October 17, 2023, Covington Alert

What You Need to Know

  • On October 4, 2023, Deputy Attorney General Lisa Monaco provided new and expanded policy guidance on corporate criminal enforcement, announcing a new Mergers and Acquisitions Safe Harbor Policy (“Safe Harbor Policy”).
  • The Safe Harbor Policy provides acquiring companies an opportunity to avoid criminal charges if they voluntarily self-disclose misconduct at acquired companies within six months of a merger or acquisition (“M&A”), fully cooperate in any DOJ investigation, engage in timely and appropriate remediation within one year of the transaction closing date, and pay restitution or disgorgement, as appropriate.
  • The Safe Harbor Policy—which we expect will be formalized in writing and incorporated into the Justice Manual—appears to draw heavily on policies and guidance from the Criminal Division dating back to 2008, but that will now be formalized, clarified, and applied across the Department, with different parts of the Department “tailor[ing] its application . . . to fit their specific enforcement regime.”
  • As with all of the Department’s recent policy announcements concerning the benefits of voluntary disclosure, significant questions remain. We discuss some of those below, and we will be watching to see how DOJ applies the Safe Harbor Policy in practice. At a minimum, however, companies should ensure that their pre- and post-closing diligence and integration processes are designed to quickly identify legacy or ongoing misconduct at acquired companies so that they may have an opportunity to consider the expected benefits and burdens associated with a voluntary disclosure under the Safe Harbor Policy.
  • In addition to announcing the Safe Harbor Policy, Deputy Attorney General Monaco noted a “dramatic” expansion in national security enforcement, new enforcement tools that the Department is deploying, continued focus on incentivizing companies to seek compensation clawbacks from individual wrongdoers, and even more policy changes to come. Deputy Attorney General Monaco’s announcement follows recent shifts in enforcement remedies sought by the Department, such as divestiture in certain criminal antitrust cases—an unprecedented remedial measure.

The Safe Harbor Policy

The new Safe Harbor Policy is the first Department-wide policy to address voluntary self-disclosure of potential criminal misconduct in the M&A context, and it follows Principal Associate Deputy Attorney General Marshall Miller’s preview last month of a forthcoming announcement in this space. 

The Safe Harbor Policy draws on prior policies and statements with respect to how the Department will address criminal misconduct at acquired entities. 

  • One prior policy was the revamped Corporate Enforcement and Voluntary Self-Disclosure Policy (“CEP”), which we discussed in a previous alert. The CEP, which applies to all matters brought by the Criminal Division, expressly provided that where an acquiring company complied with the CEP—namely, voluntarily disclosing, fully cooperating, timely and appropriately remediating, and paying disgorgement—there would be a presumption of a declination, or, in the presence of aggravating factors (described below) at the acquired entity, a declination at the Department’s discretion.
  • In another previous statement of the Department’s views on enforcement in the M&A context—the seminal 2008 Foreign Corrupt Practices Act Opinion Procedure Release requested by Halliburton (the “Halliburton Opinion”)—DOJ indicated that it would decline to pursue an enforcement action against Halliburton for pre- or post-acquisition conduct of the acquired company, provided that Halliburton disclosed the conduct to DOJ within 180 days of closing and fully remediated the conduct in a reasonable period. The Deputy Attorney General specifically referenced the Halliburton Opinion in her speech, noting that the opinion “applied only to that transaction, . . . and did not have broader application.” While the Deputy Attorney General’s speech stops short of enshrining the Halliburton Opinion into Department-wide policy, it is clear that the Department intends to embed principles from this opinion release into the Safe Harbor Policy.
  • The Criminal Division’s and the Enforcement Division of the SEC’s Resource Guide to the U.S. Foreign Corrupt Practice Act also addressed enforcement in the M&A context. The Resource Guide encouraged acquiring companies to conduct risk-based due diligence, enhance the compliance program of an acquired entity, conduct training at the acquired entity, perform post-closing diligence or auditing, and self-disclose corrupt payments discovered. The Resource Guide indicated that “DOJ and [the] SEC will give meaningful credit to companies who undertake these actions, and, in appropriate circumstances, DOJ and [the] SEC may consequently decline to bring enforcement actions.” The Safe Harbor Policy appears to be targeted towards giving greater certainty to companies regarding the circumstances in which DOJ, at least, will not pursue enforcement.

