased out-of-the-money call options of a company after he learned that one of the consulting firm’s clients would be acquiring the company.  According to the SEC’s complaint, the partner sold the options the morning of the acquisition announcement, just days before they were set to expire, for profits totaling over $450,000.  The SEC also alleged that the partner violated his firm’s policies by failing to pre-clear the trades.  The SEC’s complaint seeks injunctive relief and a civil penalty.  The U.S. Attorney’s Office for the Southern District of New York filed parallel criminal charges against the partner.

In December, the SEC brought an action against a medical school alleging insider trading in the securities of a biotechnology company in advance of that company’s announcement of positive drug trial results for its flagship drug candidate.[100]  The SEC alleged that the professor entered into a consulting relationship with the biotechnology company to serve as its lead clinical investigator for the drug trial, and that, through his role, he learned material nonpublic information about the drug trial results.  The complaint alleged that upon learning of the positive results, the professor purchased over 8,000 shares of the company’s stock, which, upon release of the drug trial results, rose approximately 300% and generating gains of over $130,000.  The SEC reached a settlement with the professor that, if approved by the court, provides for a permanent injunction and a civil penalty in an amount to be determined by the court at a later date.  The U.S. Attorney’s Office for the Northern District of Illinois announced parallel criminal charges against the professor.

VII.  Market Manipulation

There were three alleged market manipulation schemes that were the focus of SEC enforcement actions during the second half of 2021.

In September, the SEC, in two separate complaints, commenced actions against four people and five entities in an allegedly fraudulent microcap operation that generated more than $10 million in profits.[101]  The SEC also sought an order to freeze the assets of seven of the defendants and one relief defendant.  According to the SEC’s first complaint, one of the individuals and his son allegedly acquired millions of shares in U.S. publicly traded microcap companies, disguised their control over the companies, and then dumped their shares into the public markets in violation of the securities laws.  The SEC alleged that, while concealing their holdings in the companies, they allegedly engaged in manipulative trading and generated artificial demand for the stock by making misleading statements to investors.  According to the SEC’s second complaint, two associates of the individual and his son allegedly used their roles as officers or majority shareholders at several of the microcap companies to hide the individual’s control, while simultaneously helping him and his son acquire and then sell millions of the companies’ shares.  The SEC also alleged that one of the associates made false and misleading statements in response to subpoenas issued by the SEC and during a subsequent interview.  The SEC is seeking injunctive relief, disgorgement and civil penalties against all of the parties.  The SEC is also seeking penny stock bars against three of the non-entity defendants, conduct-based injunctions against the individual and his son, and officer and director bars against the two company-insider associates.

Also in September, the SEC brought an action against an individual and his friend for allegedly engaging in a coordinated operation to collect liquidity rebates from exchanges by wash trading put options of certain “meme stocks” in early 2021.[102]  The SEC’s complaint alleged that the individual was able to generate at least $668,000 in profits from approximately 11,400 trades made in a way that took advantage of a certain brokerage firms’ maker-taker rebate programs.  The friend generated approximately $51,000 in profits as a result of approximately 2,300 trades.  The SEC alleged that the individual placed initial orders on one side of the market utilizing brokerage accounts that passed rebates back to their customers and then placed opposite orders in brokerage accounts that did not charge trading fees, thereby essentially trading with himself and retaining the rebates.  The SEC alleged that the practice impacted the market by skewing the volume in certain option contracts and induced other traders to place trades in otherwise illiquid option contracts.  Litigation against the individual is ongoing.  The friend, without admitting or denying the allegations, consented to a judgment providing for injunctive relief, disgorgement and a civil monetary penalty of $25,000.

In October, the SEC brought an action against a webcast host for allegedly making more than 100 false statements regarding public companies.[103]  According to the SEC’s complaint, the host received advance notice of companies about which another individual allegedly planned to spread false statements, after which the host shared the names of those companies with his subscribers.  The SEC alleged that the conduct led to temporary increases in the companies’ stock prices and netted the host more than $347,000 in profits.  The SEC alleged that the host was working as part of a broader group; the complaint follows a similar complaint against a different individual allegedly involved in the scheme.  The host agreed to cooperate with the SEC and has consented to the entry of a judgment that provides for injunctive relief, disgorgement, a civil penalty in an amount to be determined by the court, a penny stock bar and a bar from the securities industry generally.  The host also pleaded guilty to criminal charges brought in a parallel action by the U.S. Attorney’s Office for the Northern District of Georgia.

Also in October, the SEC filed an emergency action and obtained an injunction and asset freeze against an individual, alleging that he used his Twitter handle to encourage his followers to buy stocks in which the individual had holdings.[104]  According to the SEC, the individual encouraged his followers to invest in the stock and then sold his own stock at inflated prices while continuing to recommend on Twitter that people purchase the stock.  The SEC has alleged violations of the antifraud provisions of the federal securities laws and seeks a permanent injunction, disgorgement, civil penalties, and the asset freeze already granted by the court.

VIII.  Offering Frauds

The SEC continued to bring numerous offering fraud cases, which often allege violations by individuals and companies that target particular groups of investors, sometimes referred to as affinity frauds.

A.  Penny Stock Schemes

In August, the SEC brought an action against a company, its CEO, and several other entities and individuals with participating in an alleged penny stock fraud scheme.[105]  According to the SEC, the company bought shares of another company’s stock with the understanding that the offering proceeds would be used to secretly finance stock promotions.  Those involved then allegedly misled investors about how offering proceeds would be used and the promotional activities undertaken to boost the value of the stock.  The SEC has alleged violations of the antifraud provisions of the federal securities laws and seeks disgorgement of ill-gotten gains, civil penalties, permanent injunctive relief, and penny stock bar, and officer and director bars.

In August, the SEC brought an emergency action against a public company’s chairman, several of his associates, and several clients of the company.[106]  The SEC alleged that the chairman and his associates masterminded and implemented a scheme that allowed the clients—who controlled microcap companies—to conceal their control and ownership of those companies through a network of offshore shell companies.  According to the SEC, the clients used this system to dump their stock while hiding their control positions from investors.  In December, the SEC alleged violations by three more clients for activity stemming from the same alleged scheme.[107]  In both complaints, the SEC seeks permanent injunctions, conduct based injunctions, disgorgement, civil penalties and penny stock bars.

B.  Frauds Targeting Senior Citizens and Retirees

In August, the SEC filed several actions based on different Ponzi-like schemes.  In one, the SEC brought an emergency action and obtained temporary relief against a Minnesota couple and various entities they controlled.  According to the SEC, the couple raised almost $17.6 million by promising friends and family—including many elderly retirees—that investments would be used to trade foreign currencies.[108]  The SEC’s complaint alleged that, in fact, funds were used to pay returns to existing investors and to support other businesses.  The SEC is seeking preliminary and permanent injunctions, disgorgement, civil penalties, and an asset freeze.

Also in August, the SEC brought an emergency action against an individual along with the investment adviser with which he was associated, and an investment fund he controlled.[109]  The SEC alleged that he—and persons directed by him—raised more than $110 million from investors—including many elderly retirees—for his investment fund and then used money from new investors to pay earlier investors.  The SEC is seeking preliminary and permanent injunctions, disgorgement, civil penalties, an asset freeze, and the appointment of a receiver.

In a similar case, the SEC brought an emergency action, and obtained an asset freeze and temporary relief, against an individual who allegedly used an investment adviser to solicit over $10 million in investments from clients—many of whom were elderly—into an investment fund, only to use the funds for Ponzi-like payments.[110]  The SEC is seeking preliminary and permanent injunctions, disgorgement, and civil penalties.

C.  Frauds Targeting Affinity Groups

In September, the SEC brought an action against a payday loan company and its CEO for an alleged Ponzi-like scheme targeting South Florida’s Venezuelan-American community.[111]  According to the SEC’s complaint, the CEO raised at least $66 million by telling investors that their money would be used to make payday loans, but in reality, he misappropriated the funds for personal use and to make payments to other investors.  The SEC seeks permanent injunctions, disgorgement, and civil penalties from each of the defendants and an officer and director bar against the CEO.

D.  Frauds Related to Natural Resource Offerings

In September, the SEC announced a settled action against two individuals and the entities they controlled for making misrepresentations in connection with unregistered oil and gas securities offerings.[112]  The two individuals—acting as unregistered brokers—allegedly made material misstatements regarding debt and equity securities in oil and gas wells they sold to retail investors.  Without admitting or denying the SEC’s allegations, the two entities each agreed to pay a civil penalty of $225,000, and the individuals each agreed to pay a civil penalty of $75,000, and further agreed to prohibitions on future undertakings related to offerings.

Also in September, the SEC brought an action against a mining company and its two managing members for their participation in an unregistered offering related to a Columbian mining venture.[113]  According to the SEC’s complaint, the two individuals raised approximately $2.7 million by misrepresenting to investors that they could share in the profits of a Columbian gold mining operation and that all the necessary permits had been obtained.  The SEC is seeking permanent injunctions, disgorgement, and civil penalties.  To date, one of the managing members has offered to settle with the SEC for a permanent injunction, disgorgement, and penalties totaling approximately $820,000.

E.  Misuse of Investor Funds

In July, the SEC filed an emergency action and sought and received a temporary restraining order and asset freeze against an investment firm and two individuals associated with the firm.[114]  According to the SEC’s complaint, the firm represented to investors that their money would be invested according to recommendations made by an artificial intelligence supercomputer that consistently provided large returns for investors.  The SEC alleged that defendants then misused investor money for personal use and for paying other investors.  The complaint alleged the firm and two individuals violated the antifraud provisions of the federal securities laws.  Further, the complaint alleged that one individual acted as the control person under the Exchange Act.  The SEC is seeking permanent injunctions, disgorgement, and civil penalties.

Also in July, the SEC filed a settled action against an individual in connection with his involvement in two companies.[115]  According to the SEC, he misappropriated investor funds and used those funds for personal use, secretly sold stock while paying promoters to recommend the same stock to retail investors, failed to provide the required disclosures in connection with his stock trading, and made material misrepresentations to investors regarding one company’s products.  The SEC sought injunctive relief, an officer and director bar, a penny stock bar, disgorgement, and civil penalties.  Without admitting or denying the allegations, the individual consented to a settlement that included an injunction, an officer and director bar and penny stock bars, and disgorgement and civil penalty in excess of $1.3 million.

In August, the SEC brought an emergency action and obtained temporary relief against two entities and the individual who controlled them to stop an alleged Ponzi scheme.[116]  The SEC alleged that the individual told investors that offering proceeds would be used to fund small business loans.  According to the SEC, only a small portion of the $70 million raised was used for such small business loans; instead, the rest was used to pay returns to prior investors and to pay sales agents who promoted the investments.  The SEC complaint seeks preliminary and permanent injunctions, disgorgement, and civil penalties, as well as an officer and director bar against the individual.

In September, the SEC brought an emergency action and obtained an asset freeze against a real estate company and its president for alleged securities fraud in connection with EB-5 offerings tied to two development projects.[117]  According to the SEC, the president raised more than $229 million by misrepresenting the source of financing for the projects, the scope of the projects, and the experience of the development and construction teams in offering materials, then misappropriated millions of dollars for unauthorized purposes.  The complaint requests a permanent injunction, disgorgement, civil penalties, an asset freeze, and the appointment of a monitor.

F.  Misleading Statements to Investors

In July, the SEC filed an emergency action against an individual, alleging that he made misleading statement to encourage investors to invest in several microcap companies.[118]  According to the SEC, the individual and others he worked with encouraged investors to make such investments during high pressure sales calls or email promotions and the individual received money from the stock sale proceeds of one of the microcap companies.  The SEC is seeking an asset freeze, permanent injunctions, disgorgement, civil penalties, and penny stock and officer and director bars.

The SEC filed an emergency action in July against an investment company and its director.[119]  According to the SEC, the company and its director raised money from investors by falsely representing that the company had sufficient funds to acquire three Italian cycling companies and that the director had invested his own money in the offerings.  The SEC alleged that the director misappropriated the funds for personal use and hid from investors the fact that the company had failed to acquire the cycling companies.  The complaint seeks emergency relief, permanent injunctions, disgorgement, civil penalties, and a conduct-based injunction, and an officer and director bar against the director.

The SEC also filed an action in July against an individual, alleging that he made misrepresentations to investors, created false documents, misappropriated investor funds, and acted as an unregistered broker-dealer.[120]  According to the SEC, the individual falsely represented to investors that he was a licensed securities professional, provided false documents showing that he was associated with a licensed broker-dealer, and further provided false account statements and trading data to make it appear that his trading on their behalf was generating more value than it was.  The SEC alleges violations of the antifraud provisions and broker-dealer registration provisions of the federal securities laws.  The complaint seeks an injunction, disgorgement, and a civil penalty.

In September, the SEC brought an action against three individuals—as well as a funding portal and its CEO—for their roles in selling nearly $2 million of unregistered securities through crowdfunding offerings.[121]  According to the SEC, the three individuals misrepresented information in their crowdfunding offering, which they conducted through two cannabis and hemp companies.  Specifically, one of the individuals hid his involvement in the offerings due to concerns about a prior criminal conviction.  The SEC also brought an action against the registered funding portal and its CEO that hosted the offerings for allegedly failing to address red flags—such as the prior criminal conviction—associated with the offerings.  The complaint seeks injunctions, disgorgement, and civil penalties.

In October, the SEC filed an action against a hemp company and its co-founders for allegedly making misrepresentations to investors.[122]  According to the SEC, the company misrepresented that it was a fully integrated company processing its own hemp, misstated historical revenue numbers, and provided unsupported projections for future revenues.  Further, the SEC alleges that the co-founders misappropriated several million dollars from the company for personal use.  The SEC seeks permanent injunctions, disgorgement, civil penalties, and officer and director and penny stock bars against the co-founders.  The U.S. Attorney’s Office for the Southern District of New York filed criminal charges against the individual co-founders.

The SEC also filed an action in October against a real estate investment company and its co-founders.[123]  According to the SEC, the company and its co-founders made misrepresentations to investors about the source of investor returns and paid investors using funds raised from other investors.  Further, one of the co-founders allegedly made representations to investors about his education in finance and his investment experience without disclosing that he had been barred by FINRA from affiliating with any FINRA-member firm.  The SEC’s complaint alleged the company and its co-founders violated the antifraud and securities offering and broker-dealer registration provisions of the federal securities laws.  The complaint is seeking permanent injunctions, disgorgement, and civil penalties.

In November, the SEC brought an emergency action and obtained temporary relief against a claims aggregator—a firm that submits claims to administrators tasked with returning settlement funds to harmed investors—and its three principals in federal court.[124]  According to the SEC, these individuals, and the entities they control, stole at least $40 million from 400 distribution funds by submitting false claims to settlement fund administrators.  The U.S. Attorney’s Office for the Eastern District of Pennsylvania filed parallel criminal charges against the three principals.  In addition to the asset freeze and temporary restraining order granted by the court, the SEC is seeking disgorgement and civil penalties.

__________________________

[1]  SEC Speech, PLI Broker/Dealer Regulation and Enforcement 2021, Gurbir Grewal, Division of Enforcement (Oct. 6, 2021), available at https://www.sec.gov/news/speech/grewal-pli-broker-dealer-regulation-and-enforcement-100621.

 [2]  SEC Speech, Remarks at SEC Speaks 2021, Gurbir Grewal, Director, Division of Enforcement (Oct. 13, 2021), available at https://www.sec.gov/news/speech/grewal-sec-speaks-101321.

 [3]  SEC Press Release, SEC Charges Dialysis Provider and Three Former Senior Executives with Revenue Manipulation Scheme (December 6, 2021), available at https://www.sec.gov/news/press-release/2021-252.

[4]  SEC Speech, Remarks at SEC Speaks 2021, Gurbir Grewal, Director, Division of Enforcement (Oct. 13, 2021), available at https://www.sec.gov/news/speech/grewal-sec-speaks-101321.

[5] SEC Press Release, JPMorgan Admits to Widespread Recordkeeping Failures and Agrees to Pay $125 Million Penalty to Resolve SEC Charges (December 17, 2021), available at https://www.sec.gov/news/press-release/2021-262.

[6] SEC Speech, Remarks at SEC Speaks 2021, Gurbir Grewal, Director, Division of Enforcement (Oct. 13, 2021), available at https://www.sec.gov/news/speech/grewal-sec-speaks-101321.

 [7]  SEC Speech, Prepared Remarks at the Securities Enforcement Forum, Chair Gary Gensler (Nov. 4, 2021), available at https://www.sec.gov/news/speech/gensler-securities-enforcement-forum-20211104.

 [8]  SEC Speech, Remarks at SEC Speaks 2021, Gurbir Grewal, Director, Division of Enforcement (Oct. 13, 2021), available at https://www.sec.gov/news/speech/grewal-sec-speaks-101321.

 [9]  SEC Press Release, SEC Announces Enforcement Results for FY 2021 (Nov. 18, 2021), available at https://www.sec.gov/news/press-release/2021-238.

 [10]  SEC Press Release, SEC Charges SPAC, Sponsor, Merger Target, and CEOs for Misleading Disclosures Ahead of Proposed Business Combination (July 13, 2021), https://www.sec.gov/news/press-release/2021-124.

 [11]  SEC Press Release, Nikola Corporation to Pay $125 Million to Resolve Fraud Charges (Dec. 21, 2021), available at https://www.sec.gov/news/press-release/2021-267.

 [12]  SEC Press Release, SEC Charges Founder of Nikola Corp. With Fraud (July 29, 2021), available at https://www.sec.gov/news/press-release/2021-141.

 [13]  SEC Statement, Statement of Commissioner Elad L. Roisman (Dec. 20, 2021), available at https://www.sec.gov/news/statement/roisman-20211220.

 [14]  SEC Press Release, Daniel S. Kahl Appointed Acting Director of the Division of Examinations; Peter B. Driscoll to Depart Agency (July 14, 2021), available at https://www.sec.gov/news/press-release/2021-126.

 [15]  SEC Press Release, Sanjay Wadhwa Named Deputy Director of Enforcement Division (Aug. 18, 2021), available at https://www.sec.gov/news/press-release/2021-157.

 16]  SEC Press Release, Dan Berkovitz Named SEC General Counsel; John Coates to Leave SEC (Sept. 28, 2021), available at https://www.sec.gov/news/press-release/2021-198.

 [17]  SEC Press Release, Nicole Creola Kelly Named Chief of SEC Whistleblower Office (Nov. 5, 2021), available at https://www.sec.gov/news/press-release/2021-225.

 [18]  SEC Press Release, Daniel R. Gregus Named Director of Chicago Office (Nov. 15, 2021), available at https://www.sec.gov/news/press-release/2021-234.

 [19]  SEC Press Release, SEC Appoints Haoxiang Zhu Director of Division of Trading and Markets (Nov. 19, 2021), available at https://www.sec.gov/news/press-release/2021-242.

 [20]  SEC Press Release, James E. Grimes Named Chief Administrative Law Judge at SEC (Dec. 17, 2021), available at https://www.sec.gov/news/press-release/2021-263.

 [21]  SEC Press Release, William Birdthistle Named Director of Division of Investment Management (Dec. 21, 2021), available at https://www.sec.gov/news/press-release/2021-268.

[22]  SEC Public Statement, Statement in Connection with the SEC’s Whistleblower Program (Aug. 2, 2021), available at https://www.sec.gov/news/public-statement/gensler-sec-whistleblower-program-2021-08-02.

 [23]  SEC Rules Release, Procedures for the Commission’s Use of Certain Authorities Under Rule 21F-3(B)(3) and Rule 21F-6 of the Securities Exchange Act of 1934, available at https://www.sec.gov/rules/policy/2021/34-92565.pdf.

 [24] SEC Public Statement, Statement on the Commission’s Action to Disregard Recently-Amended Whistleblower Rules (Aug. 5, 2021), available at https://www.sec.gov/news/public-statement/peirce-roisman-whistleblower-procedures-2021-08-05.

 [25] SEC Press Release, SEC Bars Two Individuals from Whistleblower Award Program (Sept. 28, 2021), available at https://www.sec.gov/news/press-release/2021-199.

 [26]  SEC Press Release, SEC Awards More Than $1 Million to Whistleblower (July 15, 2021), available at https://www.sec.gov/news/press-release/2021-128.

 [27]  SEC Press Release, SEC Awards Nearly $3 Million to Whistleblower (July 21, 2021), available at https://www.sec.gov/news/press-release/2021-134.

 [28]  SEC Press Release, SEC Issues Whistleblower Awards Totaling More Than $4 Million (Aug. 2, 2021), available at https://www.sec.gov/news/press-release/2021-143.

 [29]  SEC Press Release, SEC Awards $3.5 Million to Whistleblowers in Two Enforcement Actions (Aug. 6, 2021), available at https://www.sec.gov/news/press-release/2021-146.

 [30]  SEC Press Release, SEC Issues Nearly $6 Million in Whistleblower Awards (Aug. 10, 2021), available at https://www.sec.gov/news/press-release/2021-149.

 [31]  SEC Press Release, SEC Issues Whistleblower Awards Totaling $2.6 Million (Aug. 27, 2021), available at https://www.sec.gov/news/press-release/2021-168.

 [32]  SEC Press Release, SEC Surpasses $1 Billion in Awards to Whistleblowers with Two Awards Totaling $114 Million (Sept. 15, 2021), available at https://www.sec.gov/news/press-release/2021-177.

 [33]  SEC Press Release, SEC Awards $11.5 Million to Two Whistleblowers (Sept. 17, 2021), available at https://www.sec.gov/news/press-release/2021-180.

 [34]  SEC Press Release, SEC Awards Approximately $36 Million to Whistleblower (Sept. 24, 2021), available at https://www.sec.gov/news/press-release/2021-192.

 [35]  SEC Press Release, SEC Awards $40 Million to Two Whistleblowers (Oct. 15, 2021), available at https://www.sec.gov/news/press-release/2021-211.

 [36]  SEC Press Release, SEC Awards More Than $2 Million to Whistleblower for Successful Related Action (Oct. 29, 2021), available at https://www.sec.gov/news/press-release/2021-220.

 [37]  SEC Press Release, SEC Issues Awards Totaling More Than $15 Million to Two Whistleblowers (Nov. 10, 2021), available at https://www.sec.gov/news/press-release/2021-232.

 [38]  SEC Press Release, SEC Issues Whistleblower Awards Totaling Approximately $10.4 Million (Nov. 22, 2021), available at https://www.sec.gov/news/press-release/2021-243.

 [39]  SEC Press Release, SEC Issues Whistleblower Nearly $5 Million Award (Dec. 7, 2021), available at https://www.sec.gov/news/press-release/2021-253.

 [40]  SEC Press Release, SEC Charges Executives of Network Infrastructure Company with Accounting Fraud (July 15, 2021), available at https://www.sec.gov/news/press-release/2021-127.

 [41]  SEC Press Release, SEC Charges Retailer and Former CEO for Accounting, Reporting, and Control Failures (July 21, 2021), available at https://www.sec.gov/news/press-release/2021-133.

 [42]  SEC Press Release, SEC Charges The Kraft Heinz Company and Two Former Executives for Engaging in Years-Long Accounting Scheme (Sept. 3, 2021), available at https://www.sec.gov/news/press-release/2021-174.

 [43]  SEC Press Release, SEC Charges Dialysis Provider and Three Former Senior Executives with Revenue Manipulation Scheme (Dec. 6, 2021), available at https://www.sec.gov/news/press-release/2021-252.

 [44]  SEC Press Release, SEC Charges Issuer with Cybersecurity Disclosure Controls Failures (Jun. 15, 2021), available at https://www.sec.gov/news/press-release/2021-102.

 [45]  SEC Press Release, SEC Charges Company and Two Executives for Misleading COVID-19 Disclosures (July 7, 2021), available at https://www.sec.gov/news/press-release/2021-120.

 [46]  SEC Press Release, SEC Charges Former CEO of Technology Company with $80 Million Fraud (Aug. 25, 2021), available at https://www.sec.gov/news/press-release/2021-164.

 [47]  SEC Press Release, SEC Charges Pearson plc for Misleading Investors About Cyber Breach (Aug. 16, 2021), available at https://www.sec.gov/news/press-release/2021-154.

 [48]  SEC Press Release, SEC Charges Principals of Subprime Automobile Finance Company with Fraud (Sept. 23, 2021), available at https://www.sec.gov/news/press-release/2021-189.

 [49]  SEC Press Release, SEC Charges Oilfield Services Company and Former CEO With Failing to Disclose Executive Perks and Stock Pledges (Nov. 22, 2021), available at https://www.sec.gov/news/press-release/2021-244.

 [50]  SEC Press Release, SEC Charges Exchange-Traded Product and Its General Partner With Disclosure Failures (Nov. 8, 2021), available at https://www.sec.gov/news/press-release/2021-229.

 [51]  SEC Press Release, SEC Charges Ernst & Young, Three Audit Partners, and Former public Company CAO with Audit Independence Misconduct (Aug. 2, 2021), available at https://www.sec.gov/news/press-release/2021-144.