The Safe Harbor Policy builds on these prior statements and formalizes aspects of prior guidance, clarifying the Department’s expectations, providing clearer temporal guideposts, and extending the applicability of the Safe Harbor Policy Department-wide. Under the new Safe Harbor Policy, acquiring companies can qualify for the presumption of a declination if they meet the following criteria:

  • Prompt and Voluntary Disclosure. The acquiring company must promptly and voluntarily disclose the acquired company’s misconduct within six months of the transaction closing date, regardless of whether the misconduct was discovered pre-acquisition or post-closing.
  • Full Cooperation. The acquiring company must fully cooperate with the Department’s investigation.
  • Timely and Appropriate Remediation, Restitution, and Disgorgement. The acquiring company must remediate the disclosed misconduct within a presumptive 12 months of the transaction closing date. The Department acknowledges that the remediation deadline can be extended “depending on the specific facts, circumstances and complexity of a particular transaction.” The company must also pay timely and appropriate restitution and disgorgement.

From a prudential standpoint, Deputy Attorney General Monaco positioned the Safe Harbor Policy as continuing to incentivize voluntary disclosure and to avoid unintended consequences—in particular, she explained that the Department would not want to “discourage companies with effective compliance programs from lawfully acquiring companies with ineffective compliance programs and a history of misconduct.” Consistent with this sentiment, the Safe Harbor Policy states that the presence of aggravating factors (e.g., involvement by executive management, significant profit from the misconduct, egregious or pervasive misconduct, or criminal recidivism) at the acquired company will not impact the acquiring company’s ability to receive a declination. In addition, misconduct disclosed under the Safe Harbor Policy will not be factored into any future recidivist analysis for the acquiring company. That said, the Safe Harbor Policy makes clear that aggravating factors at the acquired company may preclude the acquired company—like other companies that meet the Department’s requirements under the CEP and numerous other voluntary disclosure policies promulgated by DOJ components—from qualifying for applicable voluntary self-disclosure benefits, including a declination, even though a declination still would be possible on a discretionary basis. 

While the increased transparency and predictability afforded by the Safe Harbor Policy are welcome, as with many Department policy revisions, several questions remain. In addition to the questions we noted when several DOJ components recently rolled out voluntary disclosure policies, which Deputy Attorney General Monaco suggested would apply to the Safe Harbor Policy, we will keep an eye out for further clarity regarding the following:

  • The presumption of a declination applies only to criminal misconduct discovered in “bona fide, arms-length M&A transactions.” What will DOJ count as a “bona fide, arms-length” transaction? Are majority investments, or transactions in which a party with a minority stake increases its stake to take a controlling interest, included? While the policy is focused on M&A, would that apply to investments in special purpose vehicles or consortia that are created for purposes of pursuing, for example, energy or infrastructure projects?
  • It is clear from Deputy Attorney General Monaco’s remarks that the Safe Harbor Policy applies to misconduct occurring prior to the transaction’s closing, but it is not clear whether DOJ intends the policy to apply to misconduct that starts pre-acquisition and continues post-closing, or that occurs only in the acquired company’s operations within the first six months post-closing. Historically, companies have had concerns about potential pre-closing violations that could carry over for several months after a transaction has closed, and we note that the Halliburton Opinion specifically covered post-closing conduct, if it was promptly disclosed and remediated. Is the Safe Harbor Policy strictly limited to misconduct that occurred prior to closing, or does it include misconduct that may spill over into the period after the transaction has closed?
    • If the Safe Harbor Policy is intended to apply to post-closing conduct, whether new or continuing, how will potential conflicts between various voluntary self-disclosure policies and the Safe Harbor Policy be resolved? For instance, as we covered in a previous alert and companion chart, several voluntary disclosure policies—including those promulgated by the U.S. Attorneys’ Offices, the Environmental and Natural Resources Division, the Tax Division, the National Security Division, and the Civil Division’s Consumer Protection Branch—do not provide for a presumptive declination. As we noted in our alert, uncertainty regarding which voluntary disclosure policy might apply when two or more are applicable will also persist here. This unpredictability, or even perceived unpredictability, has the potential to undermine the Deputy Attorney General’s stated objective of achieving consistent results across the Department.
  • The Safe Harbor Policy does not address the Department’s intentions in a situation involving the presence of aggravating factors at the acquiring company. Could the presence of such factors overcome the presumption of a declination, thereby exposing an acquiring company to a criminal resolution? What other factors could overcome the presumption of a declination for the acquiring company?
  • The Department has made clear that the Safe Harbor Policy will not apply to “misconduct that was otherwise required to be disclosed or already public or known to the Department.” How will the Safe Harbor Policy apply to companies that operate in regulated settings, such as in environmental regimes that rely on mandated disclosures to the government regarding environmental non-compliance, or government contractors facing reporting obligations under the Federal Acquisition Regulation?
  • As noted above, recognizing the unique nature of individual transactions, Deputy Attorney General Monaco advised that the timelines for disclosure and remediation will be subject to a “reasonableness analysis,” and therefore DOJ attorneys have the discretion to extend the timelines in the Safe Harbor Policy—and, by contrast, to shorten them for issues that “can’t wait for a deadline” to be disclosed, such as “misconduct threatening national security” or “involving ongoing or imminent harm.” What factors will prosecutors consider in determining whether to exercise such discretion, and what precisely qualifies as an issue that “can’t wait for a deadline” to be disclosed?
  • Deputy Attorney General Monaco noted that if an acquiring company “does not perform effective due diligence” or voluntarily self-disclose misconduct, then the company “will be subject to full successor liability for that misconduct.” Does this signal an intent to more aggressively pursue acquiring rather than acquired companies in situations that do not involve voluntary self-disclosure?
  • While the Safe Harbor Policy provides for a presumptive declination for an acquiring company that meets the stated requirements, acquired companies—particularly those with aggravating factors—do not enjoy the same presumption. Will the Department’s treatment of the acquired entity vary depending on the form of the corporate transaction, and in particular whether the acquired company continues to exist as a separate legal entity that could enter into a resolution of its own? Will the Safe Harbor Policy change companies’ calculus with respect to transaction form? One of the themes of Deputy Attorney General Monaco’s remarks was the Department’s efforts to avoid “unintended consequences,” and we will be watching to see if the Safe Harbor Policy creates any of its own.
  • The Safe Harbor Policy may augment longstanding policies—such as the Antitrust Division’s leniency program—which already provide leniency for companies that voluntarily self-disclose violations. Deputy Attorney General Monaco confirmed that that the Safe Harbor Policy would apply “Department-wide” and “[e]ach part of the Department will tailor its application of this policy to fit their specific enforcement regime.” How will various DOJ components, including the Antitrust Division, revise their policies in light of the new Safe Harbor Policy? We will be watching to see how various components bring their policies into alignment with the Safe Harbor Policy.

Looking Ahead

As with many of the Department’s policy revisions over the last couple of years, the new Safe Harbor Policy seeks to provide companies with more transparency, predictability, and consistency in an effort to support decisions to voluntarily self-disclose misconduct. In response, companies should position themselves to take advantage of the benefits, if they so choose. 

The Safe Harbor Policy sends a clear signal to companies that compliance should be of paramount importance before, during, and after a transaction. Indeed, Deputy Attorney General Monaco stated that “[c]ompliance must have a prominent seat at the deal table if an acquiring company wishes to effectively de-risk a transaction.” Now that the Department has announced its expectations, companies should review how they approach acquisitions to position themselves to consider taking advantage of the Safe Harbor Policy:

  • A Seat at the Table. Compliance must be a significant stakeholder in corporate transactions, with companies supporting effective pre- and post-acquisition due diligence and compliance integration. The Department has made clear that it is “placing an enhanced premium on timely compliance-related due diligence and integration.” While sophisticated companies have long focused on identifying compliance risks pre- and post-transaction, and on integrating an acquired company into its compliance ecosystem, the Department has provided real incentives to double down on those efforts, and to undertake them with rigor.
  • Prepare for Post-Acquisition Work Prior to Closing. Particularly where pre-acquisition diligence is limited or where potential issues are identified, companies should be prepared to move quickly to conduct post-transaction assessments of compliance risks and to evaluate pre- and post-acquisition conduct. Companies will need to quickly identify potential issues in order to consider whether or not to voluntarily disclose.
  • Raise Issues to Decision-Makers. As part of a diligence or integration process, companies should ensure that compliance-relevant information is escalated to permit decisions about voluntary self-disclosure and to promptly remediate any potential misconduct.
  • Weigh the Benefits and Costs of Voluntary Self-Disclosure. Companies should carefully weigh the benefits of voluntary disclosure against any potential costs or burdens. Seeking the benefits of the Safe Harbor Policy requires providing full cooperation with the Department’s investigation, as well as “appropriate remediation, restitution, and disgorgement,” which may prove burdensome for acquiring companies. Companies should also consider that the Safe Harbor Policy does not protect them from risks beyond the Department’s control, such as investigations by other domestic or international regulators, or follow-on civil litigation.

Other Announcements

Beyond announcing the Safe Harbor Policy, Deputy Attorney General Monaco’s remarks focused on other areas of the Department’s corporate criminal enforcement priorities, and she foreshadowed even more policy changes to come. 

  • “Dramatic” Expansion of National Security Enforcement. Echoing Principal Associate Deputy Attorney General Miller’s remarks last month, Deputy Attorney General Monaco noted that the Department will continue to pursue a “dramatic” expansion of national security enforcement. The Department recently hired the National Security Division’s first-ever Chief Counsel for Corporate Enforcement, and the Deputy Attorney General said that more than 25 prosecutors will be added to the Division. Moreover, the Department anticipates a 40% increase in prosecutor headcount in the Criminal Division’s Bank Integrity Unit, which prosecutes complex international criminal cases involving financial institutions and individuals who violate various federal statutes, including the Money Laundering Control Act, the Bank Secrecy Act, and economic and trade sanctions programs authorized by the International Emergency Economic Powers Act.
  • New Enforcement Tools. The Deputy Attorney General said that the Department is developing new tools and remedies to punish and deter corporate criminal misconduct. For the first time in DOJ history, corporate criminal resolutions have included mandated divestitures of lines of business, specific performance as part of restitution and remediation, and more tailored compensation and compliance requirements. Recent examples include the Antitrust Division’s deferred prosecution agreements with two pharmaceutical companies (covered here), where the Department required the companies to divest a product line that was a core part of the companies’ alleged price-fixing misconduct.
  • Increased Scrutiny of Compensation Systems. Earlier this year, the Criminal Division launched a Pilot Program Regarding Compensation Incentives and Clawbacks, which itself followed Deputy Attorney General Monaco’s focus on compensation in a September 2022 memo (covered here) and March 2023 revisions to the Criminal Division’s Evaluation of Corporation Compliance Programs guidance. In her speech, Deputy Attorney General Monaco signaled a continued focus on compliance systems, and she touted benefits that companies have achieved in recent resolutions where they have sought or obtained compensation clawbacks from individual wrongdoers.
  • More Changes to Come. With all of the policy changes coming out of the Biden Administration DOJ, there is a risk that policy-revision fatigue and confusion may set in, leaving companies to wonder when the dust may settle. Yet, Deputy Attorney General Monaco signaled that even more changes are on the horizon, and we expect that further revisions to voluntary self-disclosure programs, including the Antitrust Division’s leniency program, may be forthcoming in the nearer term.

If you have any questions regarding the material discussed in this client alert, please contact a member of our White Collar Defense and Investigations, Anti-Corruption, or Antitrust practices.