 [52]  SEC Press Release, UBS Settles Charges Related to Investments in Complex Exchange-Traded Product (July 19, 2021), available at https://www.sec.gov/news/press-release/2021-130.

 [53]  SEC Press Release, SEC Announces $97 Million Enforcement Action Against TIAA Subsidiary for Violations in Retirement Rollover Recommendations (July 13, 2021), available at https://www.sec.gov/news/press-release/2021-123.

 [54]  SEC Press Release, SEC Charges Former Executives of Registered Investment Advisor with Fraud (Sept. 30, 2021), available at https://www.sec.gov/news/press-release/2021-204.

 [55]  SEC Press Release, SEC Wins Jury Trial: Hedge Fund Adviser Found Liable for Securities Fraud (Nov. 5, 2021), available at https://www.sec.gov/news/press-release/2021-224.

 [56]  SEC Press Release, SEC Charges Private Equity Fund Advisor with Fee and Expense Disclosure Failures (Dec. 20, 2021), available at https://www.sec.gov/news/press-release/2021-266.

 [57]  SEC Press Release, SEC Charges Hedge Fund Trader in Lucrative Front-Running Scheme (July 2, 2021), available at https://www.sec.gov/news/press-release/2021-118.

 [58]  SEC Press Release, SEC Charges Real Estate CEO with Defrauding Investors (July 30, 2021), available at https://www.sec.gov/news/press-release/2021-142.

 [59]  SEC Press Release, SEC Charges Financial Advisor With Stealing Investor Funds to Pay Off Credit Cards, Buy Gold Coins (Oct. 28, 2021), available at https://www.sec.gov/news/press-release/2021-217.

 [60]  SEC Press Release, SEC Charges 27 Financial Firms for Form CRS Filing and Delivery Failures (July 26, 2021), available at https://www.sec.gov/news/press-release/2021-139.

[61]  SEC Press Release, McKinsey Affiliate to Pay $18 Million for Compliance Failures in Handling Nonpublic Information (Nov. 19, 2021), available at https://www.sec.gov/news/press-release/2021-241.

 [62]  SEC Press Release, SEC Charges Investment Adviser and Associated Individuals with Causing Violations of Regulation SHO (Aug. 17, 2021), available at https://www.sec.gov/news/press-release/2021-156.

 [63]  SEC Press Release, SEC Charges School District and Former Executive with Misleading Investors in Bond Offering (Sept. 16, 2021), available at https://www.sec.gov/news/press-release/2021-178.

 [64]  SEC Press Release, SEC Charges Underwriter and Its Former CEO With Misconduct In Muni Bond Tender Offer (Aug. 26, 2021), available at https://www.sec.gov/news/press-release/2021-166.

 [65]  SEC Press Release, RBC Charged With Failing to Give Priority to Retail and Institutional Investors in Municipal Offerings (Sept. 17, 2021), available at https://www.sec.gov/news/press-release/2021-179.

 [66]  SEC Press Release, SEC Charges Firm and Two Principals in First-Ever Actions Enforcing Rule on Duties of Municipal Advisors (Sept. 23, 2021), available at https://www.sec.gov/news/press-release/2021-188.

 [67]  SEC Press Release, SEC Charges Rogue Trader Who Bankrupted His Firm (Sept. 30, 2021), available at https://www.sec.gov/news/press-release/2021-205.

 [68]  SEC Press Release, Credit Suisse to Pay Nearly $475 Million to U.S. and U.K. Authorities to Resolve Charges in Connection with Mozambican Bond Offerings (Oct. 19, 2021), available at https://www.sec.gov/news/press-release/2021-213.

 [69] Id.

 [70]  SEC Press Release, SEC Announces Three Actions Charging Deficient Cybersecurity Procedures (Aug. 30, 2021), available at https://www.sec.gov/news/press-release/2021-169.

 [71]  SEC Press Release, SEC Charges Fixed Income Clearing Corp. With Having Inadequate Risk Management Policies (Oct. 29, 2021), available at https://www.sec.gov/news/press-release/2021-219.

 [72]  SEC Press Release, JPMorgan Admits to Widespread Recordkeeping Failures and Agrees to Pay $125 Million Penalty to Resolve SEC Charges (Dec. 17, 2021), available at https://www.sec.gov/news/press-release/2021-262.

 [73]  CFTC Press Release, CFTC Orders JPMorgan to Pay $75 Million for Widespread Use by Employees of Unapproved Communication Methods and Related Recordkeeping and Supervision Failures (Dec. 17, 2021), available at https://www.cftc.gov/PressRoom/PressReleases/8470-21.

 [74]  SEC Press Release, ICO “Listing” Website Charged with Unlawfully Touting Digital Asset Securities (Jul. 14, 2021), available at https://www.sec.gov/news/press-release/2021-125.

 [75]  See SEC Statement, SEC Statement Urging Caution Around Celebrity Backed ICOs (Nov. 1, 2017), available at https://www.sec.gov/news/public-statement/statement-potentially-unlawful-promotion-icos.

 [76]  SEC Statement, In the Matter of Coinschedule by Commissioners Peirce and Roisman (July 14, 2021), available at https://www.sec.gov/news/public-statement/peirce-roisman-coinschedule.

 [77]  Id.

 [78]  Hester Peirce, Commissioner, SEC, Token Safe Harbor Proposal 2.0 (Apr. 13, 2021), available at https://www.sec.gov/news/public-statement/peirce-statement-token-safe-harbor-proposal-2.0.

 [79]  SEC Press Release, SEC Charges Poloniex for Operating Unregistered Digital Asset Exchange (Aug. 9, 2021), available at https://www.sec.gov/news/press-release/2021-147.

 [80]  SEC Press Release, SEC Charges Three Media Companies with Illegal Offerings of Stock and Digital Assets (Sep. 13, 2021), available at https://www.sec.gov/news/press-release/2021-175.

 [81]  SEC Press Release, Registration of Two Digital Tokens Halted (Nov. 10, 2021), available at https://www.sec.gov/news/press-release/2021-231.

 [82]  SEC Press Release, SEC Charges Decentralized Finance Lender and Top Executives for Raising $30 Million Through Fraudulent Offerings (Aug. 6, 2021), available at https://www.sec.gov/news/press-release/2021-145.

 [83]  SEC Press Release, SEC Charges Global Crypto Lending Platform and Top Executives in $2 Billion Fraud (Sep. 1, 2021), available at https://www.sec.gov/news/press-release/2021-172.

 [84]  SEC Press Release, SEC Charges Promoter with Conducting Cryptocurrency Investment Scams (Nov. 18, 2021), available at https://www.sec.gov/news/press-release/2021-237.

 [85]  SEC Press Release, SEC Charges Latvian Citizen with Digital Asset Fraud (Dec. 2, 2021), available at https://www.sec.gov/news/press-release/2021-248.

 [86]  The alleged tipper settled for a permanent injunction, a $240,000 fine, and a two-year officer and director bar, as well as a two-year bar under a parallel Rule 102(e) forbidding practice before the SEC.  See SEC Litigation Release, SEC Obtains Judgment Against Former Corporate Controller for Tipping Brother-in-Law Ahead of Merger Announcement (Nov. 15, 2021), available at https://www.sec.gov/litigation/litreleases/2021/lr25264.htm.

 [87]  SEC Litigation Release, SEC Charges Corporate Controller and His Brother-In-Law with Insider Trading Ahead of Merger Announcement (Dec. 11, 2020), available at https://www.sec.gov/litigation/litreleases/2020/lr24982.htm.

 [88]  Dean Seal, SEC Handed Rare Midtrial Defeat in Insider Trading Case (Dec. 14, 2021), available at https://www.law360.com/articles/1448811/sec-handed-rare-midtrial-defeat-in-insider-trading-case.

 [89]  SEC Press Release, SEC Charges TheBull with Selling “Insider Trading Tips” on the Dark Web (Jul. 9, 2021), available at https://www.sec.gov/news/press-release/2021-122.

 [90]  SEC Press Release, SEC Charges Five Russians in $80 Million Hacking and Trading Scheme (Dec. 20, 2021), available at https://www.sec.gov/news/press-release/2021-265.

 [91]  SEC Press Release, SEC Charges Three Individuals with Insider Trading (Jul. 9, 2021), available at https://www.sec.gov/news/press-release/2021-121.

 [92]  SEC Press Release, SEC Charges Biopharmaceutical Company Employee with Insider Trading (Aug. 17, 2021), available at https://www.sec.gov/news/press-release/2021-155.

 [93]  Order Denying Motion to Dismiss, S.E.C. v. Panuwat, No. 3:21-cv-06322 (N.D. Cal. Jan. 14, 2022) ECF No. 26.

 [94]  SEC Press Release, SEC Charges Netflix Insider Trading Ring (Aug. 18, 2021), available at https://www.sec.gov/news/press-release/2021-158.

 [95]  SEC Press Release, SEC Charges App Annie and its Founder with Securities Fraud (Sept. 14, 2021), available at https://www.sec.gov/news/press-release/2021-176.

 [96]  SEC Press Release, SEC Charges Former Pharmaceutical Global IT Manager in $8 Million Insider Trading Scheme (Sept. 17, 2021), available at https://www.sec.gov/news/press-release/2021-181.

 [97]  SEC Press Release, SEC Charges Quant Analyst in Multimillion Dollar Front-Running Scheme (Sept. 23, 2021), available at https://www.sec.gov/news/press-release/2021-186.

 [98]  SEC Press Release, SEC Charges Investment Bank Compliance Analyst with Insider Trading in Parents’ Accounts and Obtains Asset Freeze (Sept. 29, 2021), available at https://www.sec.gov/news/press-release/2021-203.

 [99]  SEC Press Release, SEC Charges Partner at Global Consulting Firm With Insider Trading (Nov. 10, 2021), available at https://www.sec.gov/news/press-release/2021-230.

 [100]  SEC Press Release, SEC Charges Clinical Drug Trial Investigator with Insider Trading (Dec. 20, 2021), available at https://www.sec.gov/news/press-release/2021-264.

 [101]  SEC Press Release, SEC Charges U.K.-Based Father and Son, and Two Others in Transatlantic Microcap Fraud Scheme (Sept. 23, 2021), available at https://www.sec.gov/news/press-release/2021-187.

 [102]  SEC Press Release, SEC Charges Two Individuals for Wash Trading Scheme Involving Options of “Meme Stocks” (Sept. 27, 2021), available at https://www.sec.gov/news/press-release/2021-195.

 [103]  SEC Press Release, SEC Charges Webcast Host for Role in Market Manipulation Scheme (Oct. 1, 2021), available at https://www.sec.gov/news/press-release/2021-206.

 [104]  SEC Press Release, SEC Obtains Asset Freeze and Other Relief in Halting Penny Stock Scheme on Twitter (Oct. 26, 2021), available at https://www.sec.gov/news/press-release/2021-214.

 [105]  SEC Press Release, SEC Charges Penny Stock Company, CEO and Others with Multi-Million Dollar Fraud (Aug. 16, 2021), available at https://www.sec.gov/news/press-release/2021-153.

 [106]  SEC Press Release, SEC Charges International Microcap Fraud Scheme Participants (Aug. 9, 2021), available at https://www.sec.gov/news/press-release/2021-148.

 [107]  SEC Press Release, SEC Charges Three Canadian Citizens in Fraudulent Penny Stock Scheme (Dec. 10, 2021), available at https://www.sec.gov/news/press-release/2021-255.

 [108]  SEC Press Release, SEC Obtains Emergency Relief, Charges Couple Who Operated $18 Million Ponzi Scheme (Aug. 31, 2021), available at https://www.sec.gov/news/press-release/2021-170.

 [109]  SEC Press Release, SEC Obtains Emergency Relief, Charges Investment Adviser and its Principal with Operating $110 Million Ponzi Scheme (Aug. 25, 2021), available at https://www.sec.gov/news/press-release/2021-163.

 [110]  SEC Press Release, SEC Obtains Court Order to Stop Investment Adviser’s Alleged Ongoing Offering Fraud (Aug. 13, 2021), available at https://www.sec.gov/news/press-release/2021-150.

 [111]  SEC Press Release, SEC Charges Florida Payday Lender and CEO with Affinity Fraud Targeting the Venezuelan-American Community (Sept. 27, 2021), available at https://www.sec.gov/news/press-release/2021-196.

 [112]  SEC Press Release, SEC Charges Two Companies and Their Principals with Misleading Investors in More Than a Dozen Oil and Gas Securities Offerings (Sept. 24, 2021), available at https://www.sec.gov/news/press-release/2021-193.

 [113]  SEC Press Release, SEC Charges Puerto Rican Company and Managing Members with Fraud (Sept. 21, 2021), available at https://www.sec.gov/news/press-release/2021-185.

 [114]  SEC Press Release, SEC Shuts Down Fraudulent Mother-Son Offering Involving Purported Supercomputer (July 19, 2021), available at https://www.sec.gov/news/press-release/2021-131.

 [115]  SEC Press Release, SEC Files Charges in Multi-Million Dollar Fraud Involving Two Companies (July 19, 2021), available at https://www.sec.gov/news/press-release/2021-132.

 [116]  SEC Press Release, SEC Obtains Emergency Relief, Charges Two Florida Companies and Their Principal Officer with Operating a Ponzi Scheme (Aug. 13, 2021), available at https://www.sec.gov/news/press-release/2021-151.

 [117]  SEC Press Release, SEC Obtains Emergency Relief Against New York Real Estate Developer Charged with EB-5 Securities Fraud (Sept. 28, 2021), available at https://www.sec.gov/news/press-release/2021-200.

 [118]  SEC Press Release, SEC Charges California Resident in Microcap Fraud Scheme Targeting Retail Investors (July 22, 2021), available at https://www.sec.gov/news/press-release/2021-135.

 [119]  SEC Press Release, SEC Halts Alleged Ongoing Offering Fraud Involving Cycling Companies (July 22, 2021), available at https://www.sec.gov/news/press-release/2021-136.

 [120]  SEC Press Release, SEC Charges Unlicensed Broker with Defrauding Investors (July 28, 2021), available at https://www.sec.gov/news/press-release/2021-140.

 [121]  SEC Press Release, SEC Charges Crowdfunding Portal, Issuer, and Related Individuals for Fraudulent Offerings (Sept. 20, 2021), available at https://www.sec.gov/news/press-release/2021-182.

 [122]  SEC Press Release, SEC Charges Hemp Company and Co-Founders with Fraud (Oct. 5, 2021), available at https://www.sec.gov/news/press-release/2021-208.

 [123]  SEC Press Release, SEC Charges Newport Beach Company and its Principals with Operating a $13.5 Million Ponzi-Like Scheme (Oct. 29, 2021), available at https://www.sec.gov/news/press-release/2021-221.

 [124]  SEC Press Release, SEC Obtains Emergency Relief in Case Charging Claims Aggregator and Principals with Multi-Million Dollar Fraud (Nov. 4, 2021), available at https://www.sec.gov/news/press-release/2021-222.

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The following Gibson Dunn lawyers assisted in the preparation of this client update:  Mark Schonfeld, Richard Grime, Barry Goldsmith, David Ware, Timothy Zimmerman, Lindsey Geher, Jeff Meyers, Ben Gibson, Kate Googins, Caelin Moriarty Miltko*, Sean Brennan*, and Jimmy Pinchak*.

Gibson Dunn is one of the nation’s leading law firms in representing companies and individuals who face enforcement investigations by the Securities and Exchange Commission, the Department of Justice, the Commodities Futures Trading Commission, the New York and other state attorneys general and regulators, the Public Company Accounting Oversight Board (PCAOB), the Financial Industry Regulatory Authority (FINRA), the New York Stock Exchange, and federal and state banking regulators.

Our Securities Enforcement Group offers broad and deep experience.  Our partners include the former Director of the SEC’s New York Regional Office, the former head of FINRA’s Department of Enforcement, the former United States Attorneys for the Central and Eastern Districts of California and the District of Maryland, and former Assistant United States Attorneys from federal prosecutors’ offices in New York, Los Angeles, San Francisco and Washington, D.C., including the Securities and Commodities Fraud Task Force.

Securities enforcement investigations are often one aspect of a problem facing our clients. Our securities enforcement lawyers work closely with lawyers from our Securities Regulation and Corporate Governance Group to provide expertise regarding parallel corporate governance, securities regulation, and securities trading issues, our Securities Litigation Group, and our White Collar Defense Group.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or any of the following:

Securities Enforcement Practice Group Leaders:
Richard W. Grime – Washington, D.C. (+1 202-955-8219, rgrime@gibsondunn.com)
Mark K. Schonfeld – New York (+1 212-351-2433, mschonfeld@gibsondunn.com)

Please also feel free to contact any of the following practice group members:

New York
Zainab N. Ahmad (+1 212-351-2609, zahmad@gibsondunn.com)
Matthew L. Biben (+1 212-351-6300, mbiben@gibsondunn.com)
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Joel M. Cohen (+1 212-351-2664, jcohen@gibsondunn.com)
Lee G. Dunst (+1 212-351-3824, ldunst@gibsondunn.com)
Barry R. Goldsmith (+1 212-351-2440, bgoldsmith@gibsondunn.com)
Mary Beth Maloney (+1 212-351-2315, mmaloney@gibsondunn.com)
Alexander H. Southwell (+1 212-351-3981, asouthwell@gibsondunn.com)
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Tina Samanta (+1 212-351-2469, tsamanta@gibsondunn.com)

Washington, D.C.
Stephanie L. Brooker (+1 202-887-3502, sbrooker@gibsondunn.com)
Daniel P. Chung (+1 202-887-3729, dchung@gibsondunn.com)
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Patrick F. Stokes (+1 202-955-8504, pstokes@gibsondunn.com)
F. Joseph Warin (+1 202-887-3609, fwarin@gibsondunn.com)

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Winston Y. Chan (+1 415-393-8362, wchan@gibsondunn.com)
Thad A. Davis (+1 415-393-8251, tadavis@gibsondunn.com)
Charles J. Stevens (+1 415-393-8391, cstevens@gibsondunn.com)
Michael Li-Ming Wong (+1 415-393-8234, mwong@gibsondunn.com)

Palo Alto
Michael D. Celio (+1 650-849-5326, mcelio@gibsondunn.com)
Paul J. Collins (+1 650-849-5309, pcollins@gibsondunn.com)
Benjamin B. Wagner (+1 650-849-5395, bwagner@gibsondunn.com)

Denver
Robert C. Blume (+1 303-298-5758, rblume@gibsondunn.com)
Monica K. Loseman (+1 303-298-5784, mloseman@gibsondunn.com)

Los Angeles
Michael M. Farhang (+1 213-229-7005, mfarhang@gibsondunn.com)
Douglas M. Fuchs (+1 213-229-7605, dfuchs@gibsondunn.com)
Nicola T. Hanna (+1 213-229-7269, nhanna@gibsondunn.com)
Debra Wong Yang (+1 213-229-7472, dwongyang@gibsondunn.com)

* Caelin Moriarty Miltko, Sean Brennan, and Jimmy Pinchak are recent law graduates working in the firm’s Washington, D.C., Denver and New York offices, respectively, and not yet admitted to practice law.

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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California has seen a flurry of legislative activity over the last couple of years focused on protecting the rights of employees entering separation or settlement agreements with employers.  Employers who have not updated their separation or severance agreement templates in the last few years should consider whether updates to their agreements are needed.  This is especially true in light of SB 331 which Governor Gavin Newsom signed into law on October 7, 2021.  SB 331, or the “Silenced No More Act,” introduces additional restrictions on settlement agreements, non-disparagement agreements and separation agreements executed with employees in California after January 1, 2022.

Background – Recent Legal Developments

California has made a number of changes to requirements for separation and settlement agreements over the past few years, including but not limited to:

• SB 1431, effective January 1, 2019, which amended the language of Section 1542 of the California Civil Code, often cited in settlement agreements, to read as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
• SB 820 which prohibits provisions in settlement agreements entered into after January 1, 2019 that prevent the disclosure of facts related to sexual assault, harassment, and discrimination claims “filed in a civil action” or in “a complaint filed in an administrative action.” SB 820 did not prohibit provisions requiring confidentiality of a settlement payment amount, and the law included an exception for provisions protecting the identity of the claimant where requested by the claimant.
• SB 1300, effective January 1, 2019, amended California’s Fair Employment and Housing Act to prohibit employers from requiring employees to agree to a non-disparagement agreement or other document limiting the disclosure of information about unlawful workplace acts in exchange for a raise or bonus, or as a condition of employment or continued employment. SB 1300 further prohibited employers from requiring, in exchange for a raise or bonus or as a condition of employment or continued employment, that an individual “execute a statement that he or she does not possess any claim or injury against the employer” or release “a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.”  Under the law, any such agreement is contrary to public policy and unenforceable.  That said, negotiated settlement agreements of civil claims supported by valuable consideration were exempted from these prohibitions.
• AB 749 went into effect on January 1, 2020 and further impacted settlement agreements by limiting the inclusion of “no-rehire” provisions in agreements that settle employment disputes. AB 749 created Code of Civil Procedure Section 1002.5, which prohibits an agreement to settle an employment dispute from containing “a provision prohibiting, preventing, or otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim, or any parent company, subsidiary, division, affiliate, or contractor of the employer.”  AB 749 defined an “aggrieved person” as “a person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.”  Notably, AB 749 continued to allow a “no-rehire” provision in a settlement agreement with an employee whom the employer, in good faith, determined engaged in sexual harassment or sexual assault.  AB 749 did not restrict the execution of a severance agreement that is unrelated to a claim filed by the employee against the employer.
• AB 2143, which took effect January 1, 2021, modified the provisions enacted by AB 749 to further clarify and expand when employers can include a “no-rehire” provision in separation or settlement agreements. Specifically, AB 2143 amended Code of Civil Procedure Section 1002.5 to also allow a “no-rehire” provision if the aggrieved party has engaged in “any criminal conduct.” AB 2143 also clarified that in order to include a “no-rehire” provision in a separation or settlement agreement, an employer must have made and documented a good-faith determination that such individual engaged in sexual harassment, sexual assault, or any criminal conduct before the aggrieved employee raised his or her claim.  Finally, AB 2143 also made clear that the restriction on “no-rehire” provisions set forth in Code of Civil Procedure Section 1002.5 applies only to employees whose claims were filed in “good faith.”

SB 331 – Key Changes

Against this legal backdrop, SB 331 has introduced additional restrictions that employers should keep in mind when entering into settlement or separation agreements with employees in California.

Settlement Agreements

Building on the protections included in SB 820, SB 331 expanded SB 820’s prohibition on provisions that prevent the disclosure of facts to include all facts related to all forms of harassment, discrimination, and retaliation—not just those related to sexual assault, sexual harassment, or sex discrimination.  Just as with SB 820, parties can agree to prevent the disclosure of the settlement payment amount, and the identity of the claimant can be protected where requested by the claimant.

Non-Disparagement Covenants and Separation Agreements

Consistent with SB 1300, SB 331 prohibits an employer from requiring an employee to agree to a non-disparagement agreement or other document limiting the disclosure of “information about unlawful acts in the workplace” in exchange for a raise or bonus, or as a condition of employment or continued employment.  SB 331 also prohibits an employer from including in any separation agreement with an employee or former employee any provision that prevents the disclosure of “information about unlawful acts in the workplace” which includes, but is not limited to, information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.

Effective January 1, 2022, any non-disparagement or other contractual provision that restricts an employee’s ability to disclose information related to conditions in the workplace must include, in substantial form, the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Finally, SB 331 also provides that any separation agreement with an employee or former employee related to an employee’s separation from employment that includes a release of claims must provide: (i) notice that the employee has the right to consult an attorney regarding the agreement and (ii) a reasonable time period of at least five (5) business days in which to consult with an attorney.  An employee may sign the agreement before the end of such reasonable time period so long as such employee’s decision is “knowing and voluntary” and is not induced by the employer through fraud, misrepresentation or a threat to withdraw or alter the offer prior to the expiration of such reasonable period of time or by providing different terms to the employees who sign such an agreement before the expiration of such time period.  The SB 331 requirements do not apply to a negotiated agreement to resolve an underlying claim filed by an employee in court, before an administrative agency, in arbitration, or through an employer’s internal complaint process.

Conclusion and Next Steps

SB 331 represents the latest step taken by California intended to protect employees’ rights by restraining employers from preventing the disclosure of information regarding certain workplace conditions.

When evaluating separation or severance agreement templates, employers should consider whether the agreements:

• Include language requiring that a settlement or severance amount be held in the strictest confidence by the employee or former employee.
• Have the latest amended Section 1542 language.
• Have the appropriate disclosures for any non-disparagement provisions.
• Provide employees with sufficient disclosures and time to consider the separation agreement.
• Include limitations on individuals which are now prohibited.

Employers should navigate these requirements with care.  Compliance with California’s multifaceted legal protections for employees and former employees will require careful drafting.  Employers should consider seeking the assistance of legal counsel to refresh templates prior to entering into settlement or separation agreements in California.