Photo of Steve Fagell Steve Fagell

Steve Fagell represents companies, boards of directors, and senior executives in government enforcement matters, internal investigations, and shareholder litigation. He focuses on criminal and civil regulatory matters presenting complex legal, political, and reputational risks. He routinely represents clients before the US Department of…

Steve Fagell represents companies, boards of directors, and senior executives in government enforcement matters, internal investigations, and shareholder litigation. He focuses on criminal and civil regulatory matters presenting complex legal, political, and reputational risks. He routinely represents clients before the US Department of Justice, Securities and Exchange Commission, and other law enforcement and regulatory agencies. Mr. Fagell has advised clients in the life sciences, financial services, defense, technology, energy, and manufacturing industries on a variety of white collar matters, including those relating to foreign bribery, corporate whistleblowers, insider trading, accounting fraud, banking, government contracting, export controls, and transnational tax issues.

Photo of Don Ridings Don Ridings

Don Ridings practice focuses on international arbitration, complex civil litigation, and anti-corruption compliance. He dvises clients on a range of compliance issues arising under the Foreign Corrupt Practices Act and other anti-bribery regimes. He counsels clients on proposed transactions, guides companies as they…

Don Ridings practice focuses on international arbitration, complex civil litigation, and anti-corruption compliance. He dvises clients on a range of compliance issues arising under the Foreign Corrupt Practices Act and other anti-bribery regimes. He counsels clients on proposed transactions, guides companies as they develop or strengthen their anti-corruption compliance programs and controls, develops and delivers tailored training programs, leads internal investigations, and represents clients before enforcement authorities. Over the past decade he has advised scores of companies and organizations from around the world representing nearly every major industry.

Photo of Jennifer Saperstein Jennifer Saperstein

Jennifer Saperstein practices in the areas of civil and criminal litigation and white collar defense and investigations, with a focus on anti-corruption issues and insurance coverage litigation. She regularly advises clients on anti-corruption laws, including the Foreign Corrupt Practices Act. She has conducted…

Jennifer Saperstein practices in the areas of civil and criminal litigation and white collar defense and investigations, with a focus on anti-corruption issues and insurance coverage litigation. She regularly advises clients on anti-corruption laws, including the Foreign Corrupt Practices Act. She has conducted multiple internal investigations in connection with potential violations of the Foreign Corrupt Practices Act, and advises clients on the creation and implementation of anti-corruption compliance programs. Ms. Saperstein also assists companies and private equity firms with anti-corruption due diligence reviews related to acquisitions.

Photo of Thomas Barnett Thomas Barnett

Thomas Barnett is co-chair of the firm’s Antitrust & Competition Law Practice Group. Mr. Barnett served as Assistant Attorney General in charge of the Justice Department’s Antitrust Division. He headed the Antitrust Division from 2005 to 2008, having previously served in the Division…

Thomas Barnett is co-chair of the firm’s Antitrust & Competition Law Practice Group. Mr. Barnett served as Assistant Attorney General in charge of the Justice Department’s Antitrust Division. He headed the Antitrust Division from 2005 to 2008, having previously served in the Division as Deputy Assistant Attorney General for Civil Enforcement from 2004 to 2005. He specializes in global antitrust and competition law practice and works closely with the firm’s white collar practice on criminal antitrust enforcement and investigative matters.

Photo of Anne Lee Anne Lee

Anne Lee, co-chair of the firm’s global Antitrust and Competition Law Practice Group, advises clients in complex antitrust litigation matters, strategic transactions, and government investigations. She represents clients before the DOJ and FTC on multi-jurisdictional mergers, competitor collaborations, and joint ventures, and she…

Anne Lee, co-chair of the firm’s global Antitrust and Competition Law Practice Group, advises clients in complex antitrust litigation matters, strategic transactions, and government investigations. She represents clients before the DOJ and FTC on multi-jurisdictional mergers, competitor collaborations, and joint ventures, and she has litigated cases at the trial and appellate levels in both state and federal courts. Ms. Lee also provides antitrust counseling on a wide range of business conduct and compliance issues. A recognized leader in the area, Ms. Lee has been named to the “40 Under 40” rankings of both The National Law Journal and Global Competition Review.

Photo of E. Kate Patchen E. Kate Patchen

Kate Patchen is partner and co-chair of both the firm’s Cartel Defense Practice Group and the firm’s Civil Antitrust Litigation Practice Group. With more than two decades of experience in global antitrust and competition law, she is a leading U.S. and globally recognized…

Kate Patchen is partner and co-chair of both the firm’s Cartel Defense Practice Group and the firm’s Civil Antitrust Litigation Practice Group. With more than two decades of experience in global antitrust and competition law, she is a leading U.S. and globally recognized antitrust and competition lawyer. Kate focuses her practice on government antitrust investigations, antitrust litigation, and antitrust compliance advice and training. Kate has worked on complex antitrust matters across numerous major industries, including technology, digital advertising, consumer products, and manufacturing.

Kate joined Covington following both a distinguished career in government and as a leader of the Competition and Litigation Department of a major Fortune 100 company. She served as the former Chief and Assistant Chief of the San Francisco Office of the Department of Justice Antitrust Division where she spent sixteen years investigating and litigating antitrust violations. During her time at the Division, she oversaw the Office’s civil and criminal antitrust enforcement programs, including criminal price-fixing, bid-rigging, and no-poach investigations, as well as civil conduct matters and merger review. Following her service in government, she spent several years as Director of Competition and Director of Litigation at one of the largest tech companies in the world where she advised on high-stakes litigation, government investigations, and provided competition legal advice globally. The breadth of Kate’s unique experience, and her insight on antitrust agency priorities, goals, and policies is a valuable asset to companies facing international, domestic, and multi-agency exposure.

Kate has a track record of success in both civil and criminal antitrust litigation, including prosecuting corporate and individual defendants in high-profile antitrust cases and defending a company in a high-profile monopolization case. She also served as a Special Assistant United States Attorney in the Western District of Washington and in the Eastern and Northern Districts of California where she successfully prosecuted and tried multiple federal criminal cases, including fraud and false-statement cases.

Kate is a non-governmental advisor to the International Competition Network, an advisor to the Executive Committee of the California Lawyer’s Association Antitrust and Unfair Competition Law Section, and a member of the American Bar Association’s Antitrust Section. Kate is also a regular speaker on antitrust panels and programs.

Photo of Benjamin Haley Benjamin Haley

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in Africa and is a chair of the firm’s broader Africa Practice. With deep experience representing clients before regulators in high-profile white collar and disputes matters and a history operating on the…

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in Africa and is a chair of the firm’s broader Africa Practice. With deep experience representing clients before regulators in high-profile white collar and disputes matters and a history operating on the ground across the continent, he helps clients assess and mitigate complex legal and compliance risks in Africa and other emerging markets.

Complementing his investigations and dispute resolution practice, Ben has a broad-based compliance advisory practice, helping clients proactively manage compliance risk in areas including anti-corruption, anti-money laundering, fraud, and data privacy.

Ben represents corporate and individuals clients in a wide range of investigations and disputes, including:

  • Investigations under the U.S. Foreign Corrupt Practices Act (“FCPA”).
  • Investigations into anti-money laundering, financial crimes, anti-terrorism, and international trade controls issues.
  • Securities fraud and accounting matters.
  • Board investigations and shareholder litigation.
  • Insurance recovery.

Ben also regularly advises clients on a range of regulatory compliance and corporate governance issues. His compliance advisory practice includes:

  • Performing risk and compliance program assessments.
  • Leading compliance reviews on business partners and assisting companies with third-party risk management processes.
  • Conducting forensic accounting reviews and testing and enhancing financial controls.
  • Advising on market entry, cross-border transactions, and pre-acquisition diligence and post-acquisition integration.
  • Assisting companies in designing, implementing, and maintaining best-in-class compliance programs.

In recent years, Ben has steered a number of clients to successful resolutions and declinations in complex FCPA and corporate fraud matters with the U.S. Department of Justice and Securities Exchange Commission. In his advisory practice, Ben has served as lead compliance counsel on a number of major M&A transactions. He has developed special expertise assisting clients in leveraging technology in their compliance programs, including assisting one of the world’s largest consumer goods companies in the design and implementation of an award-winning compliance data analytics and monitoring system.

Ben has been described by the Chief Compliance Officer of one of his clients as “[a]n outstanding senior lawyer and advisor,” and “a guiding light for all things compliance advisory in Africa,” whose “advice is crystal clear, covers all angles and is business friendly.”