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The following Gibson Dunn attorneys assisted in preparing this client update: Tiffany Phan, Florentino Salazar, Sean Feller, Jason Schwartz, and Katherine V.A. Smith.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following:

Tiffany Phan – Los Angeles (+1 213-229-7522, tphan@gibsondunn.com)

Sean C. Feller – Co-Chair, Executive Compensation & Employee Benefits Group, Los Angeles
(+1 310-551-8746, sfeller@gibsondunn.com)

Jason C. Schwartz – Co-Chair, Labor & Employment Group, Washington, D.C.
(+1 202-955-8242, jschwartz@gibsondunn.com)

Katherine V.A. Smith – Co-Chair, Labor & Employment Group, Los Angeles
(+1 213-229-7107, ksmith@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Following an unprecedented year for UK regulated firms in 2020, the UK Financial Conduct Authority used 2021 to advance a number of regulatory initiatives. This client alert assesses the regulatory landscape through the lens of three notable regulatory “hot topics”: environment, social and governance (“ESG”) developments; fintech and cryptoassets; and individual accountability and conduct risks.

ESG developments

“ESG matters are high on the regulatory agenda. If the financial sector is going to help support the transition to a more sustainable future, market participants and financial services firms need high quality information, a well-functioning ecosystem and clear standards. And consumers need to be able to rely on firms to take ESG seriously, avoid ‘greenwashing’ and deliver on their ESG promises.”[1]

(1) Overview

Over the last five years, sustainable investing and sustainable finance have come to the fore on the global stage, primarily as a result of the climate crisis and the resulting net zero commitments increasingly being given around the world. It reflects an acknowledgement of the real financial impacts of climate change and broader ESG-related issues.

In 2021, in particular, the focus on ESG has become even more intense in the UK, which further cemented its ESG credentials through the hosting of the 2021 United Nations Climate Change Conference (known as COP26) in November.

(2) Developments in 2021

A number of significant steps have been taken by both the UK FCA and UK government in this regard. 2021 saw, amongst other things:

• the introduction of disclosure requirements aligned with the TCFD (or Taskforce on Climate-related Financial Disclosures) for all premium listed issuers (to be rolled out to a broader range of issuers);

• a UK FCA policy statement on enhancing climate-related disclosures by asset managers, life insurers and FCA-regulated pension providers, with first disclosures required by 30 June 2023;

• building on such work, proposals to introduce a UK “Green Taxonomy”, sustainability disclosure requirements for asset managers and FCA-regulated asset owners, as well as a comprehensive labelling system for sustainable investment products. The details of the UK Green Taxonomy and the sustainability disclosure requirements will closely track the EU’s Taxonomy Regulation[2] and the Sustainable Finance Disclosure Regulation[3] (“SFDR”) requirements; and

• in more than just a symbolic move, in mid-2021 the UK FCA welcomed its first “Director of ESG”, Sacha Sadan. Mr Sadan’s mandate is to embed ESG considerations across the UK FCA’s functions, in a “golden thread” approach.

The focus to-date has largely been to focus on the “E” rather than the “S” or “G”. For instance, the UK FCA consultation on TCFD-aligned disclosure rules for asset managers referred to above is much more geared towards climate. This is not exclusively the case, however. For example, the UK FCA sourcebook containing such rules will be entitled the “ESG” sourcebook and the UK FCA has specifically said that it “anticipate[s] that the ESG sourcebook will expand over time to include new rules and guidance on other climate-related and wider ESG topics”[4]. Additionally, for the purposes of the UK Green Taxonomy proposals, in order for an economic activity to qualify as being sustainable it must meet a number of criteria, including complying with minimum safeguards based on certain human rights standards.

Challenges firms face

Firms face a number of challenges including:

• operating multi-nationally and complying with different regulatory regimes;
• dealing with investor requirements; and
• supranational standards and disclosures.

It is clear that the current portfolio of proposals and initiatives is the starting place and not the finishing line.

(3) What to expect in 2022

The focus in the UK on ESG is by no means set to slow down. One such area in which there is encouragingly a lot of work being done is in attempting to bring some further clarity and coherence to ESG disclosures. On November 3, 2021, in recognition of international investors with global investment portfolios increasingly calling for high quality, transparent, reliable and comparable reporting by companies on climate and other ESG matters, the creation of a new standard setting board – the International Sustainability Standards Board – was announced.  This was broadly welcomed by the industry and regulators alike. Indeed, in a speech on the same day as the announcement, the UK FCA CEO, Nikhil Rathi went so far as to refer to this as a “game changer”, noting also that the UK FCA “will work with IOSCO and others to promote adoption of the new Board’s global baseline sustainability reporting standards”[5].

Another area in which we may well see development is in relation to ESG data providers.  As industry participants more fully integrate ESG into their activities and expand their ESG-focused product offerings, they are increasingly reliant on third-party ESG data services, as well as ESG ratings and benchmark indices. It is, therefore, increasingly important that these services are delivered in a fair, effective and transparent way. We are, therefore, likely to see proposals in relation to managing risks such as lack of transparency and manipulation coming out of supranational bodies such as IOSCO and also national legislators and regulators.

As the UK FCA explained in its ESG strategy statement[6], “[i]n the case of ESG ratings, different methodological choices result in a low correlation between different providers’ ratings. Consequently, without transparency of these methodologies, it may be difficult to interpret and compare outputs across providers, potentially leading to harms for consumers…it is important providers deliver ESG data and ratings transparently, and that they have strong governance and management of conflicts of interests. The Government is therefore considering bringing these firms into the scope of FCA authorisation and regulation”.  In another example of the UK FCA demonstrating awareness that it is important to find a global solution to a global problem, it has (in parallel) contributed to the International Organization of Securities Commissions’ work on ESG data and ratings.

Fintech and cryptoassets

“It will take a great deal of careful thought to craft a regulatory regime which will be effective in the decentralised world of digital tokens. And it’s clear that legislators need to consider 3 issues: how to make it harder for digital tokens to be used for financial crime; how to support useful innovation; and the extent to which consumers should be free to buy unregulated, purely speculative tokens and to take the responsibility for their decisions to do so.”(Charles Randell, Chair of the FCA and PSR, September 2021)[7]

(1) Overview

As a general matter, over the last year or so we have seen cryptoassets explode into the mainstream. Cryptoasset firms have expanded in geographical reach and “traditional” financial institutions have increased their exposure to this asset class. FCA research indicated that 2.3 million adults in the UK hold cryptoassets, up from 1.9 million in 2020.[8] The UK looks for the most part at cryptoassets through the lens of traditional financial instruments under the Financial Services and Markets Act. Essentially, cryptoassets will fall within the regulatory perimeter where they constitute securities (e.g. shares, debentures, etc.), certain derivatives or collective investment schemes.

The FCA has issued warnings regarding companies offering cryptocurrency services in the UK without being properly registered, and not meeting the required standards under money laundering regulations. From the enforcement perspective, like elsewhere in the world it is an aggressive enforcement environment for cryptoasset firms in the UK. The FCA is very active in protecting the so-called regulatory perimeter. We have also seen the FCA (like its EU counterparts) ban the sale of crypto derivatives to retail investors.

The approach being taken in the UK by the government is risk-based and so we have not seen proposals for a bespoke regulatory regime for cryptoassets for the UK although there have been a good many initiatives, including the proposal to expand the scope of the financial promotions regime to unregulated cryptoassets and a more recent proposal to bring certain stablecoins within the regulatory perimeter.

In the UK, and elsewhere internationally, there has been a focus on tackling anti-money laundering in the cryptoassets space. The UK and EU now have cryptoasset firm registration procedures derived from the Fifth Money Laundering Directive (“MLD5”). The FCA has been particularly focus on undertaking a robust review of an the AML framework of firms seeking MLD5 registration.

(2) Developments in 2020

There have been a number of UK regulatory developments concerning fintech and cryptoassets in 2021.

Bringing “stable tokens” within the FCA’s regulatory perimeter

In January 2021, HM Treasury published another consultation paper setting out proposals to bring “stable tokens” within the FCA’s regulatory perimeter. Stable tokens are defined as those tokens that stabilise their value by referencing one or more assets, such as fiat currency or a commodity and could, therefore more reliably be used as a means of exchange or store of value. This regime would bring both.

Expanding the financial promotions regime

HM Treasury is also consulting on proposals to expand the perimeter of the financial promotion regime to bring the promotion of certain types of unregulated cryptoassets within its scope. The HM Treasury proposals identify the unregulated cryptoassets that will be covered as “controlled investments” by introducing “qualifying cryptoasset” as a new category of controlled investment. the tokens and associated activities into regulation.

Kalifa Review

In 2021, we also saw the publication of the Kalifa Review of UK Fintech (the “Review”). The Review stated that the UK has the potential to be a leading global centre for the issuance, clearing, settlement, trading and exchange of crypto and digital assets. The Review called for a bespoke regime for cryptoassets should adopt a functional and technology-neutral approach, in line with the principles of the current regulatory framework, as well as the concept of “same risk, same regulation”, while being tailored to the risks arising from cryptoasset activities.

Law Commission digital assets project

The Law Commission has been asked by Government to make recommendations for reform to ensure that the law is capable of accommodating both cryptoassets and other digital assets in a way which allows the possibilities of this technology to flourish. The Law Commission published an interim update paper on its digital assets project on 24 November 2021. The Law Commission anticipates publishing its digital assets consultation paper in mid-2022.

Extension of the Temporary Registrations Regime

From a practical perspective, the FCA extended the end date of the Temporary Registrations Regime (“TRR”) for existing cryptoasset businesses from 9 July 2021 to 31 March 2022. The TRR was established in 2020 to allow existing cryptoasset firms that applied for registration before 16 December 2020, and whose applications are still being assessed, to continue trading. The FCA noted that a significant number of businesses were not meeting the required standards under the Money Laundering Regulations. The extended date allows cryptoasset firms to continue to carry on business while the FCA continues with its assessment.

(3) What to expect in 2022

We will see the proposed changes coming in, including expansion of the scope of the financial promotions regime to include cryptoassets currently outside the regulatory perimeter and bringing certain stablecoins inside the regulatory perimeter. However, we do not consider that that will be the end of the story. We fully expect that we will continue to see new laws and regulations in the UK which will respond to the regulatory risks posed by cryptoassets. The FCA is also likely to continue to be an aggressive regulator in this space, especially in areas of perceived highest risk: anti-money laundering and defending the regulatory perimeter in order to protect investors.

Individual accountability and conduct risks

“We want firms to be clear about what we expect from them, including from their governance and culture.” (FCA Business plan 2021/2022)

(1) Overview

The UK regulators recognise that each firm’s culture is different. However, they consider that it is the responsibility of everyone in financial services to focus on culture, and they expect senior management in firms to manage the drivers of behaviour in their firms to create and maintain cultures which reduce the potential for harm.

Firm’s cultures have been a major root cause of conduct failures, and the regulator’s work supporting firms in delivering real and sustainable culture transformations will help prevent harm caused by inappropriate behaviours. Conduct and culture are inextricably linked to senior management accountability. In the UK, the vast majority of regulated firms are now subject to the Senior Managers and Certification Regime.

(2) Developments in 2021

“The focus on points of failure not only encourages greater awareness, it also promotes better calculations of judgement”(Mark Steward, FCA Executive Director of Enforcement and Market Oversight)[9]

Non-financial misconduct

As we noted in 2020[10], the regulatory direction of travel has been to push firms to think more broadly in terms of what types of misconduct they need to tackle with an increased focus on non-financial misconduct and how this reflects the culture of the firm.

In September 2021, the FCA banned director Jon Frensham from performing any regulated activity for non-financial misconduct. The decision was notable as the Upper Tribunal found that Frensham’s conviction for child sexual offences was not sufficient on its own to justify the imposition of a prohibition, as the FCA had not established a sufficiently strong factual or legal basis linking the conviction itself Frensham’s lack of personal integrity as was relevant to his specific financial services role. However, the Upper Tribunal did uphold the FCA’s prohibition order on alternative, narrower grounds. In assessing whether non-financial misconduct is relevant to an assessment of fitness and propriety, the FCA will need to establish that this has an impact on and is relevant to its standards and statutory objectives.

Diversity and inclusion

“We will increasingly be asking tough questions firms about representation across grades and whether their culture is open and inclusive and provides a safe space for colleagues at all levels of the organisation” (Nikhil Rathi, FCA CEO, March 2021)[11]

The FCA has previously developed its “5 conduct questions”[12] expressly to help firms implement more effective change programmes as well as helping the FCA to interrogate progress. The 5 conduct questions are addressed to firms and require self-reflective answers. The FCA has expressly noted that it is considering adding a sixth question in its future work which will interrogate firms on diversity and inclusion, another telling indicator of culture. The FCA’s Business plan stated that the FCA takes diversity and inclusion seriously and expects regulated firms and market participants to do the same.

In July 2021, the Prudential Regulation Authority, the Bank of England and the FCA issued a joint discussion paper to engage financial firms and other stakeholders in a discussion on how to accelerate the pace of meaningful change on diversity and inclusion in the sector. The discussion paper contains a number of potential policy issues including: (1) setting targets for board composition and succession planning; (2) extending diversity and inclusions into the Senior Managers and Certification Regime; (3) linking diversity and inclusion progress to remuneration; (4) setting targets for senior management and employees more broadly; and (5) the introduction of disclosures relating to diversity and inclusion. The discussion paper also raised the issue of extending guidance on “non-financial misconduct” to make it clear that this concept includes sexual harassment, bullying and discrimination based on someone’s protected (or otherwise) characteristics. Taking into account feedback on the discussion paper, the PRA and FCA intend to consult on more detailed proposals in Q1 2022 followed by a policy statement in Q3 2022.

(3) What to expect in 2022

We expect the UK regulators to continue their focus on individual accountability and conduct risks in 2022.

Whilst this will be more of a progression on previous years than a new development we expect the UK regulators to really focus on how conduct and culture are reflected in the new ESG products being developed, and in the new fintech firms and products coming to prominence.

Firms can expect to be challenged on whether their ESG products really have good consumer outcomes at their heart.  Regulators are likely to really test governance systems to ensure firms can demonstrate commitment to products delivering on descriptions.

Similarly, firms involved in fintech or digital assets can expect to be targeted for supervisory or thematic visits as Regulators look to test whether the culture of firms is in line with regulatory expectations, and whether systems and controls offer enough comfort that consumers and the financial system as a whole will be adequately protected as new and innovative products are launched.

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[1] https://www.fca.org.uk/publications/corporate-documents/strategy-positive-change-our-esg-priorities

[2] Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment

[3] Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the financial services sector

[4] FCA CP21/17: Enhancing climate-related disclosures by asset managers, life insurers and FCA-regulated pension providers (June 2021), paragraph 1.5

[5] https://www.fca.org.uk/news/speeches/strategy-positive-sustainable-change

[6] https://www.fca.org.uk/publications/corporate-documents/strategy-positive-change-our-esg-priorities

[7] https://www.fca.org.uk/news/speeches/risks-token-regulation

[8] https://www.fca.org.uk/publications/research/research-note-cryptoasset-consumer-research-2021

[9] https://www.fca.org.uk/news/speeches/compliance-culture-and-evolving-regulatory-expectations-mark-steward

[10] https://www.gibsondunn.com/the-challenge-of-addressing-non-financial-misconduct-in-uk-regulated-firms/

[11] https://www.fca.org.uk/news/speeches/why-diversity-and-inclusion-are-regulatory-issues

[12] https://www.fca.org.uk/firms/5-conduct-questions-programme

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Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments.  If you wish to discuss any of the matters set out above, please contact the Gibson Dunn lawyer with whom you usually work, any member of Gibson Dunn’s Global Financial Regulatory team, or the following authors in London:

Michelle M. Kirschner (+44 (0) 20 7071 4212, mkirschner@gibsondunn.com)
Matthew Nunan (+44 (0) 20 7071 4201, mnunan@gibsondunn.com)
Martin Coombes (+44 (0) 20 7071 4258, mcoombes@gibsondunn.com)
Chris Hickey (+44 (0) 20 7071 4265, chickey@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Introduction

On 12 January 2022, the Hong Kong Monetary Authority (HKMA) released a Discussion Paper on the expansion of the Hong Kong regulatory framework to stablecoins (e.g. crypto-assets pegged to fiat currencies). The Paper considers the adequacy of the existing regulatory framework in light of the growing use of stablecoins and other types of crypto-assets in financial markets, and the challenges posed by this increase in their prevalence. It further poses eight questions for consideration by the industry, including the scope of a proposed new regulatory regime to cover what the HKMA describes as “payment-related stablecoins”.

This client alert provides an overview of the HKMA’s views on crypto-assets and stablecoins as outlined in the Paper, discusses the implications for players in the stablecoin ecosystem if the proposed changes are implemented, and suggested next steps for interested parties.

The HKMA has requested responses to the Paper by 31 March 2022, and has indicated that it intends to introduce this new stablecoin regulatory regime by 2023-2024.

HKMA’s views on crypto-assets and financial stability

The Paper provides a valuable insight into the HKMA’s views on crypto-assets in general, and stablecoins in particular, including their linkages to the traditional financial system and ramifications on financial stability.

In introducing its proposal to regulate payment related stablecoins, the HKMA has made it clear that while the current size and trading activity of crypto-assets globally may not pose an immediate threat to the stability of the global financial system from a systemic point of view, it does consider the increasing prevalence of crypto-assets to have the potential to impact financial stability. In particular, the HKMA has flagged that it considers the growing exposure of institutional investors, as well as certain segments of the retail public, to such assets as an alternative to, or to complement traditional asset classes, indicates growing interconnectedness with the mainstream financial system.

Further, as noted by the HKMA, it understands that while Hong Kong authorised banks (Authorised Institutions or AIs) currently undertake only limited activities in relation to crypto-assets, AIs are interested in pursuing these activities further, given that they face increasing demand from customers for crypto-related products and services. This is consistent with what we understand is a steady increase in high net wealth investors hungry for yield demanding access to crypto-assets through their private wealth managers, as well as an uptick in demand from retail investors in Hong Kong eager for the same exposure to upside. To this end, the HKMA has flagged that it will soon provide AIs with more detailed regulatory guidance in relation to their interface with and provision of services to customers in relation to crypto-assets.

Finally, the HKMA has also noted its concerns that the ease of anonymous transfer of crypto-assets may make them susceptible to the risk of illicit and money laundering / terrorist financing activities.

The HKMA’s views on stablecoins

The Paper also flags the HKMA’s view that stablecoins are increasingly viewed as a ‘widely acceptable means of payment’ and that this, alongside the actual increase in their use, has increased the potential for their incorporation into the mainstream financial system. In the HKMA’s opinion, this in turn raises broader monetary and financial stability implications and has resulted in the regulation of stablecoins becoming a key priority for the HKMA, which has stated in the Paper that it wishes to ensure that such coins “are appropriately regulated before they operate in Hong Kong or are marketed to the public of Hong Kong”.

The Paper goes on to identify a number of potential risks that may arise in relation to the use of stablecoins, including, in summary:

• Payment integrity risks where stablecoins are commonly accepted as a means of payment and operational disruptions or failures occur in relation to the stablecoins;
• Banking stability risks if banks were to increase their exposure to stablecoins, particularly if stablecoins were viewed as a substitute for bank deposits;
• Monetary policy risks in relation to the issue and redemption of HKD-backed stablecoins, which could affect interbank HKD demand and supply; and
• User protection risks where a user may have no or limited recourse in relation to operational disruptions or failures of a stablecoin.

Given these potential risks, the HKMA has stated in the Paper that it considers it appropriate to expand the regulatory perimeter to cover payment-related stablecoins in the first instance, although it has not ruled out the possibility of regulating other forms of stablecoins as well.

The HKMA’s discussion questions for industry consideration

The HKMA has noted in the Paper that it considers ‘the need to regulate [stablecoins] is well justified and the tool to regulate…[can] be decided at a later stage’. However, it has indicated that it wishes for feedback from the industry and the public on the scope of the regulatory regime applicable to stablecoins, and to this end has set out eight discussion questions for industry consideration. A summary of the key questions posed by the HKMA, as well as the HKMA’s views on those questions, is set out below.

Question 1: Should we regulate activities relating to all types of stablecoins or give priority to those payment-related stablecoins that pose higher risks to the monetary and financial systems while providing flexibility in the regime to make adjustments to the scope of stablecoins that may be subject to regulation as needed in the future?

In posing this question, the HKMA has noted that it intends to take a risk-based approach focused initially on payment-related stablecoins at this stage given their predominance in the market and higher potential to be incorporated into the mainstream financial market (as discussed above). However, the HKMA has noted that it intends to ensure that whatever regime is introduced is sufficiently flexible that it could extend to other types of stablecoins in the future. As such, issuers and traders of other types of stablecoins should not expect to avoid regulatory scrutiny forever.

Question 2: What types of stablecoin-related activities should fall under the regulatory ambit, e.g. issuance and redemption, custody and administration, reserves management?

The HKMA has proposed regulating a broad range of stablecoin-related activities, including:

• Issuing, creating or destroying stablecoins;
• Managing reserve assets to ensure stabilisation of stablecoin value;
• Validating transactions and records;
• Storing private keys used to provide access to stablecoins;
• Facilitating the redemption of stablecoins;
• Transmission of funds to settle transactions; and
• Executing transactions in stablecoins.

This broad list is based on a list of activities in relation to stablecoins published by the Financial Stability Board[1] and as such may be viewed as in keeping with international standards. However, as discussed below in relation to Question 5, the breadth of this regime may raise concerns regarding the degree of overlap between this regime and others proposed by Hong Kong regulators, including the proposed VASP regime to be administered by the Securities and Futures Commission (SFC) (see our alert here).

Question 3: What kind of authorisation and regulatory requirements would be envisaged for those entities subject to the new licensing regime?

The HMKA has suggested that it considers that entities subject to the new stablecoin licensing regime would be subject to the following requirements:

• authorisation and prudential requirements, including adequate financial resources and liquidity requirements;
• fit and proper requirements in relation to both management and ownership;
• requirements relating to the maintenance and management of reserves of backing assets; and systems; and
• controls, governance and risk management requirements.

Further, given that it is common for multiple entities to be involved in different parts of a stablecoin arrangement, the HKMA has noted that such entities could be subject to part or all of the requirements, depending on the services they offer.

If requirements in relation to these matters are ultimately implemented by the HKMA, the stablecoin regime would cover some of the requirements of the proposed VASP regime, with the exception of requirements of reserves of backing assets, which will presumably only be applied to stablecoins given their nature.

Question 4: What is the intended coverage as to who needs a licence under the intended regulatory regime?

The HKMA has signalled that it believes that only entities incorporated in Hong Kong and holding a relevant licence granted by HKMA should carry out regulated activities, to enable the HKMA to exercise effective regulation on the relevant entities. As such, it has stated in the Paper that it expects that foreign companies / groups which intend to provide regulated activities in Hong Kong or actively market those activities in Hong Kong to incorporate a company in Hong Kong and apply for a licence to the HKMA under this regime.

If implemented, this would have significant ramifications for those global crypto-exchanges currently offering trading in stablecoins to Hong Kong users from offshore. These businesses would be faced with a choice between either incorporating in Hong Kong and seeking a licence, or discontinuing their trading for Hong Kong users.

Question 5: When will this new, risk-based regime on stablecoins be established, and would there be regulatory overlap with other financial regulatory regimes in Hong Kong, including but not limited to the SFC’s VASP regime, and the SVF licensing regime of the PSSVFO?

The HKMA has stated that it will collaborate and coordinate with other financial regulators when defining the scope of its oversight and will seek to avoid regulatory arbitrage, including in relation to areas which ‘may be subject to regulation by more than one local financial authority’.

However, an HKMA-administered regime of the breadth proposed above would create a situation in which an exchange undertaking transactions in non-stablecoin crypto-assets would be regulated by the SFC under its proposed new VASP regime while being regulated by both the SFC and the HKMA under its stablecoin regime. In this respect, we note that the proposed definition of ‘virtual asset’ under the proposed new VASP regime ‘applies equally to virtual coins that are stable (i.e. the so-called “stablecoins”)’.[2] While the HKMA and SFC share regulatory responsibility for Registered Institutions (i.e. Authorised Institutions which are separately licensed by the SFC to undertake securities and futures business), that shared regulatory responsibility concerns distinctly different types of activities. In contrast, we consider that from an exchange’s perspective, the act of executing transactions in stablecoins is substantially similar to executing transactions in non-stablecoin crypto-assets. As such, this approach may lead to unnecessary and undesirable regulatory inefficiencies if exchanges are required to be licensed under both the SFC and HKMA regimes to undertake transactions in crypto-assets.

Question 6: Stablecoins could be subject to run and become potential substitutes of bank deposits. Should the HKMA require stablecoin issuers to be AIs under the Banking Ordinance, similar to the recommendations in the Report on Stablecoins issued by the US President’s Working Group on Financial Markets?

While not expressly stating that it will not require stablecoin issuers to be regulated as AIs under the Banking Ordinance, the HKMA has indicated that it expects that the requirements applicable to stablecoin issuers will instead borrow from Hong Kong’s current regulatory framework for stored value facilities (SVF). However, the HKMA has signalled that certain stablecoin issuers may be subject to higher prudential requirements than SVF issuers where they issue stablecoins of systemic importance.

Question 7: [Does] the HKMA also have plan[s] to regulate unbacked crypto-assets given their growing linkage with the mainstream financial system and risk to financial stability?

The HKMA has not expressly ruled out regulating unbacked crypto-assets, and has stated that it is necessary to continue monitoring the risks posed by this asset class. In stating this, the HKMA has also pointed to the VASP regime, suggesting that the HKMA’s approach to this area is likely to depend on the success of that regime once implemented.

Question 8: For current or prospective parties and entities in the stablecoins ecosystem, what should they do before the HKMA’s regulatory regime is introduced?

The HKMA has advised current and prospective players in the stablecoin ecosystem to provide feedback on the proposals set out in the Discussion Paper, and has noted that in the interim, it will continue to supervise AIs’ activities in relation to crypto-assets and implement the SVF licensing regime pending implementation of this new regime.

Conclusion

The Discussion Paper provides a valuable insight into the HKMA’s plans for the future of stablecoin regulation in Hong Kong. While some concerns exist as to the potential overlap between the HKMA’s new proposed regime and the SFC’s VASP regime, it is clear that the HKMA intends to ensure that it is regarded as the primary regulator of stablecoins going forward, and that it sees the regulation of this asset class as closely linked to its key objective of ensuring financial stability.

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   [1]   See Financial Stability Board, Regulation, Supervision and Oversight of “Global Stablecoin” Arrangements: Final Report and High-Level Recommendations, https://www.fsb.org/wp-content/uploads/P131020-3.pdf, page 10.

   [2]   See Financial Services and the Treasury Bureau, Public Consultation on Legislative Proposals to Enhance Anti-Money Laundering and Counter-Terrorist Financing Regulation in Hong Kong (Consultation Conclusions), https://www.fstb.gov.hk/fsb/en/publication/consult/doc/consult_conclu_amlo_e.pdf, paragraph 2.8.

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Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments.  If you wish to discuss any of the matters set out above, please contact any member of Gibson Dunn’s Crypto Taskforce (cryptotaskforce@gibsondunn.com) or the Global Financial Regulatory team, including the following authors in Hong Kong:

William R. Hallatt (+852 2214 3836, whallatt@gibsondunn.com)
Emily Rumble (+852 2214 3839, erumble@gibsondunn.com)
Arnold Pun (+852 2214 3838, apun@gibsondunn.com)
Becky Chung (+852 2214 3837, bchung@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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On December 23, 2021, President Biden signed the Uyghur Forced Labor Prevention Act (the “UFLPA” or “Act”) into law.[1] The UFLPA, which received widespread bipartisan support in Congress, is the latest in a line of U.S. efforts to address the plight of Uyghurs and other persecuted minority groups in China’s Xinjiang Uyghur Autonomous Region (the “XUAR”).

A key feature of the Act is the creation of a rebuttable presumption that all goods manufactured even partially in the XUAR are the product of forced labor and therefore not entitled to entry at U.S. ports. The Act also builds on prior legislation, such as 2020’s Uyghur Human Rights Policy Act,[2] by expanding that Act’s authorization of sanctions to cover foreign individuals responsible for human rights abuses related to forced labor.

I. Background

In recent years, both the executive and legislative branches have demonstrated an increased interest in “lead[ing] the international community in ending forced labor practices wherever such practices occur,”[3] with a particular focus on the XUAR.

2020 saw a boom in efforts across agencies and the houses of Congress, beginning with the Department of Homeland Security’s January publication of a Department-wide strategy to combat forced labor in supply chains.[4] Later that year, DHS joined the U.S. Departments of State, Treasury and Commerce to issue a joint advisory warning of heightened risks of forced labor for businesses with supply chain exposure to the XUAR.[5]

The U.S. also emphasized eliminating forced labor in supply chains through its international obligations at this time. The 2020 United States-Mexico-Canada Agreement (“USMCA”) required each party to this free trade agreement to “prohibit the importation of goods into its territory from other sources produced in whole or in part by forced or compulsory labor.”[6] To carry out this obligation, President Trump issued an executive order in May 2020 establishing the Forced Labor Enforcement Task Force (“FLETF”), chaired by the Secretary of Homeland Security and including representatives from the Departments of State, Treasury, Justice, Labor, and the Office of the U.S. Trade Representative.[7] The implementing bill of the USMCA requires the FLETF to serve as the central hub for the U.S. government’s enforcement of the prohibition on imports made through forced labor.[8]

In Congress, Rep. James McGovern (D) and Sen. Marco Rubio (R) — co-chairs of the Congressional-Executive Commission on China — introduced the first versions of the UFLPA in the House of Representatives[9] and the Senate[10] in March 2020. The bill received unusual, wide bipartisan support, with co-sponsors among Congress’s most conservative and most liberal members.[11] Each bill passed in its respective house in early 2021, and a compromise bill — reconciling differences of timing and reporting processes between the two versions — was sent to the President in mid-December[12] before being signed into law.

II. Presumptive Ban on Imports from the XUAR

The UFLPA’s trade provisions are notable both for their expansive scope and the heightened evidentiary standard required to rebut the Act’s presumptive prohibition on all imports from the XUAR.

a. Scope of the Import Ban

The UFLPA’s scope is broad, instructing U.S. Customs and Border Protection (“CBP”) to presume that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in” the XUAR were made with forced labor and are therefore unfit for entry at any U.S. ports.[13]

This presumption extends also to goods, wares, articles, and merchandise produced by a variety of entities identified by the FLETF in its strategy to implement the Act. This includes entities that work with the XUAR government to recruit, transport, or receive forced labor from the XUAR,[14] as well as entities that participate in “poverty alleviation” and “pairing-assistance” programs[15] in the XUAR.[16]

CBP has traditionally had the authority to prevent the importation of “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by . . . forced labor” through the issuance of Withhold Release Orders (“WROs”).[17] The UFLPA broadens this power by creating a rebuttable presumption that all articles produced in whole or in part in the XUAR or by entities that source material from persons involved in XUAR government forced labor schemes are automatically barred from entry into the United States, even absent a WRO or any specific showing of forced labor in the supply chain.

b. Exceptions to the Import Ban

Despite this broad prohibition, importers of goods covered by the UFLPA may still be able to rebut the presumption against importation. The Act specifies that the presumption will not be applied if the Commissioner of CBP determines that:

1. The importer of record has:
   • Fully complied with all due diligence and evidentiary guidance established by the FLETF pursuant to the Act, along with any associated implementing regulations; and
   • Completely and substantively responded to all CBP inquiries seeking to ascertain whether the goods were produced with forced labor; and
2. “Clear and convincing” evidence shows that the goods were not produced wholly or in part with forced labor.[18]

Each time the Commissioner determines that an exception to the import ban is warranted under the criteria above, the Commissioner must submit a report to Congress within 30 days, identifying the goods subject to the exception and the evidence upon which the determination is based.[19] The Commissioner must make all such reports available to the public.[20]

III. High-Priority Enforcement Sectors

As part of its enforcement strategy, the UFLPA instructs the Forced Labor Enforcement Task Force to prepare both a list of high-priority sectors subject to CBP enforcement, and a sector-specific enforcement plan for each of these high-priority sectors.[21] The Act mandates that cotton, tomatoes, and polysilicon must be among the high-priority sectors, building upon CBP’s existing WRO against all cotton and tomato products produced in the XUAR.[22]

The addition of polysilicon on this list of high-priority sectors directly impacts the U.S. solar energy industry: nearly half of the world’s polysilicon — a key material for the manufacture of solar panels — is produced in the XUAR.[23] Despite the dominance of Chinese polysilicon, however, solar industry groups have embraced the passage of the UFLPA and are encouraging solar companies to move their supply chains out of the XUAR.[24] Corporate responsibility concerns surrounding the sourcing of polysilicon from the XUAR have been circulating for at least a year, and the solar industry groups have acted proactively to create standards and procedures to trace and audit supply chains of this important resource. To further this industry-wide goal of eradicating forced labor from solar supply chains,[25] these industry groups recently published a “Solar Supply Chain Traceability Protocol.”[26]

IV. Sanctions

The UFLPA also amends the Uyghur Human Rights Policy Act of 2020 to underscore that sanctions may be imposed due to “[s]erious human rights abuses in connection with forced labor” related to the XUAR. Within 180 days of enactment, the President is required to submit an initial report to Congress identifying non-U.S. persons subject to sanctions under this new provision.[27] The sanctioned individuals will be subject to asset blocking, as provided under the International Emergency Economic Powers Act,[28] as well as the revocation or denial of visas to enter the United States. The President must submit additional reports at least annually identifying non-U.S. persons responsible for human rights violations in the XUAR, including with respect to forced labor, as provided under the Uyghur Human Rights Policy Act.[29]

V. Compliance Takeaways

a. Establishing “Clear and Convincing” Evidence

The Act does not specify what types of evidence might suffice to establish by clear and convincing evidence that goods are not the product of forced labor. Instead, the Act charges the FLETF with publishing an enforcement strategy containing, among other things, “[g]uidance to importers with respect to . . . the type, nature, and extent of evidence that demonstrates that goods originating in the People’s Republic of China . . . were not mined, produced, or manufactured wholly or in part with forced labor.”[30]

While the Act does not clarify what evidence would be necessary to meet the “clear and convincing” standard, CBP has issued guidance regarding the detailed evidence importers may need to provide to obtain the release of goods detained pursuant to certain WROs. A similar high bar of documentation — if not higher — will likely be required under the UFLPA. In addition to the required Certificate of Origin and importer’s detailed statement,[31] CBP has highlighted the following forms of evidence as helpful to importers seeking the release of shipments detained pursuant to a WRO:

• An affidavit from the provider of the product;
• Purchase orders, invoices, and proof of payment;
• A list of production steps and records for the imported merchandise;
• Transportation documents;
• Daily manufacturing process reports;
• Evidence regarding the importer’s anti-forced labor compliance program; and
• Any other relevant information that the importer believes may show that the shipments are not subject to the import ban.[32]

The exact contours of any guidance to be issued by the Forced Labor Enforcement Task Force remains uncertain. However, companies with supply chain exposure to the XUAR should expect compliance with the UFLPA to require significant supply chain diligence and documentation obligations. These obligations may exceed the already high benchmarks on diligence established by the FLETF and CBP through years of sustained engagement with non-governmental organizations and other standard-setting stakeholders who are focused on eradicating forced labor from supply chains globally.

b. Due Diligence

The Act instructs the FLETF to issue guidance on “due diligence, effective supply chain tracing, and supply chain management measures” aimed at avoiding the importation of goods produced with forced labor in the XUAR within 180 days of the UFLPA’s enactment.[33]

Until the FLETF issues this guidance, companies importing goods into the U.S. should look to recognized international standards to conduct due diligence of their supply chains to identify potential ties to the XUAR. For example, the “Xinjiang Supply Chain Business Advisory” identifies the following standards as providing useful guidance on best practices for this due diligence:[34] the UN Guiding Principles on Business and Human Rights,[35] the OECD Guidelines on Multinational Enterprises,[36] and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy.[37] The Advisory warns, however, that third-party audits alone cannot guarantee credible information for due diligence purposes, both because of official harassment of auditors and because of workers’ fear of reprisals for speaking to these auditors.[38] To combat this information gap, the Advisory encourages businesses to collaborate within industry groups to share information and build relationships with Chinese suppliers.[39]

The unique circumstances of the forced labor crisis in the XUAR may render due diligence efforts insufficient, however. In 2020, the Congressional-Executive Commission on China warned that “due diligence in Xinjiang is not possible” because of official repression and harsh reprisals against whistle blowers, which is made possible by extensive state surveillance in the XUAR.[40] (Notably, this warning coincided with the introduction of the first versions of the bills that would later become the UFLPA.) Moreover, China enacted a series of “blocking statutes” in 2021 authorizing, inter alia, countersanctions and civil liability for Chinese nationals who comply with attempts to enforce foreign laws extraterritorially in China.[41] This threat of liability, coupled with the already-existing reprisals, limits the ability of companies to obtain reliable information about their supply chain activity in the XUAR.

VI. Timeline for Enforcement

The Act’s rebuttable presumption against the importation of goods produced in the XUAR or by entities identified by the FLETF is set to take effect 180 days after the UFLPA’s enactment, on June 21, 2022.

The Act provides that the process for developing the enforcement strategy will proceed as follows:

1. Within 30 days of enactment (by Jan. 22, 2022): The FLETF will publish a notice soliciting public comment on how best to ensure that goods mined or produced with forced labor in China — and particularly in the XUAR — are not imported into the United States.[42]
2. No less than 45 days after notice is given (by Mar. 8, 2022): The public, including private sector businesses and non-governmental organizations, will submit comments in response to the FLETF’s notice.[43]
3. Within 45 days of the public comment period closing (by Apr. 22, 2022): The FLETF will hold a public hearing, inviting witnesses to testify regarding measures that can be taken to trace supply chains for goods mined or produced in whole or in part with forced labor in China and to ensure that goods made with forced labor do not enter the United States.[44]
4. No later than 180 days after enactment (June 21, 2022): The FLETF, in consultation with the Secretary of Commerce and the Director of National Intelligence, must submit to Congress a strategy for supporting CBP’s processes for enforcing the Act. This strategy must include guidance to importers regarding due diligence and supply chain tracing, as well as the nature and extent of evidence required to show that goods originating in China were not mined or produced with forced labor.The Forced Labor Enforcement Task Force must thereafter submit an updated strategy to Congress annually.[45]

Notably, the FLETF’s enforcement strategy need only be submitted by the day the Act’s rebuttable presumption takes effect. Therefore, importers may have little or no advance notice as to what evidence they must submit to rebut the presumption against importation.

VII. Global Efforts to Address Forced Labor in the XUAR

The U.S. is far from the only country targeting forced labor through new executive and legislative actions. In the past year, jurisdictions around the globe have developed a variety of new strategies for eliminating the importation of goods produced with forced labor in the XUAR. These global efforts vary in scope, and many have not yet taken effect. Companies with supply chain exposure to the XUAR should, however, prepare for an increasingly complex international regulatory landscape in coming years.

a. The European Union (“EU”)

On September 15, 2021, the European Commission (“EC”) President Ursula von der Leyen announced plans for a ban on products made by forced labor to be proposed in 2022.[46] While the XUAR was not named, the proposed measure has been viewed to directly target forced labor in this region.[47] Recent reports, however, have highlighted disagreements within the EC as to which department is to spearhead the proposal due to trade sensitivities.[48] Therefore, little progress has been made. Most recently, in December 2021, the EU Executive Vice-President for Trade, Valdis Dombrovskis, warned the EC of the risks of a ban targeting only forced labor in the XUAR being deemed as “discriminatory”. He further noted that the UFLPA “cannot be automatically replicated in the EU,”[49] and argued instead that including the ban within the EU’s proposed Sustainable Corporate Governance Directive (“SCG Directive”) would be more effective.[50]

The EU has sought to address forced labor more generally via its proposal — in the form of the SCG Directive — for EU-based companies to undertake mandatory human rights due diligence to increase their accountability for human rights and environmental abuses in their supply chains. After lengthy delays, the EC’s proposal for the SCG Directive is now due in early 2022.[51]

At the moment, it remains unclear whether the EU will follow the U.S. in imposing a stand-alone ban on imports from the XUAR, or whether the proposed measures will be weakened by incorporating them into the SCG Directive proposal.

b. United Kingdom

The U.K. does not currently have legislation equivalent to the UFLPA. However, officials within the Foreign Office and the Department for International Trade have suggested that similar efforts to address imports made with forced labor in the XUAR may be imminent.[52] These efforts would build on the U.K.’s ongoing “review of export controls as they apply to Xinjiang . . . to prevent the exports of goods that may contribute to human rights abuses in the region.”[53]

c. Canada

In coordination with the United Kingdom and other international partners, the Canadian government released a statement in January 2021 addressing its concerns with the situation in the XUAR. The government announced that it would adopt a number of measures to combat the alleged human rights violations in the XUAR, including:[54]

1. Prohibition on Imports of Goods Produced by Forced Labor: On November 24, 2021, Sen. Housakos introduced Bill S-204, an act to amend the “Customs Tariff (goods from Xinjiang).”[55] Currently at the second reading stage in the Canadian Senate, this bill is intended to prevent the importation of goods believed to be produced through forced labor.[56] Consistent with Canada’s obligations under the USMCA, this prohibition would prevent the importation of goods believed to be produced using forced labor in the XUAR.
2. Xinjiang Integrity Declaration for Canadian Companies: Following the amendments made to the Customs Tariff, the Canadian Government established an Integrity Declaration on Doing Business with Xinjiang Entities to guide Canadian companies’ business practices in the region. The Integrity Declaration is mandatory for all Canadian companies that (i) source goods, directly or indirectly, from the XUAR or from entities that rely on Uyghur, (ii) are established in the XUAR, or (iii) seek to engage in the XUAR market. If any such company fails to sign the Integrity Declaration, they will be ineligible to receive support from the Trade Commissioner Service.[57]
3. Export Controls: The Canadian government stated that it will deny export licenses for the exportation of goods or technologies if it determines that there is a substantial risk that the export would result in a serious violation of human rights under the Export and Import Permits Act 1985.[58]

d. Australia

In June 2021, Sen. Patrick introduced the Customs Amendment (Banning Goods Produced by Forced Labour) Bill 2021 to the Australian Senate. The introduction of this bill follows the growing concerns in Australia that the Australian Modern Slavery Act 2018 does not adequately address the issue of state-sanctioned forced labor. Rather limited in its scope, the Modern Slavery Act 2018 requires certain companies to submit annual statements reporting on the risks of modern slavery in their operations and supply chains, as well as any steps they are taking to address such risks. Other entities based or operating in Australia may report this information voluntarily.[59]

Sen. Patrick’s bill would go a step further in combatting state-sanctioned forced labor by amending the Customs Act 1901 to prohibit the importation into Australia of goods that are produced in whole or in part by forced labor.[60] Although the bill makes no specific reference to China, human rights abuses in the XUAR were repeatedly cited as the proposal’s impetus during the Senate debate. Moreover, if passed, the bill would have the effect of banning the importation of goods made with Uyghur forced labor.[61] The bill was passed through the Australian Senate with cross-party support and the endorsement of the Australian Council of Trade Unions. The bill must now pass the House of Representatives to become law.[62]

e. New Zealand

New Zealand has taken a notably softer stance than the U.S. Although New Zealand’s parliament unanimously declared in May 2021 that severe human rights abuses against the Uyghur ethnic minority group were taking place in the XUAR, the motion merely expressed the parliament’s ‘grave concern’[63] over these human rights abuses. The Uyghur community in New Zealand have requested for parliament to take stronger action, such as declaring the oppression of Uyghurs in China a ‘genocide’ and placing a ban on the importation of products made by forced labor in the XUAR.[64]

_________________________

   [1]   Pub. L. 117-78 (2021).

   [2]   Pub. L. 116-145 (2020).

   [3]   Pub. L. 117-78, § 1(2) (2021).

   [4]   Department of Homeland Security Strategy to Combat Human Trafficking, the Importation of Goods Produced with Forced Labor, and Child Sexual Exploitation (Jan. 2020), U.S. DEPARTMENT OF HOMELAND SECURITY, https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf.

   [5]   Xinjiang Supply Chain Business Advisory (Jul. 2, 2020, updated Jul. 13, 2021), U.S. Department of the Treasury, https://home.treasury.gov/system/files/126/20210713_xinjiang_advisory_0.pdf.

   [6]   United States-Mexico-Canada Agreement art. 23.6, Jul. 1, 2020, available at https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement.

   [7]   Exec. Order No. 13923, 85 Fed. Reg. 30587 (2020).

   [8]   19 U.S.C. § 4681 (2020).

   [9]   Uyghur Forced Labor Prevention Act, H.R. 6210, 116th Cong. (2019–2020).

  [10]   Uyghur Forced Labor Prevention Act, S. 3471, 116th Cong. (2019–2020).

  [11]   Id. (House bill’s co-sponsors included Dan Crenshaw, Rashida Tlaib, and Ilhan Omar.). Uyghur Forced Labor Prevention Act, S. 3471, 116th Cong. (2019–2020). (Senate bill’s co-sponsors included Tom Cotton, Marsha Blackburn, Dick Durbin, and Elizabeth Warren.).

  [12]   Zachary Basu, House unanimously passes Uyghur forced labor bill, Axios (Dec. 15, 2021), https://www.axios.com/congress-uyghur-forced-labor-bill-d4699c95-16ea-4b42-bda4-eb5baa29326a.html.

  [13]   Pub. L. 117-78 § 3(a) (2021).

  [14]   Id. at § 2(d)(2)(B)(ii).

  [15]   The PRC government has established large-scale “mutual pairing assistance” programs, wherein companies from other provinces of China are incentivized to open satellite factories in the XUAR. See Xinjiang Supply Chain Business Advisory, supra note 5 at 6. The State Department has raised concerns that pairing-assistance programs and other poverty alleviation measures have served as a cover for forced labor and the transfer of Uyghurs and other persecuted minorities to other parts of the country. Forced Labor in China’s Xinjiang Region: Fact Sheet, U.S. Department of State (Jul. 1, 2020), available at https://www.state.gov/forced-labor-in-chinas-xinjiang-region/.

  [16]   Pub. L. 117-78 § 2(d)(2)(B)(v) (2021).

  [17]   19 U.S.C. § 1307.

  [18]   Pub. L. 117-78 § 3(b) (2021).

  [19]   Id. at § 3(c).

  [20]   Id.

  [21]   Id. at § 2(d)(2)(B)(viii)–(ix).

  [22]   CBP Issues Region-Wide Withhold Release Order on Products Made by Slave Labor in Xinjiang, U.S. Customs and Border Protection (Jan. 13, 2021), https://www.cbp.gov/newsroom/national-media-release/cbp-issues-region-wide-withhold-release-order-products-made-slave.

  [23]   China Renewables: The Stretched Ethics of Solar Panels from Xinjiang, The Financial Times (Jan. 9, 2022), available at https://on.ft.com/3ndq1NE.

  [24]   Press Release, Solar Industry Statement on the Passage of the Uyghur Forced Labor Prevention Act, Solar Energy Industries Association (Dec. 16, 2021), available at https://www.seia.org/news/solar-industry-statement-passage-uyghur-forced-labor-prevention-act.

  [25]   Solar Industry Forced Labor Prevention Pledge, Solar Energy Industries Association (Nov. 23, 2021), available at https://www.seia.org/sites/default/files/Solar%20Industry%20Forced%20Labor%20Prevention%20Pledge%20Signatories.pdf.

  [26]   Solar Supply Chain Traceability Protocol 1.0: Industry Guidance, Solar Energy Industries Association (Apr. 2021), available at https://www.seia.org/sites/default/files/2021-04/SEIA-Supply-Chain-Traceability-Protocol-v1.0-April2021.pdf.

  [27]   Pub. L. 116-145 § 6(a)(1) (2020).

  [28]   50 U.S.C. 1701 § 5(c)(1)(A) (1977).

  [29]   Pub. L. 116-145 § 6(a)(1) (2020).

  [30]   Pub. L. 117-78 § 2(d)(6) (2021).

  [31]   19 C.F.R. § 12.43 (2017).

  [32]   See Hoshine Silicon Industry Co. Ltd Withhold Release Order Frequently Asked Questions, U.S. Customs and Border Protection (Nov. 10, 2021), https://www.cbp.gov/trade/programs-administration/forced-labor/hoshine-silicon-industry-co-ltd-withhold-release-order-frequently-asked-questions.

  [33]   Pub. L. 117-78 § 2(d)(6)(a) (2021).

  [34]   Xinjiang Supply Chain Business Advisory, supra note 5 at 7–8.

  [35]   Guiding Principles on Business and Human Rights, Office of the United Nations High Commissioner for Human Rights (2011), available at https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

  [36]   OECD Guidelines for Multinational Enterprises, Organisation for Economic Co-operation and Development (2011), available at https://www.oecd.org/daf/inv/mne/48004323.pdf.

  [37]   Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, International Labour Organization (2017), available at https://www.ilo.org/wcmsp5/groups/public/—ed_emp/—emp_ent/—multi/documents/publication/wcms_094386.pdf.

  [38]   Xinjiang Supply Chain Business Advisory, supra note 5 at 9.

  [39]   Id.

  [40]   Staff of Cong.-Exec. Comm’n on China, Global Supply Chains, Forced Labor, and the Xinjiang Uyghur Autonomous Region (2020), https://www.cecc.gov/sites/chinacommission.house.gov/files/documents/CECC%20Staff%20Report%20March%202020%20-%20Global%20Supply%20Chains%2C%20Forced%20Labor%2C%20and%20the%20Xinjiang%20Uyghur%20Autonomous%20Region.pdf.