Photo of Adam Studner Adam Studner

Adam M. Studner’s practice focuses on white collar criminal matters, internal corporate investigations, and compliance counseling. He regularly represents clients in Foreign Corrupt Practices Act (“FCPA”) and corruption-related internal investigations and risk assessments, designs and implements compliance programs, conducts transactional anti-corruption diligence, and…

Adam M. Studner’s practice focuses on white collar criminal matters, internal corporate investigations, and compliance counseling. He regularly represents clients in Foreign Corrupt Practices Act (“FCPA”) and corruption-related internal investigations and risk assessments, designs and implements compliance programs, conducts transactional anti-corruption diligence, and responds to and defends against government investigations and prosecutions on behalf of both business entities across industries and individuals. Adam is an experienced witness interviewer and has been the lead associate on numerous international investigations regarding allegations of corruption.

Adam also maintains an active pro bono practice.

Photo of Ashley Nyquist Ashley Nyquist

Ashley Nyquist guides clients through their most sensitive, high-stakes matters, including government investigations, independent investigations, and internal investigations into issues posing enterprise-level risk.

Ashley regularly represents clients — from the largest multi-national companies to individuals — in connection with government and internal investigations…

Ashley Nyquist guides clients through their most sensitive, high-stakes matters, including government investigations, independent investigations, and internal investigations into issues posing enterprise-level risk.

Ashley regularly represents clients — from the largest multi-national companies to individuals — in connection with government and internal investigations into alleged fraud, corruption, and other criminal conduct or issues of regulatory concern. She has considerable experience navigating complex, multi-dimensional matters involving parallel criminal, civil, and reputational risks.

Ashley routinely handles highly sensitive reviews and investigations related to workplace misconduct and institutional culture, including:

  • Leading internal investigations for corporate and non-profit clients related to allegations of sexual misconduct, harassment, discrimination, and other misconduct by executives and other leaders;
  • Conducting independent investigations into allegations of sexual misconduct; and
  • Guiding clients through proactive workplace culture assessments designed to mitigate risk.

Ashley has worked with clients from a variety of sectors and industries, including technology, consumer products, food processing, financial services, life sciences, and education.

Ashley’s pro bono work includes representing individual criminal defendants in state court.

Before practicing law, Ashley taught high school English in rural China.

Photo of Kendra Mells Hood Kendra Mells Hood

Kendra Hood helps clients navigate their most sensitive, high stakes matters. She represents corporations and individuals in connection with investigations of alleged corruption, fraud, and other issues of regulatory concern before the U.S. Department of Justice, Securities and Exchange Commission, Congress, and other…

Kendra Hood helps clients navigate their most sensitive, high stakes matters. She represents corporations and individuals in connection with investigations of alleged corruption, fraud, and other issues of regulatory concern before the U.S. Department of Justice, Securities and Exchange Commission, Congress, and other U.S. regulators. She has considerable experience navigating complex matters involving parallel civil, criminal, and reputational risks.

Kendra also advises companies on compliance best practices and enforcement risks arising under the Foreign Corrupt Practices Act. Her compliance practice includes helping multinational entities develop and test the robustness of their compliance programs, conduct risk assessments, conduct transactional and third party due diligence, navigate post-acquisition compliance integration projects, and deliver compliance training. For entities with mature compliance programs, Kendra conducts independent compliance program assessments that allow clients to benchmark their compliance programs against peer companies and regulator expectations. Kendra has worked with clients from a variety of industries, including oil and gas, life sciences, consumer products, defense and technology, and sports and gaming.

Kendra maintains an active pro bono practice representing individual criminal defendants in state and federal court.

Photo of Kyle W. Chow Kyle W. Chow

Kyle W. Chow is New York-based litigator with a focus on antitrust litigation and investigations and intellectual property litigation. He has experience representing clients in complex, high-stakes litigation and investigations matters, including in federal district court and before the Federal Trade Commission and…

Kyle W. Chow is New York-based litigator with a focus on antitrust litigation and investigations and intellectual property litigation. He has experience representing clients in complex, high-stakes litigation and investigations matters, including in federal district court and before the Federal Trade Commission and state antitrust regulators.