  [41]   See MOFCOM Order No. 1 of 2021 on Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, People’s Republic of China Ministry of Commerce (Jan. 9, 2021), available at http://english.mofcom.gov.cn/article/policyrelease/announcement/202101/20210103029708.shtml.

  [42]   Pub. L. 117-78 § 2(a)(1) (2021).

  [43]   Id. at § 2(a)(2).

  [44]   Id. at § 2(b)(1).

  [45]   Id. at § 2(c)–(e).

  [46]   2021 State of the Union Address by President von der Leyen, European Commission (Sep. 15, 2021), available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_21_4701.

  [47]   Coalition Statement on European Commission’s Proposed Ban on Products Made with Forced Labour, End Uyghur Forced Labour (Sep. 21, 2021), available at https://enduyghurforcedlabour.org/news/coalition-statement-on-european-commissions-proposed-ban-on-products-made-with-forced-labour/.

  [48]   Sarah Anne Aarup, Ban on Uyghur imports becomes EU’s hot potato, Politico (Oct. 15, 2021), https://www.politico.eu/article/uyghur-china-europe-ban-imports-europe-trade-hot-potato-forced-labor/; Mehreen Kahn, EU urges caution on any ban on imports made with forced labour, The Financial Times (Dec. 23, 2021), https://www.ft.com/content/748a837b-ac51-4f2e-9a5d-3af780ec8444.

  [49]   EU urges caution on any forced labor import ban, The Washington City Times (Dec. 23, 2021), https://thewashingtoncitytimes.com/2021/12/23/eu-urges-caution-on-any-forced-labor-import-ban/.

  [50]   Id.

  [51]   Legislative Proposal on Sustainable Corporate Governance, European Parliament, Legislative Train (Dec. 17, 2021), https://www.europarl.europa.eu/legislative-train/theme-an-economy-that-works-for-people/file-legislative-proposal-on-sustainable-corporate-governance; see also Sustainable Corporate Governance, About this initiative, European Commission, available at https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12548-Sustainable-corporate-governance_en.

  [52]   See Emilia Casalicchio, UK hints at banning Chinese imports with forced labor links, Politico (Dec. 20, 2021), https://www.politico.eu/article/uk-could-impose-chinese-forced-labor-import-ban/.

  [53]   Press Release, UK Government announces business measures over Xinjiang human rights abuses, U.K. Government (Jan. 12, 2021) (U.K.), https://www.gov.uk/government/news/uk-government-announces-business-measures-over-xinjiang-human-rights-abuses; see also Fifth Special Report, Never Again: The UK’s Responsibility to Act on Atrocities in Xinjiang and Beyond: Government’s Response to the Committee’s Second Report, U.K. Parliament (Nov. 1, 2021) (U.K.), available at https://publications.parliament.uk/pa/cm5802/cmselect/cmfaff/840/84002.htm.

[54]  Canada Announces New Measures to Address Human Rights Abuses in Xinjiang, China, Government of Canada (2021) (Can.), available at https://www.canada.ca/en/global-affairs/news/2021/01/canada-announces-new-measures-to-address-human-rights-abuses-in-xinjiang-china.html.

[55]  See s-204 An Act to amend the Customs Tariff (goods from Xinjiang), Parliament of Canada (Can.) (2021) https://www.parl.ca/legisinfo/en/bill/44-1/s-204.

[56]  Integrity Declaration on Doing Business with Xinjiang Entities, Government of Canada (2021) (Can.), available at https://www.international.gc.ca/global-affairs-affaires-mondiales/news-nouvelles/2021/2021-01-12-xinjiang-declaration.aspx?lang=eng.

[57]  Id.

[58]  Global Affairs Canada advisory on doing business with Xinjiang-related entities, Government of Canada (2021) (Can.), available at https://www.international.gc.ca/global-affairs-affaires-mondiales/news-nouvelles/2021/2021-01-12-xinjiang-advisory-avis.aspx?lang=eng.

[59]  See Modern Slavery Act 2018, Federal Register of Legislation (Austl.), https://www.legislation.gov.au/Details/C2018A00153.

[60]  See Customs Amendment (Banning Goods Produced by Forced Labour) Bill 2021 (Austl.), https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1307

[61]  Daniel Hurst, Australia Senate passes bill banning Imports made using Forced Labour, The Guardian, (Aug. 23, 2021), https://www.theguardian.com/australia-news/2021/aug/23/australian-senate-poised-to-pass-bill-banning-imports-made-using-forced-labour.

[62]  Australian Senate Passes Forced Labour Bill, Freedom United (Aug. 23, 2021), https://www.freedomunited.org/news/australian-senate-passes-forced-labor-bill/.

[63]  China slams New Zealand parliament’s motion on Uighur abuses, Al Jazeera (May 6, 2021), https://www.aljazeera.com/news/2021/5/6/china-slams-new-zealand-parliaments-uighur-concerns.

[64]  Julia Hollingsworth, New Zealand is a Five Eyes outlier on China. It may have to pick a side, CNN (June 4, 2021), https://edition.cnn.com/2021/06/03/asia/new-zealand-xinjiang-china-intl-hnk-dst/index.html.

 

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The following Gibson Dunn lawyers assisted in preparing this client update: Judith Alison Lee, Selina Sagayam, Susanne Bullock, Michael Murphy and Christopher Timura, with Sean Brennan, Ruby Taylor, Natalie Harris, and Freddie Batho, recent law graduates working in the firm’s London and Washington, D.C. offices who are not yet admitted to practice law.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the above developments. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s International Trade practice group:

United States:
Judith Alison Lee – Co-Chair, International Trade Practice, Washington, D.C. (+1 202-887-3591, jalee@gibsondunn.com)
Ronald Kirk – Co-Chair, International Trade Practice, Dallas (+1 214-698-3295, rkirk@gibsondunn.com)
Jose W. Fernandez – New York (+1 212-351-2376, jfernandez@gibsondunn.com)
Nicola T. Hanna – Los Angeles (+1 213-229-7269, nhanna@gibsondunn.com)
Marcellus A. McRae – Los Angeles (+1 213-229-7675, mmcrae@gibsondunn.com)
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Decided January 13, 2022

National Federation of Independent Business v. Occupational Safety and Health Administration, No. 21A244; and

Ohio v. Occupational Safety and Health Administration, No. 21A247

On Thursday, January 13, 2022, by a 6–3 vote, the Supreme Court prevented the implementation of an OSHA rule that would have imposed a vaccine-or-testing regime on employers with 100 or more employees.

Background:

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) governing employers with 100 or more employees. The ETS mandated covered employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers” that require unvaccinated employees to undergo weekly COVID-19 testing and to wear a mask during the workday.

Business groups and States filed petitions for review of the ETS in each regional Court of Appeals, contending that OSHA exceeded its statutory authority under the Occupational Safety and Health Act. The Fifth Circuit stayed the ETS and later held that the OSHA mandate was overly broad, not justified by a “grave” danger from COVID-19, and constitutionally dubious. After all petitions for review were consolidated in the Sixth Circuit, that court dissolved the Fifth Circuit’s stay. The panel majority held that COVID-19 was an emergency warranting an ETS and that OSHA had likely acted within its statutory authority.

Issue:

Whether to stay implementation of the vaccine-or-testing mandate pending the outcome of litigation challenging OSHA’s statutory authority to require employers with 100 or more employees to develop, adopt, and enforce a vaccine-and-testing regime for their employees.

Court’s Holding:

The vaccine-or-testing mandate should be stayed because OSHA likely lacks the statutory authority to adopt the vaccine-or-test mandate in the absence of an unmistakable delegation from Congress.

“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”

Per Curiam Opinion of the Court

What It Means:

• The Court’s decision prevents the implementation of the OSHA mandate, which applies to 84 million Americans.  Echoing its recent decision in Alabama Ass’n of Realtors v. Dep’t of Health & Human Services, the Court emphasized that agency action with such “vast economic and political significance” requires a clear delegation from Congress.  It is doubtful that the stay will be lifted to allow OSHA to enforce the mandate before the ETS expires in May, meaning that it is unlikely employers will ever actually be subject to the ETS’s vaccine-or-testing mandate.
• The challengers had argued that covered employers would incur unrecoverable compliance costs and that employees would quit rather than comply.  The federal government, for its part, had argued that the OSHA mandate would save over 6,500 lives and prevent hundreds of thousands of hospitalizations.  The Court stayed the mandate without resolving this dispute on the ground that only Congress could properly weigh such tradeoffs.
• The Court’s decision to hear oral argument on the stay applications may signal the beginning of a trend, as this is the second time this Term that the Court moved an application to vacate a stay from the emergency docket to the argument calendar.
• Other Mandates:  The Court stayed lower court injunctions against the vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”).  See Biden v. Missouri, 21A240; Becerra v. Louisiana, 21A241.  By a 5–4 vote, the Court ruled that the Secretary of Health and Human Services likely has the statutory authority to require vaccination for healthcare workers at facilities that participate in Medicare and Medicaid.  Today’s decisions do not address the federal contractor vaccine mandate that is presently enjoined on a nationwide basis by a federal district court in Georgia. Four other federal district courts also have enjoined the government from enforcing that mandate. So far, the Sixth and Eleventh Circuits have refused to stay the injunctions against the federal contractor mandate pending appeal.

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The Court’s opinions are available here and here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice leaders:

Appellate and Constitutional Law Practice

Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Mark A. Perry +1 202.887.3667 mperry@gibsondunn.com	Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com
Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com

Related Practice: Labor and Employment:

Eugene Scalia +1 202.955.8543 escalia@gibsondunn.com	Jessica Brown +1 303.298.5944 jbrown@gibsondunn.com	Jason C. Schwartz +1 202.955.8242 jschwartz@gibsondunn.com
Katherine V.A. Smith +1 213.229.7107 ksmith@gibsondunn.com

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Once more, 2021 demonstrated that constant change should become your friend and ally. After a second year of global uncertainty caused by the formidable challenges of the COVID-pandemic, we all long for a return “back-to-normal.” However, chances are that 2022 will continue to present drastic and unpredictable challenges.

Let us start with the consequences of the pandemic that are already visible: Instead of bringing the world together to fight the global challenge, each country has chosen its own approach, ranging from very restrictive policies with modest vaccination rates such as in China to an approach that strives to push vaccination rates to the maximum in order to stay open for business such as in Israel.

The pandemic has also brought back big government: State-imposed restrictions significantly impact our private lives and the business community. Hundreds of billions of dollars have been disseminated to mitigate the effect of the crisis, all managed through state aid or state subsidies. Further do’s and don’ts are imposed by the national sanctions regimes which have become the new weapon of choice in the battle for economic and military supremacy.

As if this was not enough, at a time when Government budgets have exploded and corporate debt levels are at historic peaks in various countries, inflation – a term forgotten for almost a generation – made a spectacular comeback. While experts still disagree whether this is an episode or a trend, the economy and private consumers are already suffering from rising asset prices, and it would seem only a matter of time until the party of cheap and easy money will be a thing of the past.

You still want more? Add some autocratic and eternal state leaders to the mix (China, Russia, Belarus), a few more instable countries striving to achieve nuclear arms capacities (Iran, North Korea), countries plagued by armed conflict (Afghanistan, Iraq), then raise the world’s temperature levels by two or more degrees through climate change, and you might be heading for the kind of explosive cocktail that could make your nightmares come true.

As lawyers, nonetheless, we truly believe that change is our friend. We consider ourselves agents of change: In our Corporate Transactions and related practices, we help transform the corporate world through acquisitions, mergers and disposals. Our Data Privacy & Technology practices explore the boundaries of new technologies whilst protecting vulnerable data and our Regulatory practices and litigators help shape the legal and regulatory landscape that will become the level playing field for tomorrow’s businesses.

We must resist the sort of short-term fears that others might justifiably feel in light of all the threats around us. We also are well-advised to fight any complacency that comes with decades of peace and prosperity that most of us have enjoyed until now.

We embrace the opportunities of change and seek to influence developments that will make the world a better and fairer place, through good lawyering of positions that we believe are proper and just, by facilitating the transition from one technological era to another, but also through our many pro bono efforts that focus on other important matters that fall outside of the scope of big business or big law, and we fight for cases and causes which could easily be forgotten without pro-bono efforts.

With this in mind, we have again prepared this year’s legal update on German law developments, which are equally reflective of significant changes: The advent of a new coalition government under Chancellor Olaf Scholz inaugurated on December 8, 2021 after sixteen years of Angela Merkel’s tenure, the fundamental change of the German economy to a more climate friendly industry, and the awakening to long forgotten security threats posed by Russia and other aggressive autocracies and kleptocracies.

As one of the largest economies in the world, Germany cannot and should not stay passive and wait for others to shape the future. Therefore, embrace the legal changes we present below as a sign of things to come and as good faith efforts to shape the future in times of great uncertainty. Amidst all the change and the many challenges we face, some things remain as they were, however. We have therefore again focused our topical updates on three questions: What’s new? Why is it relevant? What’s next?

We hope you will find this update helpful in all your dealings with Germany next year and beyond. We are grateful for all the opportunities you gave us in the past year to work with you to solve your most important and sensitive issues. We look forward to continue changing the world together with you in the years to come. 

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Table of Contents

1.  Corporate, M&A

2.  Tax

3.  Financing & Restructuring

4.  Labor and Employment

5.  Compliance & White Collar

6.  Data Privacy & Technology

7.  Antitrust & Merger Control

8.  Litigation

9.  International Trade / Sanctions

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1.      Corporate, M&A

1.1       Recent Reform of the Legal Framework for Civil Law Partnerships and other Commercial Partnerships

On June 25, 2021, the German legislator adopted the Act on the Modernization of the Law on Partnerships (Gesetz zur Modernisierung des Personengesellschaftsrechts – MoPeG). While the new law will only enter into force on January 1, 2024, this reform will result in a number of changes which civil law partnerships (Gesellschaft Bürgerlichen Rechts, GbR – “Civil Partnership”) and their partners, but also other forms of commercial partnerships and their partners, ought to be aware of in order to be prepared for the new legal regime.

Consequently, we highlight below a number of selected changes which we would consider to be of particular interest for general industrial players but also for real estate investors who often choose to operate via partnership structures in Germany:

a) Registration of Civil Partnerships

Under the new law, Civil Partnerships will have the option, and in some cases the need, to seek registration in a newly introduced company register (Gesellschaftsregister) maintained by the local courts (Amtsgerichte). Such registration in the public commercial register (Handelsregister) is already mandatory for both (i) corporations such as the GmbH (private limited liability company) or the AG (stock corporation), as well as (ii) commercial partnerships such as the OHG (commercial open partnership with only personally liable partners) or the KG (limited partnership).

This new company register will be particularly relevant for Civil Partnerships that own real estate because their registration in the new company register will be mandatory after January 1, 2024, the current grace period, as soon as there are any legal changes triggering registration in any of the existing registers (e.g. encumbrances or changes in real estate ownership in the land register (Grundbuch)).

Newly incorporated Civil Partnerships who acquire real estate will always require registration in the new company register after the entry into force of the MoPeG based on the above rationale.

Similarly, the position of a Civil Partnership as a shareholder of a limited liability company or as a named shareholder (Namensaktionär) in a stock corporation will trigger the need for registration in the new company register for the Civil Partnership.

If registered, Civil Partnerships must use the abbreviation “eGbR” (eingetragene Gesellschaft bürgerlichen Rechts – Registered Civil Partnership). The registration in the new company register will also increase the level of information available to the public on such registered Civil Partnerships significantly: The filing for registration will have to contain full personal or corporate details of all partners, the details of their representation powers and a confirmation that the relevant partnership is not yet registered in the commercial register or the partnership register (Partnerschaftsregister).

In particular in real estate transactions, where the use of Civil Partnerships is relatively common, such increased transparency on the particulars of the partners and their representation powers will be welcome.

Finally, the registration of a Civil Partnership in the new company register will also result in the need for its partners to disclose information on the registered Civil Partnership’s ultimate beneficial owners in or to the German transparency register (Transparenzregister).

b) Confirmation of Permanence of the Seat of Partnership

The MoPeG brought another welcome and long overdue clarification: The new law clarifies that all German partnerships have their corporate seat either at the place where their business is actually conducted (Verwaltungssitz) or – in case of both registered Civil Law Partnerships and commercial partnerships – at a contractually fixed place in Germany (Vertragssitz), irrespective of the place where the relevant partnership’s business is actually conducted.

Due to the specifics of German partnership law, there had always been some doubt over whether commercial partnerships, which are registered as such in the existing German commercial register, might lose their status as German commercial partnerships (and thus potentially their liability limitations) if they are managed entirely from abroad because they are deemed to no longer be German-based. This statutory confirmation of the permanence of a partnership’s chosen seat means that this dogmatic discussion is now settled. German corporate law remains applicable to partnerships for as long as their chosen contractual seat remains in Germany, irrespective of the factual place where managerial decisions are taken. Consequently, limited partnerships with foreign partners or managed from abroad no longer have to fear that such foreign management may invalidate or otherwise question their limitation of liability under German law. Going forward, the German partnerships concerned are thus free to operate predominantly or entirely abroad.

c) Qualification under the German Conversion Act (Umwandlungsgesetz, UmwG)

The reform also clarifies that Civil Partnerships can in the future be transformed into other corporate formats or merged into other entities by way of universal legal succession. One requirement for such conversion will, however, be a prior registration of the Civil Partnership in question in the new company register.

d) Key Changes for Commercial Partnerships

The reform also introduces certain changes that apply to commercial open partnerships or limited partnerships in Germany. Chief among them are increased information rights for limited partners, new rules on the determination and distribution of profits to the partners and provisions on the taking of partner resolutions and the consequences of defective partner resolutions.

e) Outlook

Existing Civil Partnerships should familiarize themselves with the reform with a view to (i) identifying any necessary or opportune amendments to their partnership agreements and (ii) potential issues related to a future registration in the respective company register. They should assess whether their business activities are of a nature that makes registration either opportune or legally required.

The changes to the law for commercial partnerships may, at first sight, appear less fundamental or far-reaching. Nevertheless, the interim period until December 31, 2023 should also be used to ascertain to which extent existing partnership agreements may need to be revised to either reflect some or all of these changes or to opt out of the new law that might otherwise apply.

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1.2       Did Brexit Spell the End for UK Limited Companies in Germany?

Once the UK opted to leave the European Union, the continued existence and legal qualification of British private limited companies with an administrative seat in Germany became the subject of intense legal speculation and debate: Would German courts continue to afford such UK companies the protection of the EU Company Law Directive (Directive (EU) 2017/1132 – the “Company Law Directive”) and the freedom of establishment (Art. 49, 54 AUEV) or would they default back to the “corporate domicile theory” (Sitztheorie) for UK companies in the way they do for other non-EU companies that are not governed by relevant bilateral treaties?

On February 16, 2021, the German Federal Supreme Court (Bundesgerichtshof, BGH) (no. II ZB 25/17) ruled on the above question for the first time and held that the Company Law Directive and the freedom of establishment (Art. 49, 54 AUEV) will no longer apply to a UK limited company as a result of Brexit. The BGH’s judgment suggests that the court will continue to apply the traditional German corporate domicile theory to non-Member States and that it now considers the United Kingdom a non-Member State. Accordingly, the choice of the applicable company law for companies from a non-Member State depends, from a German law perspective, on the administrative seat of the company. In other words, German law will apply to UK companies with a German administrative seat.

It then follows that UK companies with a German administrative seat would, due to their lack of compliance with the incorporation formalities applicable to German corporations, regularly be reclassified either as a German civil law partnership (GbR) or as a commercial open partnership when operating a commercial enterprise (OHG). The partners in both of these partnerships are generally faced with unlimited personal liability. The resulting risks arising from such a corporate reclassification for the owners of UK limited companies which are active in the German market are obvious.

UK limited companies with elements of their decision making powers or administrative headquarters in Germany are thus well advised to restructure their company to avoid personal liability risks for the limited company’s shareholders. The required measures may include (i) a transfer of the effective administrative seat to the United Kingdom, (ii) the transfer of the business operations of the UK Limited to another new or existing German limited liability company (i.e. GmbH) or a German entrepreneurial company with limited liability (UG haftungsbeschränkt) by way of asset deal or (iii) under certain specific circumstances, a cross-border merger of the relevant UK Limited into a limited liability company of one of the other EU Member States.

Which one of the above options is the most suitable approach for any given company must be thoroughly considered in each case and will also depend on tax considerations and/or the business in which the respective company trades in.

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1.3       Further Revision of the German Foreign Direct Investment Law – An Ongoing Exercise?

As already predicted in Section 1.3 of our 2020 German Year-End Alert, 2021 saw another significant expansion of the scope of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung, AWV) by incorporating 16 new business sectors into the cross-sectoral review that are considered critical. In addition to the sectors already included in the AWV, a mandatory filing is now also required if a German M&A transaction target operates in one of these new sectors and the investor intends to acquire more than 20% (compared to 10% applicable to the “old” sectors) of its voting rights. These newly introduced sectors include satellite systems, artificial intelligence, robots, autonomous driving/unmanned aircrafts, quantum mechanics, and critical materials and broadly reflects the sectors mentioned in the EU Screening Regulation. The total number of “critical sectors” which require a mandatory filing has now increased to 27.

The revision also extended the sector-specific review (in particular with respect to defense-related activities). This is relevant to all non-German investors, even if they are located in the EU/EFTA. The following are now included: (i) all products of Part I Section A of the German Export List including their modification and handling, (ii) military goods/technologies that are based on restricted patents or utility models and (iii) defense-critical facilities.

In addition to expanding the scope of the foreign direct investment (“FDI”) review, the 2021 AWV revisions led to certain procedural changes and clarifications, including the following:

• Additional mandatory filings are required, if the investor acquires additional voting rights and exceeds certain thresholds (e.g., 25%, 40%, 50% and 75%, in case of the initial threshold of 20%, or 20%, 25%, 40%, 50% and 75% in case of the initial threshold of 10%).
• The application for a certificate of non-objection (Unbedenklichkeitsbescheinigung) is not available if the transaction is subject to mandatory filing requirements.
• The German Ministry for Economic Affairs (BMWi) may review transactions falling below the relevant voting rights threshold, if so-called atypical control rights are granted to the investor (e.g. granting the investor an additional board seat or veto rights and/or access to particular information). This, however, does not trigger a mandatory filing requirement but allows the BMWi to investigate the transaction ex officio for five years post-signing.
• Individual investors may be considered as acting together in certain acquisition structures involving purchasers from the same country.

Since April 2020, the German FDI regime faced three substantial revisions, which led to a significant increase in case load for the BMWi. Many EU Member States have implemented or amended their FDI regimes in light of the EU Screening Regulation and the EU cooperation mechanism. This has led to a solid information flow between the European Commission and the EU Member States. Investors are therefore well-advised to conduct a multi-jurisdictional FDI analysis as early as possible in the M&A process. The risk of potentially severe legal consequences for gun jumping (including imprisonment) requires a thorough advance assessment.

For further details please refer to our client alert on the topic from May 2021.

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1.4       German Transparency Register: Expiry of Transition Periods for Registration of Beneficial Ownership Information

Effective as of August 1, 2021, the German transparency register, which was introduced in 2017 as part of EU measures to combat money laundering and terrorist financing, has finally been upgraded to a genuine public register for information on a beneficial owner. A beneficial owner is an individual (natürliche Person) who directly or indirectly owns or controls more than 25 per cent of the share capital or voting rights in the relevant entity.

Previously it was not a requirement to file beneficial ownership information with the German transparency register if the information was already available in electronic form in other public German registers – for example through shareholder lists retrievable from the commercial register or because the registered managing directors of the German subsidiary were deemed to be beneficial owners absent individuals controlling the parent. Now all legal entities (juristische Personen) and registered partnerships under German private law are required to file beneficial ownership information for registration with the German transparency register. If there is no beneficial owner, the legal representatives, managing shareholders or partners must be registered with the German transparency register as deemed beneficial owners, irrespective of their registration in another German public register.

The (staggered) transition periods for entities that had to file for the first time due to the new rules will expire (i) on March 31, 2022 (for stock corporations (Aktiengesellschaft, AG), European stock corporations (Societas Europaea, SE) and partnerships limited by shares (Kommanditgesellschaft auf Aktien, KGaA)), (ii) June 30, 2022 (for limited liability companies (Gesellschaft mit beschränkter Haftung, GmbH), cooperatives (Genossenschaften), European cooperatives (europäische Genossenschaften) and partnerships (Partnerschaftsgesellschaften)) and (iii) December 31, 2022 (for all other legal entities and registered partnerships). Although there is a further leniency period of one year following the aforementioned filing deadlines, in which no administrative fines shall be imposed on the relevant entities, international groups in particular should confirm with their German operations to ensure a timely filing of the required beneficial ownership information with the transparency register. It is important to bear in mind that the above transition periods do not apply in case the change occurs after August 1, 2021: Accordingly, any new managing directors deemed to be beneficial owners should also be registered immediately in the transparency register to avoid an administrative fine.

Finally, in this context it is also important to note that since August 1, 2021, the obligations of foreign entities and trustees residing or headquartered outside of the EU to file beneficial ownership information for registration in the German transparency register have been significantly expanded. In particular, if German real property is involved in a transaction, the rules now not only capture asset deals but also direct and indirect share deals. These new filing obligations should be taken into due consideration by all companies planning to – directly or indirectly – acquire real property in Germany in 2022 in order to avoid any unexpected delays of the transaction due to missing filings.

For a more detailed analysis we refer to our specific client alert on the topic in June 2021.

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1.5       New Requirements for the Corporate Governance and External Audit of Listed German Companies in the Aftermath of the Wirecard Scandal

As a reaction to the seismic shake of public confidence in the effectiveness of the internal and external governance and control systems of German public companies following the spectacular collapse of German Dax listed Wirecard, the German legislature has adopted the Act on Strengthening the Financial Market Integrity (Finanzmarktintegritätsgesetzt – FISG). The FISG entered into force on July 1, 2021. This law establishes a number of new requirements designed to enhance the corporate governance and external audit of listed German companies as well as other public-interest companies which clients would be well advised to familiarize themselves with as some of them may necessitate changes to the constitutional documents of the affected listed German companies and other public-interest companies.

For a more detailed analysis of these changes, please see our client alert on the topic in June 2021 and Section 1.2 in last year’s German Year-End Alert.

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1.6       ESG – What’s Next? The Delayed EU Initiative on Sustainable Corporate Governance

Sustainability and social responsibility are continuously attracting awareness and gaining in importance. One encounters these issues in a wide variety of areas, from everyday errands such as grocery shopping to complex processes such as corporate governance. The current legislative initiative on Sustainable Corporate Governance (2020/2137 INI of the European Commission, the “Initiative”) by the European Commission is aimed at ensuring that companies focus on long-term sustainable value creation rather than short-term benefits and would be subject to a broader set of policies under the EU Green Deal.

The Commission was originally set to adopt the Initiative in December 2021. After public consultation was completed in early 2021, and after an initial delay due to the rejection of the underlying impact study by the EU Regulatory Scrutiny Board, pressure has increased on the Commission to act soon. On December 8, 2021, an open letter signed by 47 civil society and trade union organizations was sent to the President of the European Commission, Ursula von der Leyen. Publication of the proposed legislation is now expected for early 2022.

According to the inception impact assessment (a project plan setting out the elements for new legislation) by the Commission, the Initiative is expected to impose a combination of the following corporate and directors’ duties with a view to requiring (i) companies to adhere to the “do no harm” principle and (ii) directors to integrate a wider range of sustainability interests, such as climate, environment and human rights, into their business decisions:

• Due diligence duty: The due diligence duty for companies operating in the EU would require them to “take measures to address their adverse sustainability impacts, such as climate change, environmental, human rights […] harm in their own operations and in their value chain by identifying and preventing relevant risks and mitigating negative impacts” to identify and prevent relevant risks for climate, environment and human rights; and
• Duty of care: The duty for company directors would oblige them to take into account stakeholders’ interests “which are relevant for the long-term sustainability of the firm or which belong to those affected by it ([such as] employees, environment, other stakeholders affected by the business)”. Companies’ strategies under these requirements would need to be implemented “through proper risk management and impact mitigation procedures”.

It remains to be seen how and to what extent the Commission will implement these plans. Especially the suggested duty of care for management was met with criticism from Nordic countries such as Denmark, Finland, Estonia and others.

In Germany, ESG is – at least, to a certain degree – already part of corporate law: Certain disclosure obligations contained in the German Commercial Code (Handelsgesetzbuch, HGB), which originated from the EU Corporate Social Responsibility Directive, and the new German Act on Corporate Due Diligence in Supply Chains (Lieferkettensorgalfspflichtengesetz, LkSG), which will come into effect in 2023 (regarding the LkSG see below section 5.2), are two such examples. Furthermore, the – non-binding – German Corporate Governance Code (Deutscher Corporate Governance Kodex) covers the issue of sustainability and states that companies have ethical, environmental and social responsibilities for their employees, stakeholders and the community, deviating from the narrow shareholder value towards the broader stakeholder value principle.

The political trends in Germany point towards increased support for an initiative on social corporate governance: the 2021 coalition agreement of the newly elected German government between the Social Democratic Party (SPD), the Green Party (Bündnis 90/Die Grünen) and the Liberal Democratic Party (FDP) has placed strong emphasis on sustainability (the word appears more than 100 times in the 170-page agreement) and the protection of the environment. The document expressly states support for a “Corporate Sustainability Reporting Directive”.

Given the suggested scope of the Initiative, companies should be prepared to take not only economic, but also environmental and social responsibility along the entire value chain seriously and implement respective processes throughout their operations. For example, in order to comply with the proposed due diligence duty and the duty of care, companies would likely be required to adapt newly tailored decision-making processes, taking into account aspects such as sustainable corporate governance, climate protection, resource conservation, data responsibility, human rights, integrity and compliance, supply chain and corporate citizenship.

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2.     Tax

2.1       Tax Policy Program of the New Coalition

In the coalition agreement presented on November 24, 2021, the incoming government coalition of the Social Democratic Party (SPD), the Green Party (Bündnis 90/Die Grünen) and the Liberal Democratic Party (FDP) presented a tax policy program for the new governmental legislative period.

The program sets out the guidelines and statements of intent for the future tax policy for the next four years, but does not include any detailed or concrete tax law changes. Contrary to what had been announced by the SPD and the Green Party before the election, under the new tax policy program no wealth tax or increase in inheritance tax are anticipated. In addition to minor improvements to the offsetting of losses and to the preferential tax treatment for retained earnings, the coalition announced an obligation to report purely national tax arrangements for companies with sales of more than EUR 10 million. Under current law, a reporting obligation only exists for tax arrangements in cross-border transactions (known as DAC 6 reporting).

Other measures worthy of mention include the addition of an unspecified “interest rate cap” to the interest barrier rule, the expansion of withholding taxation, in particular, through the amendment of double taxation agreements, a renewed legislative amendment of real estate transfer tax in case of share deals, the intensification of the fight against tax evasion, money laundering and tax avoidance, and active support for the introduction of a global minimum taxation under the OECD initiatives.

With the coalition agreement, the coalition made it clear that there is no intention to reduce or increase corporate income tax, the solidarity surcharge or the income tax rate for individuals. Further details are currently unclear and reserved for future legislative initiatives.

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2.2       Revision of the Anti-Treaty Shopping Rule

For the third time in recent years, the European Court of Justice (case C-440/17) has ruled that the German Anti-Treaty Shopping provisions are not in compliance with EU law. The Anti Treaty Shopping provisions are relevant for cross boarder payment of, inter alia, dividends, interest and royalties where the parties of such payments rely on reduced withholding tax rates on such payments under an applicable double taxation treaty.

With effect for all open cases the German legislator amended the existing Anti-Treaty Shopping provisions on June 2, 2021 and implemented a two-step approach and the possibility to rebut any presumption of treaty abuse. The two step approach consists of a shareholder and an activity test. Under the shareholder test (look-through approach) treaty abuse would be presumed where the shareholder of a foreign entity that receives the cross-border payments would not be entitled to the same benefits claimed by the foreign entity if the shareholder of that entity received the payments directly. Under the activity test a foreign entity would not be entitled to treaty benefits if the source of its income subject to withholding tax does not have a material link or connection with the foreign entity’s own activity. A simple pass through of income to shareholders or activities that lack physical substance do not qualify as sufficient economic activity. If both tests fail, the presumption of treaty abuse can be rebutted if it can be proven that none of the main reasons for interposing the foreign entity was to obtain a tax advantage.

The new rule results in a significant tightening of the conditions to benefit from a reduced withholding tax rate under an applicable double taxation treaty. The shareholder test to be passed would effectively be limited to shareholders that are resident in the same country as the foreign entity that receives the payment. The preconditions for the activity test are still unclear and require further guidance by the tax authorities. The main purpose exception, under which “none of the main reasons” for the interposition of an entity was to obtain a tax advantage is not limited to withholding tax considerations, or even to German tax considerations, which significantly limits the ability to successfully rely on the rebuttal exception.

Foreign investors with income from German sources should review their structures to determine whether reduced withholding tax rates under an applicable double taxation treaty can still be claimed under the amended rules.

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2.3       New German Check-the-Box Rules

In Germany, corporate entities are subject to corporate income tax and local trade tax. The combined tax load typically ranges between 30% and 33%. Partnerships are subject to trade tax in the same way as corporate entities. However, as partnerships are treated as transparent for income tax purposes, profits of a partnership are automatically deemed to be distributed to the partners and are subject to the income tax rate that may be applicable at the level of an individual partner of up to 45%. Profits of a corporation are taxed at shareholder level only upon dividend distribution, which – in contrast to partnerships – has a tax deferral effect at shareholder level until a distribution is made.

To mitigate such unequal tax treatment, the new check-the-box rules allow for an option for partnerships to be taxed as corporate entities. The election would have to be made before the beginning of the fiscal year for which the election becomes valid. For legal purposes, the partnership would still be treated as a partnership. The election to be treated as a corporate entity for income tax purposes would need to be made by the partnership with approval from all partners (unless the partnership agreement provides for a 75% majority). After the election, the relationship between the partners in the partnership would be governed by the rules regarding the relationship between a corporate entity and its shareholders, i.e., the taxation of dividends and deemed dividends (including withholding tax consequences) would need to be considered.

An election needs to be clearly analyzed in order not to trigger other negative tax consequences. An election may lead to a forfeiture of net operating losses at partnership level and may trigger real estate transfer tax for past reorganizations. Non-EU limited partners may suffer capital gains tax upon election and, even if a capital gains tax upon election is avoided, there would be a seven year holding period for shares after the election becomes effective.

Due to the possible negative side effects of such election, it remains to be seen whether the new check-the-box rules will be a successful tax planning alternative for partnerships in the future.

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3.      Financing & Restructuring

3.1       LIBOR Cessation: Impact on Existing Loan Agreements

In most European financings, when calculating interest rates for floating rate loans or other instruments, the interest rate has historically been made up of (i) a margin element, and (ii) an inter-bank offered rate (IBOR). Most prominent IBORs used in European financings are USD LIBOR and LIBOR for loans denominated in USD and GBP, respectively, and EURIBOR for euro-denominated loans. In the aftermath of the LIBOR scandal that surfaced in the year 2016 and the manipulation of this rate by certain market participants, regulators have decided to discontinue and replace such rates by alternative risk-free rates. While IBOR reference rates are determined on the basis of quotations provided by a small group of market participants of their expected refinancing costs (and therefore are look-forward in nature), risk-free rates are based on active, underlying transactions. The cessation of LIBOR for GBP loans will take place by the end of 2021. For USD loans, only the reference rates for certain limited tenors will cease to be published as at such date, while the majority USD LIBOR rates will continue in effect until June 30, 2023, thus giving the market additional time for transition to alternative interest rates.

In the absence of statutory fallback solutions, upon the cessation of the relevant IBOR, the fallback provisions incorporated into the relevant loan documentation (if any) will apply in the first instance. Given that these themselves usually refer to the same IBOR (but different tenors or determined as of a different point in time), it is not unlikely that the applicable interest rate will eventually be based on the costs of funds of the relevant lenders as ultimate fallback provision for lack of other alternatives. From a borrower’s perspective, calculating the interest rate on the basis of the actual costs of funds provides much less certainty as regards funding costs than a reference-rate-based approach. Borrowers should therefore seek to enter into negotiations with their lender with a view to amending their financing agreements by replacing IBOR-based interest rates with risk-free rates. Regarding the specific risk-free rates to be used, in the UK financing space, the market has settled on SONIA (Sterling Overnight Index Average) compounded daily on a look back basis as the replacement reference rate to GBP LIBOR while in the U.S., the Secured Overnight Financing Rate (SOFR) appears to be the reference rate of choice for most financings.

However, there is still quite a lot of movement and room for development as these risk-free rates evolve, including the development of a look-forward “term SOFR”. Consequently, other or additional rates may yet become customary in the future. Regardless of whether these or other alternative rates are used, amending the interest rate provisions in existing loan agreements generally requires the borrower and the lenders to agree any alternative rate subject to the amendment and waivers provisions applicable to the financing. This will usually require a majority lenders’ decision, thus requiring the consent of two thirds of lenders’ commitments. Prompt action is thus required for borrowers unless specific contractual safeguards sufficiently taking into account the borrower’s interest have already been incorporated.

While discussions have started regarding a discontinuation and replacement of EURIBOR as well, such developments are still in their early stages and no definite timeline for such interest reference rate cessation has been determined. Thus, there currently is no need to specifically address such issue for EURIBOR-based loans at this point in time.

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3.2       Avoidance of Transactions Due to Intention to Prejudice Creditors – A Turning Point?

After years of handing down relatively avoidance-friendly rulings, on May 5, 2021, the German Federal Supreme Court (Bundesgerichtshof, BGH) tightened the requirements for an insolvency administrator to attempt avoidance in insolvency (Insolvenzanfechtung) of transactions based on a debtor’s intent to prejudice the insolvent estate’s creditors pursuant to Section 133 of the German Insolvency Code (Insolvenzordnung, InsO) (BGH – IX ZR 72/20).

Prior to the ruling, in general, all an insolvency administrator had to show for a successful challenge was the debtor’s knowledge of its (impending) illiquidity (drohende Zahlungsunfähigkeit), which then led to a presumption of the debtor’s intent to disadvantage other creditors. As far as the counterparty to the contract was concerned, it was sufficient that such party was aware of the (impending) illiquidity. This case law was quite harsh on business partners of a debtor in financial difficulties, as it is possible to contest pre-insolvency performance acts or the completion even of congruent contracts for up to four years. New contracts entered into during a state of imminent illiquidity or incongruent performance actions are even at risk for ten years. The only “safe” way for a business partner to deal with a distressed contract partner under such circumstances was to insist on the submission of a restructuring opinion.

Pursuant to the new BGH ruling, the insolvency administrator will now have to show that the debtor – in addition to the (impending) illiquidity – knew or, at least, tacitly accepted that he would also not be able to meet the claims of all the estate’s creditors in the future. In addition, the intent to disadvantage creditors can no longer simply be inferred from illiquidity but requires additional evidentiary elements such as, for example, payments prior to maturity, or otherwise payment of creditors outside the ordinary course of business.

It will be interesting to see how insolvency administrators and lower instance courts faced with future insolvency avoidance cases interpret these tightened requirements on a case by case basis. Ultimately, insolvency administrators and creditors alike will likely attempt to appeal cases to enable the German Federal Supreme Court to provide for further guidance. In the meantime, at least in restructuring cases involving a party in a state of impending illiquidity, the almost automatic conclusion from knowledge of the financial situation to knowledge of intent to prejudice creditors should no longer apply.

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3.3       Pre-Insolvency Restructuring – The First Twelve Months and What Next?

Exactly a year ago, the German Business Stabilization and Restructuring Act (Unternehmensstabilisierungs- und -restrukturierungsgesetz, StaRUG, ‑ the “Restructuring Act”) was introduced with effect as of January 1, 2021 (see last year’s German Year-End Alert in section 3.2). Since restructuring proceedings under the Restructuring Act are in general non-public, official statistics on the number of proceedings applied for or completed are not available. However, publicly available sources suggest that (i) around ten applications were made in the first eight months of the year 2021, (ii) no large multinational company was involved and (iii) most of the companies concerned were local entities rather than international players.

In addition, there already is a somewhat limited body of court orders related to the Restructuring Act. These early cases hint at two critical aspects of any German pre-insolvency restructuring:

• Several cases have honed in on the determination of impending illiquidity (drohende Zahlungsunfähigkeit). This key determination works in two ways, namely to prevent premature attempts to make use of the pre-insolvency restructuring regime even though the required liquidity shortfall is not severe enough to meet the legal threshold of impending illiquidity. On the other hand, courts have had to deal with cases at the other end of the spectrum when actual illiquidity (Zahlungsunfähigkeit) either existed (and full insolvency proceedings would have to be applied for under mandatory law) or such actual illiquidity later occurred while proceedings under the Restructuring Act were pending (when the continuation of lawfully commenced pre-insolvency restructuring remains the exception).
• A second focal point in the early cases available seems to be the comparative calculation (Vergleichsrechnung) where opposing creditors can show that the restructuring plan disadvantages them when compared to hypothetical alternative scenarios. In this context, the courts are grappling with the question of how to pick the appropriate hypothetical comparator ranging from third-party sale options or other forms of business continuation to full liquidation in formal insolvency proceedings which have to be provided by the debtor in support of an envisaged cross-class cramdown.

It is still too early for a conclusive evaluation of the Restructuring Act, of course, but restructuring professionals have made the following interim observations after one year of experience with the new law:

• Financing banks seem concerned about the risk of being overruled in restructuring proceedings and are looking for additional safeguards to protect their interests. At the same time, affected companies urgently need reliable (bank) financing also during pre-insolvency restructuring.
• The shift of fiduciary duties of management to primarily safeguard the interests of creditors (rather than shareholders) should already apply when a debtor reaches a state of impending illiquidity to allow for an early restructuring without interference from shareholders.
• The last minute deletion in the legislative process of the option to terminate contracts which are obstacles to a successful pre-insolvency restructuring from the toolkit under the Restructuring Act considerably weakens and limits the scope of application of German restructuring proceedings, in particular in the international competition between other EU, UK and US restructuring laws.

All of the above concerns would require certain amendments to the Restructuring Act. The coalition agreement of the newly elected German government between the Social Democratic Party (SPD), the Green Party (Bündnis 90/Die Grünen) and the Liberal Democratic Party (FDP) has not placed particular emphasis on restructuring in its government program and a cross-party consensus may not be easy to achieve. Having said that, the general goal of “modernizing” Germany would, of course, be sufficiently wide to allow for a prompt response through governmental initiatives or parliamentary discussion if serious frictions became apparent in the continued application of the Restructuring Act.

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4.      Labor & Employment

4.1       Purchaser of Insolvent Assets not Liable for Previous Claims

The German Federal Labor Court (Bundesarbeitsgericht, BAG) has reinforced its existing case law with regard to acquisitions out of insolvency, protecting the buyer of insolvent companies (3 AZR 139/17). The court has ruled that the buyer will not be liable for any employee claims that have arisen prior to the insolvency proceedings. This important clarification particularly affects pension entitlements, which can often impede or complicate a distressed transaction. In this context, a decision by the European Court of Justice in 2020 (C 647/18) had left some loose ends (we had covered this ruling in last year’s German Year-End Alert 2020 in section 4.3). The German precedent has now closed the loop on this issue and thus provides legal certainty for purchasers of insolvent companies in Germany.

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4.2       COVID: Employer Entitled to Ask for Vaccination Status

According to a brand-new law which came into force in November 2021 in connection with protective rules designed to combat the pandemic, employers are now within their rights to ask employees for their COVID-19 vaccination status. Consequently, employers can establish a “VRT” regime (vaccinated, recovered, or tested) for their employees. In addition, several large companies have started to devise other creative steps to protect their staff, e.g. by separate cafeteria areas reserved only for vaccinated staff. German employers are also free to decide whether to allow only vaccinated or recovered staff onto their premises. Any employee who can work from home has to be offered the opportunity to do so and has to accept such offer absent any viable counter-indications.

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4.3       Strengthening Female Corporate Leadership (FüPoG II)

Germany has continued its efforts in promoting the equal participation of women and men in executive positions by way of the Second Management Position Act (Zweites Führungspositionen-Gesetz, FüPoG II), the draft of which we already discussed in last year’s German Year-End Alert 2020 in section 1.4.

For listed companies subject to the Co-Determination Act (MitbestG), the German legislator has introduced fixed gender quotas for boards with more than three members: Such boards must now contain at least one male and one female member. Currently, this applies to approximately 70 of Germany’s largest companies. In addition, specific quotas apply for companies in which governmental authorities hold a majority and public law corporations (Körperschaften des öffentlichen Rechts).

Another key element of Germany’s efforts to strengthen female corporate leadership is the newly created option for board members to take temporary “time off” during maternity leave, parental leave, illness and/or times spent caring for a relative. This provision was a direct response to events in 2020, when the founder of a major listed German online furniture retailer (Westwing) was forced to resign from her position as member of the board in order to go on maternity leave. Under the previous legal regime, such a resignation had been the only safe way to avoid serious liability risks also for actions taken in the absence of such board member by the remaining board members.

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4.4       Works Council Rights Extended

Mainly in response to the enhanced digitalization of the workplace, the German legislator has in 2021 adapted and extended the rights of works councils in German companies (Works Councils Modernization Act) in several respects:

(i)      The election processes for works councils have been simplified.

(ii)     The works councils now have a co-determination right regarding remote work (e.g. work from home) and the use of AI (Artificial Intelligence) in personnel processes (e.g. Workday or SuccessFactors).

(iii)   Furthermore, the employer is now responsible for the data processing by works council members, who in return are subject to control by the company’s data protection officer.

(iv)    Finally, the dismissal protection of works council members and candidates has been extended to cover also employees who only undertake preparatory steps to establish a works council.

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5.      Compliance & White Collar

5.1       White Collar: What to Expect from Germany’s New Coalition Government

Following Angela Merkel’s sixteen-year tenure, Germany will – for the first time in its history – be ruled by a coalition consisting of the Social Democratic Party (SPD), the Green Party (Bündnis 90/Die Grünen) and the Liberal Democratic Party (FDP). While white-collar crime is certainly not the primary cornerstone of their coalition agreement, their joint government program does give an indication of what to expect from the new German government.

Most notably, the coalition agreement does not mention the Corporate Sanctions Act draft bill proposed by the former government (see German Year-End Alert 2020, section 6.1) which ultimately did not pass Parliament. If this draft bill had been enacted, the proposal would have introduced a genuine corporate criminal liability currently unknown by German law. However, the new government wants to revise the existing regime of corporate sanctions, i.e. corporate fines based on the Act on Regulatory Offenses (Ordnungswidrigkeitengesetz, OWiG), including an adjustment of sanction levels and a more precise regulation of internal investigations.

The federal government is also seeking to implement the EU Whistleblower Directive 2019/1937. Importantly, the coalition wants to make use of the opening clause of the Directive, i.e. have breaches of national law covered by the same legal framework as reports of breaches of EU law (for a more detailed analysis see section 5.3 below).

Digitalization may take hold of Germany’s courtrooms as the new government plans to make video recordings of police and criminal court hearings obligatory in order to allow defendants to appeal rulings in a more targeted way. In addition, negotiated agreements in criminal proceedings will be subject to new rules.

Furthermore, the new government aims to strengthen law enforcement inter alia by providing customs authorities, the Federal Financial Supervisory Authority (BaFin) and the Financial Intelligence Unit (FIU) with further adequate resources. Both BaFin and the FIU had to tackle serious problems in 2020/2021. BaFin was accused of having insufficiently exercised its supervisory duties in connection with the possibly fraudulent activities of the Wirecard Group, while the FIU encountered significant problems with processing suspicious activity reports based on the Money Laundering Act (Geldwäschegesetz, GWG). The public prosecutor even opened a criminal investigation against officials of the FIU for the offense of obstructing criminal prosecution in public office.

Together with the contemplated new measures to combat tax evasion and tax avoidance more aggressively and consistently to recover tax losses, which shall also be taken by the coalition (see with regard to tax issues also section 2.1 above), it can thus be assumed that there will be an increase in enforcement activities regarding white-collar crime.

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5.2       Germany’s New Supply Chain Due Diligence Act

After lengthy negotiations, the German Parliament adopted the Act on Corporate Due Diligence in Supply Chains (Lieferkettensorgfaltspflichtengesetz – LkSG) on June 21, 2021 (the “Supply Chain Law”).

The Supply Chain Law will come into force on January 1, 2023 for companies that have their central administration, headquarters, registered office or a branch office in Germany if they have more than 3,000 employees in Germany. From January 1, 2024 onwards, the Supply Chain Law will be expanded to also apply to companies in the foregoing categories which have at least 1,000 employees in Germany.

The Supply Chain Law introduces a binding obligation for relevant companies to implement dedicated due diligence procedures to safeguard human rights and the environment in their own operations as well as in their direct supply chain, including inter alia a dedicated risk management system, an internal complaints procedure as well as taking remedial actions in case a violation has occurred or is imminent. In lower, more remote tiers of supply chains, companies are required to take certain actions only in case they obtain “substantiated knowledge” of violation of human rights or environmental standards.

Depending on the severity of the violation, affected companies may be fined under the Supply Chain Law. Large companies with an annual global turnover of more than EUR 400 million (approx. USD 475 million) can be required to pay fines of up to 2% of their annual global turnover. Furthermore, companies that have been fined a minimum of EUR 175,000 can be excluded from public procurement for up to three years.

In parallel, the EU Commission is working on a corresponding proposal for a human rights and environmental due diligence legislation which would introduce a harmonized minimum standard in these areas across all EU Member States. The respective EU legislative initiative has, however, been subject to intense debate and lobbying which has resulted in the respective legislative proposal having been postponed multiple times. It remains to be seen if Germany’s Supply Chain Law will serve as model for the respective EU legislation.

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5.3       Whistleblower Protection

The German legislature has missed the deadline for implementing the EU Whistleblower Directive (EU 2019/1937), which lapsed on December 17, 2021. However, the newly elected government has agreed in its coalition contract in December to implement the directive and to also extend it to grave violations against German law. The EU Whistleblower Directive obliges all companies with at least 50 employees to establish internal channels to report violations against certain EU law provisions. Legitimate whistleblowers can report such violations both internally and externally – without giving structural priority to internal reporting as had previously been the case in many jurisdictions. If such reporting is fruitless or in emergency cases, even public disclosure is allowed. In such cases, the whistleblower is protected against any kind of retaliation, including the non-renewal of a fixed term employment contract. If an employee who has reported violations suffers any kind of disadvantage, it shall be presumed that such disadvantages occurred in retaliation to the report, unless the employer succeeds in proving otherwise (reversed burden of proof).

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6.      Data Privacy & Technology

6.1       (Private) Enforcement Trends, New Data Privacy Laws and Fines

a) Data Privacy Enforcement Trends

As already highlighted in our German 2020 Year-End Alert in section 7, the trend towards greater data privacy enforcement by the German Data Protection Authorities (“DPAs”) continues. In 2021, the German DPAs have especially focused on international data transfers with an increased level of scrutiny. For example, in June 2021 several German DPAs initiated a coordinated investigation into international data transfers of several companies within their respective jurisdictions.

We expect this trend to continue well into the new year, in particular since companies cannot simply rely on the new standard contractual clauses issued by the European Commission in June 2021, but need to implement additional safeguards in order to ensure an adequate level of data protection when transferring personal data to third countries (including the US outside of the EU/EEA.

Further, the Administrative Court (Verwaltungsgericht) of Wiesbaden just decided on December 1, 2021 (case 6 L 738/21.WI) that it is not permissible for a German university to use the “Cookiebot” service to manage the cookie consent process for the purpose of recording consent or its refusal because personal data (i.e. the IP address and the consent/refusal information) are sent to the United States by Cookiebot without a legal basis.

Private enforcement of data privacy provisions has not lost its momentum in 2021, either. German courts are increasingly pushing the boundaries and are willing to expand the reach of data privacy access requests. For example, the German Federal Supreme Court (Bundesgerichtshof, BGH) issued a ruling that extends the scope of such requests, noting that access claims are not limited to “essential biographical information”. The BGH further stated that the data subject can also assert his or her access right even if he or she is already aware of the information requested (e.g., in case of correspondence between the data subject and the controller) and that the access request may also encompass internal notes or internal communications related to the data subject.

b) New Data Privacy Laws

On December 1, 2021, two important new laws came into force: the Data Protection and Privacy in Telecommunications and Telemedia Act (Telekommunikation-Telemedien-Datenschutz-Gesetz, or “TTDSG”) as well as the Telecommunications Modernization Act (Telekommunikationsmodernisierungsgesetz, or “TKMoG”). Both laws aim to modernize German telecommunications law and are intended to create a comprehensive regulation on data privacy in telecommunications and telemedia while implementing the requirements of the European Electronic Communications Code (“EECC”) and the e-Privacy Directive (Directive 2002/58/EC of July 12, 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector) into German law. As a result, so called “over-the-top” (“OTT”) services are brought into the scope of the German data privacy and telecommunications regime. These OTT services are defined in the new laws as “number-independent interpersonal communications services” and may include messenger services, web-based email services and video conferencing services. Notably, as the last EU Member State, Germany finally transposes into national law the consent requirement for cookies as provided for by the e-Privacy Directive. Consent is thus expressly required for so-called non-essential cookies (and irrespective of whether these cookies process personal data). This resolves the uncertainty under the previous Telemedia Act (Telemediengesetz – TMG) and implements corresponding decisions by the European Court of Justice and the German Federal Supreme Court.

c) Update on Fining Activity

In 2021, the German DPAs issued a number of fining decisions, the following of which we would regard as particularly instructive.

In January 2021, the Supervisory Authority of Lower-Saxony imposed a fine of EUR 10.4 million (approx. USD 11.73 million) against a company selling electronic products online for having implemented an excessive and unlawful video surveillance system with regard to its employees and some of its clients without sufficient legal basis. According to the Supervisory Authority, a video surveillance system to detect criminal offences is only lawful if there is a reasonable suspicion towards certain individuals. If this is the case, it may be permissible to monitor these individuals with cameras for a limited period of time. At the company, however, the video surveillance was neither limited to a specific period nor to specific employees.

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6.2       New Copyright Law

On August 1, 2021 the new German Copyright Service Provider Act (Urheberrechts-Diensteanbieter-Gesetz, or “UrhDaG”) came into force, which transposes the requirements of Art. 17 of the European Directive (EU) 2019/790 into German law. This new law introduces the principle of direct intermediary liability into German law and effectively requires online platforms to scan public user content uploaded to their platform and block illegal content. Pursuant to the UrhDaG, the online platform may be exempted from liability if the platform fulfils certain requirements, such as acquiring licenses for copyright-protected third-party content that users publish and distribute. The platform may also use “upload filters” if it does not have the necessary license for the uploaded content.

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6.3       German Legislation on Autonomous Driving

As previewed in our German Year-End German 2020 in section 8.2, on March 15, 2021, the German legislator has proposed a new law on fully automated driving (SAE level 4). The law aims to establish uniform conditions for testing new technologies, such as driverless cars with SAE level 4, throughout Germany. Pursuant to the law, autonomous vehicles will be permitted to drive in regular operation without a driver being physically present, albeit limited to certain locally defined operating areas, for the time being.

The law came into force on July 28, 2021. According to the former German Minister of Transport, Germany is the first country in the world to permit fully automated vehicles in regular operation (subject to local operating areas to be defined by the respective German state authorities).

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7.      Antitrust & Merger Control

7.1       Enforcement Overview 2021

The German Federal Cartel Office (Bundeskartellamt, “FCO”), Germany’s main antitrust watchdog, has had another active year.

On the cartel prosecution side, in 2021, the FCO imposed fines totaling approximately EUR 105 million. The fines were imposed on eleven companies and eight individuals for anticompetitive conduct and agreements in the area of specialty steels and steel forging and for vertical price-fixing agreements concerning consumer electrics, music instruments and school bags. However, the total amount of these fines is roughly 70% lower compared to the year 2020 which may reflect both the impact of the COVID-19 pandemic but also the increasing risks associated with private follow-on damage claims that impact on companies’ willingness to cooperate with the FCO under its leniency regime (see the update on private enforcement below in section 7.4 below).

In a similar downward trend, the FCO only conducted two dawn raids in 2021 – but has indicated that it may soon conduct additional dawn raids and that it has received information from nine companies under the FCO’s leniency program. The FCO also continues to focus on the digital economy and opened several investigation against global tech companies under an amendment to Germany’s competition law (see below section 7.2).

In the domain of merger control, the FCO reviewed approximately 1,000 merger control filings in 2021 (which is approximately 16 % down on 2020). As in prior years, approximately 99 % of these filings were concluded during the one-month phase-one review. Fourteen merger filings required an in-depth phase-two examination (which is 50% more than in 2019). Of those, one transaction was prohibited (this concerned the takeover of a newspaper), five filings were withdrawn by the parties, four cases were cleared in phase-two (subject to conditions in one case), and four phase-two proceedings are still pending. For further details, please see the merger control update below in section 7.2.

Also in 2021, the FCO finally launched its public procurement competition register which is accessible to government and other public procurement bodies and enables them to determine whether companies were involved in competition law infringements and/or other serious economic offences that may justify their exclusion from public procurement proceedings.

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7.2       More Surveillance of Digital Companies and Less Merger Control – Reallocating Resources

At the start of 2021, the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB, or “ARC”) was significantly revised with the aim of creating a more effective regulatory framework for the digital economy.

One of the two key elements of the new regulatory framework is the strengthening of the FCO’s powers, in particular to control digital companies. A newly introduced instrument now allows the FCO ex-ante to prohibit companies with “paramount significance for competition across markets” from engaging in anti-competitive practices by leveraging their market power onto new product markets.

The FCO will assess and reach a formal decision on whether the relevant company has, in fact, “paramount significance for competition across markets”. If this is the case, the FCO can now address alleged anticompetitive practices early on. The FCO has already initiated antitrust proceedings against several global tech companies on this basis. Companies have standing to appeal the FCO’s decision directly to the German Federal Supreme Court (Bundesgerichtshof, BGH) whose decision represents the final word on the matter. The rationale behind this “fast track” proceeding is to enable the FCO to reach and enforce legally binding decisions in an expeditious manner in order to act effectively in fast evolving markets.

In order to free up resources at the FCO, the second key objective of the most recent amendment of the ARC was to reduce the sheer number of merger control proceedings handled by the FCO and to focus on the (likely) more important cases. Compared to other jurisdictions, the number of merger notifications to the FCO has traditionally been very high due to the relatively low turnover thresholds. The turnover thresholds are now set at a significantly higher value. Mergers now have to be notified to the FCO only if one of the involved parties has generated at least EUR 50 million with customers in Germany (formerly: EUR 25 million) and, additionally, another involved party generated at least EUR 17.5 million with customers in Germany (formerly: EUR 5 million). Notably, the alternative transaction value threshold (Euro 400 million) remains unchanged. Pursuant to the FCO’s updated guidelines on the transaction value threshold, however, this threshold will not be triggered regularly if the target company has a domestic turnover of less than EUR 17.5 million which adequately reflects the company’s market position and competitive potential. So far, with approximately 1,000 mergers notified to the FCO in 2021 compared to approximately 1,200 mergers in 2020, the effect of the amendments on the FCO’s workload has been limited. That said, it may be too early to reach conclusions on the effectiveness of the amendments since the number of mergers notified to the FCO had already declined from approx. 1,400 notifications in 2019 to 1,200 in 2020 due to the pandemic.

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7.3       The FCO’s Revised Leniency and Fining Guidelines

First established in 2000 as part of general administrative principles and comprehensively set out in the 2006 leniency program, the FCO’s leniency program has received yet another upgrade in 2021: in order to transpose the requirements of the Directive (EU) 2019/1 of the European Parliament and of the Council of December 11, 2018 (ECN+ Directive) into national law, as of 2021, the basic principles of the leniency program are now enshrined in the ARC (Sections 81h – 81n). Against this background, the FCO also published its revised guidelines on the leniency program in October 2021 which, however, left the basic cornerstones of the German leniency program largely untouched.

With its revision of the guidelines on setting cartel fines, the FCO has transferred into writing what had already been the established decision practice for some time: the starting point for calculating a fine within the statutory fine framework continues to be the “duration and gravity of the infringement”. However, the FCO clarified that the primary element of establishing the gravity of the infringement shall be the turnover achieved specifically with the products or services subject to the antitrust infringement during the relevant period. With regard to the subsequent balancing exercise of aggravating and mitigating elements, the guidelines on setting cartel fines now include specific criteria linked to the specific infringement and the infringing company to be taken into account when determining the final fine amount. There are some good news for companies which want to or have already established compliance programs: going forward, the FCO will consider such compliance programs – whether already established before the alleged infringement or only introduced as a consequence of or in response to such infringement – as a mitigating factor taken into account in the fine calculation.

In summary, the amendments increase the authority’s discretion for setting antitrust fines in the individual case. A substantive change in the scope or level of fines is, however, not expected.

Lastly, the revision of the leniency program falls short of addressing the real elephant in the room: the FCO itself concedes that the number of leniency applications has decreased in past years due to the existential threat of follow-on damages claims from direct or indirect customers or other market players. This threat is not addressed by the leniency program. Leniency applications are, however, an important element for the detection and prosecution of cartels. In order to incentivize companies to apply for leniency, further safeguards will have to be considered, especially with respect to follow-on cartel litigation. The FCO has already stated that it will advocate at the EU level for further incentives for leniency applicants.

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7.4       Private Enforcement Update

The enforcement of antitrust damage claims continues to be one of the “hottest topics” in the German antitrust law arena. Particularly the Rail Cartel, fined by the FCO in 2013, and the Trucks Cartel, fined by the European Commission in 2016, led to a substantial increase of cases in German courts of lower instance as well as for the Federal Supreme Court (Bundesgerichtshof, BGH), which established a permanent “Cartel Panel” in 2019.

“Follow-on” damage claims benefit from the broad binding effect of (fine) decisions issued by the Commission or national competition authorities. German courts therefore mainly dealt with questions relating to the substantiation and proof of damages. Thus far in these cases, German courts have been reluctant to issue judgments which award a specific amount of damages. This has not fundamentally changed since the BGH encouraged the lower courts to estimate damages by reducing the applicable standard of proof in its Rail Cartel II decision in 2020 (Case KZR 24/17). The following developments are particularly noteworthy:

• There seem to be only few recent court decisions in which estimated damages were awarded to customers of a cartel, e.g. the District Court (Landgericht) of Dortmund in another Rail Cartel decision (2020, Case 8 O 115/14), and the Higher District Court (Oberlandesgericht) of Celle in a Chipboard Cartel decision (2021, Case 13 U 120/16).
• Interestingly, the Regional Court of Dortmund (2020, Case 8 O 115/14) based its estimate on a contractually agreed penalty for competition law infringements of 15% of the net price which it considered the minimum damage. This approach arguably finds support in the recent judgment of the BGH in Rail Cartel VI, in which the BGH held that a contractual clause which provides for a specific percentage of the value of commerce as damages in case of a competition law infringement is generally valid (2021, Case KZR 63/18).
• In its Truck Cartel II decision (2021, Case KZR 19/20), the BGH re-confirmed the high likelihood that a cartel price is higher than a hypothetical price found in competition. Like in its Rail Cartel II decision in 2020 (Case KZR 24/17), the court held that this high likelihood is, however, not sufficient to establish a rebuttable presumption in the sense of prima facie evidence.
• In Truck Cartel II (2021, Case KZR 19/20), the BGH also noted that the passing-on defense, i.e. the argument of the defendant that damages have been passed on to the next market level as a damage-reducing factor, can only be successful in exceptional cases. There is no rebuttable presumption to this effect and the defendant must substantiate that the market conditions made a pass-on likely. If the pass-on led to dispersed damages, the pass-on defense can be excluded since claimants with only low-value damages are unlikely to sue (so-called rational apathy). The court also clarified that the suspension of the period of limitations for private plaintiffs begins with the first official measure (e.g. dawn raid) and ends when the time-limit to bring a claim against the authority’s decision has expired.

Besides loss calculation issues, another important development has been the admissibility of certain collective debt collection business models. In the past, German courts regularly dismissed these claims on the basis that the underlying assignments of the damage claims were void due to an infringement of the Legal Services Act (Rechtsdienstleistungsgesetz, RDG). This year, the BGH clarified in its decision AirDeal that this business model does not generally conflict with the Legal Services Act (2021, Case II ZR 84/20).

Recent developments at the EU level will also have a direct impact on private enforcement in Germany. In October 2021, the European Court of Justice (“ECJ”) decided in Sumal (case C-882/19) that a subsidiary can be an addressee of claims for damages resulting from a cartel in which only the ultimate parent entity participated. This judgment expanded the established case law according to which a parent company which exercised decisive influence over its subsidiary could be held liable for competition law infringements of this subsidiary.

Finally, on October 28, 2021 Advocate General Rantos issued an opinion (Truck Cartel Spain, Case C-267/20) in which he reasoned that substantive provisions (including those dealing with the statute of limitations) in the EU Directive could not apply to cases in which the competition law infringements ended prior to the date on which the transposing national provisions came into force. If the ECJ follows the line of Advocate General Rantos, the intertemporal application of several provisions of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) might have to be interpreted in a different way.

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8.      Litigation

8.1       A new Role of Courts as Climate Protectors? Latest Developments in German Climate Change Litigation

Climate change litigation is a growing phenomenon around the globe. Since the adoption of the Paris Agreement in 2015, organizations and individuals seeking the implementation of more ambitious climate change measures brought a number of lawsuits against governments and the private sector (for a French landmark decision in 2021, see our client alert prepared by the Paris office of Gibson Dunn). Even though the Huaraz-Case brought in 2015 is still pending in the Higher District Court (Oberlandesgericht) of Hamm, climate change litigation definitely landed on German shores in 2021: The Federal Constitutional Court (Bundesverfassungsgericht) delivered a landmark decision on March 24, 2021 (1 BvR 2656/18; 78/20; 96/20; 288/20), ordering the German legislator to amend the 2019 Federal Climate Protection Act (Bundes-Klimaschutzgesetz – the “Climate Act”). The court held that the Climate Act violated fundamental freedom rights of the complainants because the – at the time – existing and planned climate protection measures were insufficient to prevent future burdens arising from restrictions that will become necessary in case of unmitigated global warming.

While the German legislator quickly complied by passing amendments to the Climate Act, activists are now trying to transfer the rationale of the decision to the private sector: in the fall of 2021, three directors of a German environmental organization announced that they have filed lawsuits against three car manufacturers and a gas and oil producer, demanding the reduction of their respective carbon emissions to zero by 2030. They claim that the companies’ carbon emissions contribute to future restrictions they will have to endure if the world fails to control climate change.

However, it remains to be seen whether German courts will accept this line of argument in the private sector. The claim is based on provisions of general civil law (Sections 1004 para. 1 s. 2, 823 para. 1 of the German Civil Code (BGB)) that technically provide for the protection of property and similar rights. The plaintiffs, thus, would need to show that these provisions are applicable to the facts at hand, and that the relevant companies can be held liable even though they comply with all environmental laws and standards. Moreover, it appears difficult to establish a clear causal link between carbon emissions by a single company and future restrictions arising for individuals.

Having said that, the decision by the District Court of the Hague (Rechtbank Den Haag) in the Netherlands, ordering oil and gas producer Shell to reduce its carbon emissions, indicates that judges may be willing to break new legal ground. Especially companies in market sectors where decarbonization will take longer to achieve are therefore well advised to closely monitor the developments and prepare for potential risks.

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8.2       A More Agile and Digital Judiciary

In 2021, an ever increasing case load due to mass consumer litigation exposed the German civil judiciary’s existing Achilles heel: scarce personnel, no or limited equipment for digital hearings, and a traditional dependency on paper files and fax machines. In a number of open letters and workshop proposals, judges from around the country have decried the status quo and called for reform. Academics, too, are proposing to modernize Germany’s procedural system in order to allocate judicial resources more sensibly. As of today, in the mass consumer litigation sagas sweeping the German courts, judges have to decide each case individually while knowing fully well that their judgments, regardless of the outcome, will likely be appealed.

In 2018, the declaratory model action was introduced as a first step to bundle mass consumer claims. However, it has proven to be an inefficient tool so far as plaintiffs take little interest in it, in practice. The German legislator anticipated over 400 declaratory model actions per year. Instead, between 2018 and 2021, fewer than 20 model actions were filed.

Germany’s new government coalition took notice. In its coalition agreement, the government promises to reform collective redress in Germany. Existing forms of redress shall be modernized and new instruments created. Small businesses will get the opportunity to join collective consumer actions, and specialized commercial courts shall adjudicate international commercial disputes in English.

In June 2021, the Federal States’ ministers of justice (JustizministerInnen der Länder) discussed and proposed a new procedure allowing to submit previously unsettled legal questions to the German Federal Supreme Court (Bundesgerichtshof, BGH) in the early stages of mass litigation. We expect such a procedure to feature among the remedies which the new government will ultimately propose.

It remains to be seen, however, whether and how promptly the new government can indeed respond in the required expeditious and efficient manner to address the practical concerns of its over-loaded judiciary. Reforms of the court system in the digital space can, in any event, be expected to rumble on for some time yet, and interested industry circles are well advised to monitor such reforms and their practical implications.

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9.      International Trade / Sanctions – Moving Human Rights to Center Stage – the EU’s Recast of its EU-Dual-Use Regulation

Already in 2011, the European Union launched a review of EU-wide controls on exports of dual-use items. This review resulted in the “Regulation (EU) 2021/821 of the European Parliament and of the Council of May 20, 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast)” (the “New EU Dual-Use Regulation”).

The New EU Dual-Use Regulation forms part of the export control regime which EU Member States apply and, same as its predecessor, concerns dual-use items, i.e. mandates export control restrictions on goods, technologies and software that may be used for both civilian and military purposes. The New EU Dual-Use Regulation is in force since September 9, 2021 and replaced Council Regulation (EC) No. 428/2009 in its entirety.

The New EU Dual-Use Regulation (i) widens the range of export control restrictions on emerging dual-use technologies, specifically by adding cyber-surveillance tools, (ii) specifies new due diligence obligations for exporters, emphasizing their contribution to an effective enforcement of dual-use regulations and (iii) increases coordination between EU Member States and serves as a basis for further global cooperation with third countries.

The New EU Dual-Use Regulation specifically includes a list of certain cyber-surveillance items that are seen as being at risk of misuse for violations of human rights, making such items subject to EU Member State export restrictions. An authorization may be required even for certain unlisted cyber-surveillance items, if the exporter has been informed by the competent authority that the items may be intended for internal repression or violations of human rights. And vice versa, an obligation to inform the competent authority may arise where an exporter is aware that unlisted cyber-surveillance items proposed to be exported may be used for human rights violations.

The New EU Dual-Use Regulation further recognizes as vital the contribution of exporters, brokers, providers of technical assistance or other relevant stakeholders to the overall aim of export controls. In this context, it specifically refers to due diligence obligations to be carried out through transaction-screening measures that must be implemented as part of an Internal Compliance Program (“ICP”). This specifically is relevant for the use of general licenses (e.g. for the use of general license EU007 for the intra-group export of software and technology) as well as in the context of possible human rights concerns more broadly.

Finally, the New EU Dual-Use Regulation also provides a strong basis for the EU and EU Member States to engage with each other, but also with third countries, in order to support a level playing field and enhance international security through more convergent approaches to export controls at the global level. An example is the EU-US Trade and Technology Council, which serves as a forum to coordinate their approaches to key global trade and economic relations.

As early as 2019, the EU voiced what it expects from exporters when setting-up their respective ICP (see our corresponding client alert). With the New EU Dual-Use Regulation now enacted and the clearly stated commitment of the new German government to the protection of human rights, exporters would be well-advised to continuously monitor this space and take 2022 as an opportunity to review their respective ICP, focusing specifically on human rights considerations.

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The following Gibson Dunn lawyers assisted in preparing this client update:  Birgit Friedl, Marcus Geiss, Benno Schwarz and Caroline Ziser Smith with contributions from Silke Beiter, Elisa Degner, Andreas Dürr, Lutz Englisch, Ferdinand Fromholzer, Kai Gesing, Valentin Held, Alexander Horn, Katharina Humphrey, Alexander Klein, Markus Nauheim, Markus Rieder, Richard Roeder, Sonja Ruttmann, Hans Martin Schmid, Maximilian Schniewind, Sebastian Schoon, Linda Vögele, Jan Vollkammer, Michael Walther, Georg Weidenbach, Finn Zeidler and Mark Zimmer.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. The two German offices of Gibson Dunn in Frankfurt and Munich bring together lawyers with extensive knowledge of corporate and capital markets law, M&A, finance and restructuring, tax and labor law, in the area of antitrust and competition, sanctions and export control, data protection and cybersecurity, technology transactions and IP/IT, as well as extensive experience in compliance matters, white collar defense and investigations and corporate and commercial litigation and arbitration. The German offices are comprised of deeply accomplished lawyers with a breadth of experience who have assisted clients in various industries and in jurisdictions around the world. Our German lawyers work closely with the firm’s practice groups in other jurisdictions to provide cutting-edge legal advice and guidance in the most complex transactions, sensitive investigations and high-stakes litigation. For further information, please contact the Gibson Dunn lawyer with whom you work or any of the following members of the German offices:

General Corporate, Corporate Transactions and Capital Markets
Lutz Englisch (+49 89 189 33 150), lenglisch@gibsondunn.com)
Ferdinand Fromholzer (+49 89 189 33 170, ffromholzer@gibsondunn.com)
Markus Nauheim (+49 89 189 33 112, mnauheim@gibsondunn.com)
Dirk Oberbracht (+49 69 247 411 510, doberbracht@gibsondunn.com)
Wilhelm Reinhardt (+49 69 247 411 520, wreinhardt@gibsondunn.com)
Silke Beiter (+49 89 189 33 170, sbeiter@gibsondunn.com)
Birgit Friedl (+49 89 189 33 115, bfriedl@gibsondunn.com)
Annekatrin Pelster (+49 69 247 411 521, apelster@gibsondunn.com)

Tax
Hans Martin Schmid (+49 89 189 33 110, mschmid@gibsondunn.com)

Finance, Restructuring and Insolvency
Sebastian Schoon (+49 69 247 411 540, sschoon@gibsondunn.com)
Birgit Friedl (+49 89 189 33 115, bfriedl@gibsondunn.com)
Alexander Klein (+49 69 247 411 518, aklein@gibsondunn.com)

Labor and Employment
Mark Zimmer (+49 89 189 33 115, mzimmer@gibsondunn.com)

Corporate Compliance / White Collar Matters
Ferdinand Fromholzer (+49 89 189 33 170, ffromholzer@gibsondunn.com)
Kai Gesing (+49 89 189 33 180, kgesing@gibsondunn.com)
Markus Nauheim (+49 89 189 33 112, mnauheim@gibsondunn.com)
Markus Rieder (+49 89 189 33 162, mrieder@gibsondunn.com)
Benno Schwarz (+49 89 189 33 110, bschwarz@gibsondunn.com)
Michael Walther (+49 89 189 33 180, mwalther@gibsondunn.com)
Finn Zeidler (+49 69 247 411 530, fzeidler@gibsondunn.com)
Mark Zimmer (+49 89 189 33 115, mzimmer@gibsondunn.com)

Technology Transactions / Intellectual Property / Data Privacy
Kai Gesing (+49 89 189 33 180, kgesing@gibsondunn.com)
Michael Walther (+49 89 189 33 180, mwalther@gibsondunn.com)

Antitrust
Kai Gesing (+49 89 189 33 180, kgesing@gibsondunn.com)
Michael Walther (+49 89 189 33 180, mwalther@gibsondunn.com)
Georg Weidenbach (+49 69 247 411 550, gweidenbach@gibsondunn.com)

Litigation
Kai Gesing (+49 89 189 33 180, kgesing@gibsondunn.com)
Markus Rieder (+49 89 189 33 162, mrieder@gibsondunn.com)
Georg Weidenbach (+49 69 247 411 550, gweidenbach@gibsondunn.com)
Finn Zeidler (+49 69 247 411 530, fzeidler@gibsondunn.com)
Mark Zimmer (+49 89 189 33 115, mzimmer@gibsondunn.com)

International Trade, Sanctions and Export Control
Michael Walther (+49 89 189 33 180, mwalther@gibsondunn.com)
Richard Roeder (+49 89 189 33 115, rroeder@gibsondunn.com)

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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The tense political battles between former President Donald J. Trump and the United States House of Representatives under Democratic leadership renewed debates over the nature and extent of Congress’s authority to investigate and conduct oversight and have wide-ranging implications for congressional investigation of not just the Executive Branch but also of private parties.

In furtherance of the House of Representatives’ vigorous efforts to investigate President Trump, three House committees issued a series of subpoenas to banks and an accounting firm seeking the personal financial records of the President relating to periods both before and after he took office. The President and his business entities resisted, challenging the congressional subpoenas in court, thus drawing the judiciary into the fray. The President’s challenges culminated in the issuance of the Supreme Court’s historic decision in Trump v. Mazars and Trump v. Deutsche Bank AG, which announced groundbreaking new principles of law that will have profound implications for congressional oversight and investigations. In addition, the D.C. Circuit recently encountered related questions of congressional authority over the Executive Branch in connection with separate information requests to former White House Counsel Donald McGahn, leading to a series of hotly debated rulings (and an eventual settlement) in Committee on the Judiciary v. McGahn.

These cases arose against a seemingly well-established backdrop. It has long been understood that Congress possesses inherent constitutional authority to inquire into matters that could become the subject of legislation, such as through the use of compulsory process directed to both government officials and private citizens. As the Supreme Court recognized nearly a century ago, Congress “cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” Thus, “the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” The Executive and Legislative Branches often resolve disputes about congressional requests for information through the “hurly-burly, the give-and-take of the political process between the legislative and the executive.” Only recently has Congress resorted repeatedly to the courts in an effort to enforce subpoenas against Executive Branch officials.

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Washington, D.C. partners Michael Bopp and Thomas Hungar, with Chantalle Carles Schropp, prepared this article, originally published by the University of Virginia’s Journal of Law & Politics, Vol. 37, No. 1, in 2021.

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

Effective January 1, 2023, New York City employers will be restricted from using artificial intelligence machine-learning products in hiring and promotion decisions.  In advance of the effective date, employers who already rely upon these AI products may want to begin preparing to ensure that their use comports with the new law’s vetting and notice requirements.

The new law governs employers’ use of “automated employment decision tools,” defined as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”

The law prohibits the use of such tools to screen a candidate or employee for an employment decision, unless it has been the subject of a “bias audit” no more than one year prior to its use.  A “bias audit” is defined as an impartial evaluation by an independent auditor that tests, at minimum, the tool’s disparate impact upon individuals based on their race, ethnicity, and sex.  Notably, the new law does not define who (or what) is deemed an adequate independent auditor.  It also does not address employers’ use of an automated employment decision tool that is found to have a disparate impact through a bias audit – neither expressly prohibiting the use of such tools nor permitting their use if, for example, it bears a significant relationship to a significant business objective of the employer.

An employer is not permitted to use an automated employment decision tool to screen a candidate or employee for an employment decision until it makes publicly available on its website: (1) a summary of the tool’s most recent bias audit and (2) the distribution date of the tool.

The new law also includes two notice requirements, both of which must occur at least ten business days before an employer’s use of an automated employment decision tool.  Employers interested in using such tools must first notify each candidate or employee who resides in New York City that an automated employment decision tool will be used in connection with an assessment or evaluation of the individual.  The candidate or employee then has the right to request an alternative selection process or accommodation.  Employers must also notify each candidate or employee who resides in New York City of the job qualifications and characteristics that the tool will use in its assessment.

In addition, a candidate or employee may submit a written request for certain information if it has not been previously disclosed on the employer’s website, including: (1) the type of data collected for the automated employment decision tool, (2) the source of such data, and (3) the employer’s data retention policy.  Employers are required to respond within 30 days of receiving such a request.

The new law will be enforced by the City and does not create a private right of action.  It does provide for potentially significant monetary penalties, including a penalty of no more than $500 for an initial violation and each additional violation occurring that same day, and then penalties between $500-$1,500 for subsequent violations.  Significantly, each day that an automated employment decision tool is used in violation of the new law is considered a separate violation.  The failure to provide the requisite notice to each candidate or employee constitutes a separate violation as well.

*          *          *

The potential for learned algorithmic bias has recently been a topic of interest for legislatures and regulatory agencies.  For example, on October 28, 2021, the EEOC announced a new initiative aimed at prioritizing and ensuring that artificial intelligence and other emerging tools used in employment decisions comply with federal civil rights laws.

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The following Gibson Dunn attorneys assisted in preparing this client update: Danielle Moss, Harris Mufson, Gabby Levin, and Meika Freeman.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following:

Danielle J. Moss – New York (+1 212-351-6338, dmoss@gibsondunn.com)

Harris M. Mufson – New York (+1 212-351-3805, hmufson@gibsondunn.com)

Gabrielle Levin – New York (+1 212-351-3901, glevin@gibsondunn.com)

Jason C. Schwartz – Co-Chair, Labor & Employment Group, Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com)

Katherine V.A. Smith – Co-Chair, Labor & Employment Group, Los Angeles (+1 213-229-7107, ksmith@gibsondunn.com)

© 2021 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

On December 15, 2021, the Securities and Exchange Commission (“SEC” or “Commission”) held a virtual open meeting where it considered four rule proposals, including two that are particularly pertinent to all public companies: (i) amendments regarding Rule 10b5-1 insider trading plans and related disclosures and (ii) new share repurchase disclosures rules.

Both proposals passed, though only the proposed amendments regarding Rule 10b5-1 insider trading plans and related disclosures passed unanimously; the proposed new share repurchase disclosures rules passed on party lines. Notably, these proposals only have a 45-day comment period, which is shorter than the more customary 60- or 90-day comment periods. Commissioner Roisman, in particular, raised concerns about the 45-day comment periods being too short, noting that the comment periods run “not only over several holidays,” but “also concurrent with five other rule proposals that have open comment periods.”

Below, please find summary descriptions of the these two rule proposals, as well as certain Commissioners’ concerns related to these proposals.

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The following Gibson Dunn attorneys assisted in preparing this update: Ronald Mueller, Andrew Fabens, James Moloney, Lori Zyskowski, Thomas Kim, Brian Lane, and Elizabeth Ising.

In August 2021, amidst the rapid collapse of the Afghan government and the Taliban takeover of Afghanistan, Gibson Dunn launched a firmwide effort to provide pro bono legal services to the Afghan community. What began as a small-scale effort to provide assistance to individuals and families with ties to the Firm, including through military service or family connections, quickly grew into something much bigger. Over the course of a few short months, the Firm began to work with hundreds of Afghan individuals and families who feared Taliban violence due to their collaboration with the U.S. military or government, their work to promote the Afghan government and civil society, or their public support for causes seen as antithetical to the Taliban’s rule. Our clients included journalists, teachers, lawyers, doctors, women’s rights activists, and those who worked with or for the United States military, most of whom were and are seeking humanitarian parole as a means of traveling to and resettling in the United States. As we close out 2021, that work is ongoing, though some of our focus has begun to pivot to providing pro bono services to those individuals and families who have made it safely to the United States and are now seeking permanent lawful status here, most often as asylees.  We invite all our friends, colleagues, and clients to join with us in these efforts in the days, weeks, and months to come.

Section I of this report provides an update regarding the situation in Afghanistan and efforts to evacuate vulnerable Afghans to the United States. Section II discusses Gibson Dunn’s ongoing efforts on behalf of Afghans at imminent risk of Taliban violence, many of whom are applying for humanitarian parole, as well as the Firm’s leadership role in the Welcome Legal Alliance, an initiative to support Afghan evacuees who have arrived in the United States and require pro bono legal representation to navigate the U.S. immigration system and address other legal needs. Finally, Section III of this report provides additional context regarding the resettlement process and benefits available to Afghan evacuees who have arrived in the United States. To learn more about these efforts or to get involved, please reach out to Katie Marquart, Partner & Pro Bono Chair.

I. Overview of the Current Situation in Afghanistan

Beginning in late August 2021, tens of thousands of Afghans, along with U.S. citizens and permanent residents, tried desperately to flee the country—an exodus that has continued over the past several months. In the months following the Taliban’s seizure of power, the situation in Afghanistan has become even more dire, with thousands of individuals internally displaced, in hiding, and at risk of Taliban reprisals. Nearly four months after the United States completed its military withdrawal from Afghanistan, approximately 44,000 displaced Afghans have settled into permanent housing and integrated into local communities throughout the United States. Another 32,000 remain in temporary housing on seven military bases across the country and a few overseas military posts, awaiting resettlement assistance while the Biden Administration, nonprofit organizations, and private sector partners work together to resettle families across the country. Others have been evacuated by U.S. allies and seek to resettle in countries like Canada, Germany, and the United Kingdom.

Thousands of Afghans who sought to escape Taliban rule remain in Afghanistan, where they face a perilous future. Individuals targeted by the Taliban—including dissidents, cultural rights defenders, artists in banned industries, religious and ethnic minorities, and individuals associated with Western culture—live in constant fear, witnessing and experiencing beatings, arrests, enforced disappearances, and killings. U.S. Citizenship and Immigration Services (“USCIS”) has received more than 30,000 humanitarian parole applications from Afghans seeking to enter the United States, and many other Afghans continue searching for alternate routes to safety, either in the United States or elsewhere. Because many of these individuals collaborated with the U.S. government and military, served in the Afghan government, or worked with nonprofit organizations and NGOs, they fear Taliban reprisals.  Many of these individuals and families have been forced into hiding in Afghanistan, while others, in desperation, have embarked on perilous journeys to neighboring countries.

Additionally, with winter looming in Afghanistan, the country is facing an economic crisis with potentially devastating consequences for its citizens. There are already approximately 23 million people reportedly on the brink of potentially life-threatening food insecurity.  And, as feared, the Taliban’s newly-implemented policies have restricted women’s freedom of movement and imposed compulsory dress codes, denied and curtailed access to education and employment, and restricted rights to peaceful assembly. Moreover, employment opportunities for women have declined, leading to diminished resources for families forced to rely on single income earners.  Exacerbating these challenges, many individuals who worked with U.S. and Afghan forces over the last 20 years have gone into hiding and are now unable to support their families.

II. Gibson Dunn’s Efforts on Behalf of Affected Families

a. Pro Bono Humanitarian Parole Applications

In the waning days of August, as the humanitarian crisis in Afghanistan began to unfold, Gibson Dunn began working with dozens of families hoping to apply for humanitarian parole in the United States. These initial efforts were discussed in our September 2021 report, The Humanitarian Crisis in Afghanistan: Overview of Gibson Dunn’s Recent Efforts. Since then, the Firm has remained steadfastly committed to helping these families seek refuge from the threat of Taliban violence, secure legal status in the United States, and reunite with family members.

To date, approximately 200 Gibson Dunn attorneys and staff have dedicated more than 5,000 hours—valued at more than $4 million—to these efforts, including preparing approximately 300 humanitarian parole applications. Of course, Gibson Dunn is only a small part of the broader legal response to the humanitarian crisis in Afghanistan. We are proud to have partnered with in-house attorneys from many of our corporate clients on many of these applications, and we are thankful to have collaborated with attorneys at nonprofit organizations that are on the front lines of these efforts.

The stories of these families and their bravery continue to inspire Gibson Dunn attorneys, who are committed to pursuing all legal avenues to help these families reach safety. Many of these families have demonstrated a longstanding opposition to the Taliban—from attorneys and judges who helped put Taliban fighters behind bars to families who ran clandestine schools for girls, from interpreters who worked with the U.S. military to student activists and advocates for peace, and from former members of the Afghan government to religious and ethnic minorities. By way of example, we have proudly partnered with the International Legal Foundation (“ILF”), an international NGO that hires, trains, and deploys local legal aid attorneys in post-conflict areas, to help file humanitarian parole applications for seven of their Afghan lawyers and their families. We sincerely hope that, while their mission continues around the world, we can help the ILF bring some of their colleagues to safety.

We are honored to work with these courageous individuals and hope to one day welcome them as our new neighbors and friends in the United States.

b. Welcome.US

Gibson Dunn also has played an active role in Welcome.US, a new national effort to empower individuals, nonprofits, businesses, and others to welcome and support Afghan refugees arriving in the United States. In October 2021, Gibson Dunn Managing Partner Barbara Becker joined a roundtable meeting hosted by the White House to discuss ways in which private sector leaders are working together to help support Afghan evacuees.

As part of this effort, Gibson Dunn has teamed up with Welcome.US, Human Rights First, and the Afghan-American Foundation to lead the Welcome Legal Alliance, which will mobilize law firms, corporate legal teams, and the broader legal community to ensure that Afghans arriving in the United States have access to legal services throughout the entire resettlement process. Gibson Dunn, together with other co-leaders of the Alliance, is actively recruiting new legal volunteers from law firms and businesses, sourcing Dari- and Pashto-speaking legal professionals, and coordinating a working group to triage legal needs and reduce the barriers to obtaining quality legal representation. A growing list of organizations and law firms, including The International Refugee Assistance Project, Kids in Need of Defense, Pars Equality Center, Tahirih Justice Center, and We the Action, have committed to joining the Alliance.  If you are interested in joining this effort, please reach out to WelcomeLegalAlliance@gibsondunn.com.

III. Resettlement Process and Benefits for Afghan Arrivals

As an increasing number of Afghan refugees arrive in the United States, the Firm’s work is shifting to help Afghan evacuees settle in their new homes and obtain permanent immigration status. Many of these families are eligible for Special Immigrant Visas (“SIVs”) or other priority visas, and currently are awaiting resolution of their applications.  Others, who have been granted humanitarian parole for a period of two years, intend to lawfully seek asylum upon their arrival in the United States.

Given the significant logistical and regulatory challenges inherent in resettling in the United States, Gibson Dunn is committed to helping these families navigate the intimidating and often confusing legal landscape to obtain the benefits to which they are entitled. Below, we describe some of the requirements placed on Afghan humanitarian parolees to maintain their parole status, discuss the process of registering for health and housing benefits, and provide a brief overview of the resettlement process.

a. Parole Requirements and Accommodations Upon Arrival to the United States

Every applicant approved as a humanitarian parolee must undergo a series of processing, screening, and vetting processes—both before and after arrival in the United States—if they wish to maintain their parole. U.S. Customs and Border Protection (“CBP”) has placed conditions on all paroled Afghan nationals, including medical screenings and vaccination requirements. Intelligence, law enforcement, and counterterrorism professionals conduct biometric and biographic screenings for all Afghan arrivals into the United States. Additionally, parolees are tested for COVID-19 upon arrival to the airport, and are given the option to receive the COVID-19 and other required vaccinations at various U.S. government-run sites, or at a designated Department of Defense (“DOD”) facility.  The testing and vaccinations are provided at no cost to the Afghan arrivals.

Once tested, Afghan parolees are welcomed onto U.S. military bases, where they have the option to receive services through the U.S. government’s Afghan Placement and Assistance (“APA”) program. The APA is an emergency program created in response to the evacuation efforts in Afghanistan, and is designed to provide initial relocation support and benefits to Afghan parolees admitted to the United States between August 20, 2021, and March 31, 2022.

Afghan parolees receive temporary housing facilities on military bases until they are resettled into the local community. DOD has provided temporary housing facilities to parolees at eight installations: Marine Corps Base Quantico, Virginia; Fort Pickett, Virginia; Fort Lee, Virginia; Holloman Air Force Base, New Mexico; Fort McCoy, Wisconsin; Fort Bliss, Texas; Joint Base McGuire-Dix-Lakehurst, New Jersey; and Camp Atterbury, Indiana.

b. Health Insurance and Other Health Benefits

Almost all Afghan parolees receive health coverage provided by the Office of Refugee Resettlement (“ORR”) during their stay on the DOD bases. After leaving the bases, almost all Afghan refugees will be eligible for health insurance through Medicaid, the Children’s Health Insurance Program (“CHIP”), the Health Insurance Marketplace, or the Refugee Medical Assistance Program (“RMA”). These benefits are available under Section 2502 of the Extending Government Funding and Delivering Emergency Assistance Act, H.R. 5305, P.L. 117-43 (enacted September 30, 2021), which extends health insurance to Afghans paroled into the United States on or after July 31, 2021. The act expands eligibility for resettlement assistance, entitlement programs, and other benefits available to refugees until March 31, 2023, or the term of parole granted to the parolee, whichever is later.

c. Access to Resettlement Agencies and Additional Benefits

Parolees may resettle in a community either on their own or through a resettlement agency. The agencies factor in a parolee’s geographical preference for resettlement, but housing shortages in certain locations may require resettlement elsewhere. On base, parolees eventually will be processed and connected to a local resettlement agency that will complete the process of fully integrating the parolee into a local community. Parolees may remain on the military base while they await being connected to a resettlement agency, or they may voluntarily depart from the base and independently seek assistance from a resettlement agency. Although the process of being connected to an agency and resettled off base has been quite lengthy—a recent report estimated it to take more than a month—for evacuees on the military bases, the government hopes to complete these efforts by February 15, 2022.

Regardless of how the parolee is connected to the resettlement agency, the parolee will receive certain benefits and services through the agency after processing is complete. Although benefits available to parolees will vary by location, resettlement agencies typically offer benefits and resources relating to housing, clothing, cultural orientation, counseling, English language training, job skills training, and job placement. The resettlement agency also can assist the parolee in signing up for government benefits like Supplemental Security Income (if eligible) or temporary assistance for needy families (“TANF”). Parolees ineligible for these benefits may still receive assistance through ORR’s Refugee Cash Assistance (“RCA”) program, which provides eight months of cash assistance to help families meet their most basic needs (e.g., food, shelter, and transportation).

The nine resettlement agencies working with the U.S. government are:

Lutheran Immigration & Refugee Service (“LIRS”) 700 Light Street Baltimore, MD 21230 (410) 230-2700 lirs@lirs.org www.lirs.org	United States Conference of Catholic Bishops (“USCCB”) Migration and Refugee Services 3211 Fourth Street, NE Washington, DC 20017 (202) 541-3000 www.usccb.org/mrs
Ethiopian Community Development Council, Inc. (“ECDC”) 901 S. Highland Street Arlington, VA 22204 (703) 685-0510 www.ecdcus.org	U. S. Committee for Refugees and Immigrants (“USCRI”) 2231 Crystal Drive, Suite 350 Arlington, VA 22202 (703) 310-1130 www.refugees.org
HIAS 1300 Spring Street, 5th Floor Silver Spring, MD 20910 (301) 844-7300 www.hias.org	International Rescue Committee (“IRC”) 122 East 42nd Street New York, NY 10168 (212) 551-3000 www.rescue.org
Church World Service (“CWS”) Immigration and Refugee Program 475 Riverside Drive, Suite 700 New York, NY 10115 (212) 870-2061 www.cwsglobal.org	World Relief (“WR”) 7 East Baltimore Street Baltimore, MD 21202 (443) 451-1900 www.worldrelief.org
Domestic & Foreign Missionary Society (“DFMS”) Episcopal Migration Ministries (EMM) 815 Second Avenue New York, NY 10017 (212) 716-6000 emm@episcopalchurch.org www.episcopalmigrationministries.org

IV. Conclusion

The mobilization of lawyers to help those affected by the continuing—and worsening—upheaval in Afghanistan has only just begun. Gibson Dunn is proud to partner with the broader legal community, including legal aid organizations, resettlement agencies, and attorneys across the private sector, to fight on behalf of these courageous families.  Through coordinated and cooperative efforts, such as the Welcome Legal Alliance, we can maximize our impact and assist Afghans in need, both in Afghanistan and here in the United States.

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Gibson Dunn lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you usually work or the following:

Katie Marquart – New York (+1 212-351-5261, kmarquart@gibsondunn.com)
Patty Herold – Denver (+1 303-298-5727, pherold@gibsondunn.com)

© 2021 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

This year marks an important turning point for the seven-member Court, as new judges will soon comprise nearly half its bench. In June, the New York Senate confirmed the appointment of Anthony Cannataro and Madeline Singas. Judge Cannataro, who was formerly the Administrative Judge of the Civil Court of the City of New York, filled the vacancy left by Judge Paul Feinman, who passed away. Judge Singas, who was formerly the Nassau County District Attorney, filled the vacancy left by the retired Judge Leslie Stein. As Judges Feinman and Stein often voted with Chief Judge DiFiore and Judge Garcia to form a majority in the Court’s decisions, it remains to be seen if that pattern continues.

The Court will also change in 2022 because Judge Eugene Fahey, a swing vote, reaches his mandatory retirement age at the end of this year. To fill his seat, Governor Kathy Hochul nominated Shirley Troutman, a justice in the Appellate Division, Third Department. If confirmed, she would be the second African American woman to sit on the Court. Justice Troutman has extensive experience as a prosecutor and a judge. She also has spent her career upstate, providing geographic balance. On the other hand, analysts have expressed concern that the Court lacks “professional diversity,” as it would include four former prosecutors and only one judge (Fahey, or Troutman) with judicial experience in the Appellate Division.

Despite this turnover, the Court continued previous trends, with the pace of decisions reduced and a high number of fractured opinions. After Judge Feinman’s passing, the Court ordered several cases to be reargued in a “future court session,” which may suggest that his was a potential swing vote in those cases. Nevertheless, the Court continued to resolve significant issues in a wide array of areas, from territorial jurisdiction and agency deference to consumer protection and insurance contracts.

The New York Court of Appeals Round-Up & Preview summarizes key opinions primarily in civil cases issued by the Court over the past year and highlights a number of cases of potentially broad significance that the Court will hear during the coming year. The cases are organized by subject.

To view the Round-Up, click here.

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Gibson Dunn’s New York office is home to a team of top appellate specialists and litigators who regularly represent clients in appellate matters involving an array of constitutional, statutory, regulatory, and common-law issues, including securities, antitrust, commercial, intellectual property, insurance, First Amendment, class action, and complex contract disputes.  In addition to our expertise in New York’s appellate courts, we regularly brief and argue some of the firm’s most important appeals, file amicus briefs, participate in motion practice, develop policy arguments, and preserve critical arguments for appeal.  That is nowhere more critical than in New York—the epicenter of domestic and global commerce—where appellate procedure is complex, the state political system is arcane, and interlocutory appeals are permitted from the vast majority of trial-court rulings.

Our lawyers are available to assist in addressing any questions you may have regarding developments at the New York Court of Appeals, or any other state or federal appellate courts in New York.  Please feel free to contact any member of the firm’s Appellate and Constitutional Law practice group, or the following lawyers in New York:

Mylan L. Denerstein (+1 212-351-3850, mdenerstein@gibsondunn.com)
Akiva Shapiro (+1 212-351-3830, ashapiro@gibsondunn.com)
Seth M. Rokosky (+1 212-351-6389, srokosky@gibsondunn.com)

Please also feel free to contact the following practice group leaders:

Allyson N. Ho – Dallas (+1 214.698.3233, aho@gibsondunn.com)
Mark A. Perry – Washington, D.C. (+1 202.887.3667, mperry@gibsondunn.com)

© 2021 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.