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 co-chairs the firm’s white collar defense and investigations practice, and he is widely recognized as one of the nation’s leading white collar practitioners.

As a former senior official in the Criminal Division at the U.S. Department of Justice, Steve represents multinational…

Steve Fagell co-chairs the firm’s white collar defense and investigations practice, and he is widely recognized as one of the nation’s leading white collar practitioners.

As a former senior official in the Criminal Division at the U.S. Department of Justice, Steve represents multinational companies and senior executives in criminal and civil investigations by the Justice Department, the U.S. Securities and Exchange Commission, and other U.S. regulators.

Steve is a two-time Law360 “White Collar MVP” winner (in 2023 and 2020), an award that recognizes the most outstanding practitioners in the field each year nationwide. Law360 has highlighted the “big wins,” which include five corporate declinations from DOJ or the SEC in a single year, and “impressive, relatively painless resolutions” that Steve has obtained for “prominent corporate clients.” Chambers USA has long ranked him as a leading white collar lawyer in Washington, DC and as a nationwide FCPA expert. Clients have described Steve in Chambers as “the ultimate regulator whisperer,” adding that he is “extremely practical and a phenomenal problem solver on some of the thorniest legal issues you can imagine,” “extremely good,” and “one of the smartest guys around” who “doesn’t miss a beat.” Earlier in his career, Global Investigations Review recognized Steve as the top investigations practitioner (45 and under) in the United States, noting that he has an “eminent name for both corporations and individuals on matters of high-stakes civil and criminal enforcement.”

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Photo of Don Ridings Don Ridings

Don Ridings co-chairs Covington’s Anti-Corruption, Business & Human Rights, and ESG practices.

As co-chair of the firm’s global Anti-Corruption Practice Group, Don leads a team of compliance and investigation lawyers based in the U.S., Europe, Asia, the Middle East, and Africa. For more…

Don Ridings co-chairs Covington’s Anti-Corruption, Business & Human Rights, and ESG practices.

As co-chair of the firm’s global Anti-Corruption Practice Group, Don leads a team of compliance and investigation lawyers based in the U.S., Europe, Asia, the Middle East, and Africa. For more than 10 years, he has been recognized as a leading Foreign Corrupt Practices Act (FCPA) practitioner by Chambers Global and Chambers USA.

Don has advised clients in nearly every major industry on compliance issues arising under the FCPA and other anti-bribery regimes. He has served as outside anti-corruption counsel to dozens of Fortune 500 companies. Don advises clients on compliance risks in investment transactions, design and help implement compliance programs, and counsel clients on a broad range of anti-corruption and other compliance risks. For companies with mature compliance programs, he leads independent compliance program assessments that allow companies to benchmark their compliance programs against peer companies and regulator expectations.

Don has led dozens of internal investigations arising from conduct in Africa, Asia, Europe, Latin America, the Middle East, and North America. He represent clients before the U.S. Department of Justice and Securities and Exchange Commission, where I have secured several non-public declinations.

As co-chair of the firm’s Business & Human Rights and ESG practices, Don advises clients on the evolving legal regimes related to the corporate responsibility to respect human rights. He counsels clients on issues relating to supply chain due diligence and responsible sourcing, human rights due diligence in investment transactions, integrating human rights elements into existing compliance programs, NCP and other non-judicial dispute resolution processes, and responding to demands from NGOs, investors, regulators, and other stakeholders.

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Photo of Jennifer Saperstein Jennifer Saperstein

Co-chair of Covington’s Anti-Corruption practice, Jennifer Saperstein is an experienced compliance counselor who advises clients on anti-corruption, anti-bribery, and ethics issues. She is also a key member of the firm’s Institutional Culture and Social Responsibility practice.

Named a Compliance “Rising Star” by Law360…

Co-chair of Covington’s Anti-Corruption practice, Jennifer Saperstein is an experienced compliance counselor who advises clients on anti-corruption, anti-bribery, and ethics issues. She is also a key member of the firm’s Institutional Culture and Social Responsibility practice.

Named a Compliance “Rising Star” by Law360, Jennifer frequently conducts risk assessments and compliance program assessments, and develops anti-corruption compliance programs for clients across a wide range of industries. She has particular experience implementing technology-based solutions to enhance compliance programs, including the use of data analytics and systems for third party management. As part of her practice, Jennifer regularly assists companies with anti-corruption due diligence and compliance integration in connection with acquisitions, asset purchases, joint ventures, and other investment transactions. She regularly coordinates cross-cutting compliance projects to help companies build and improve their compliance programs across areas of regulatory expertise, bringing together teams of regulatory experts to provide integrated advice and implement compliance program best practices. Jennifer also frequently leads compliance workstreams in connection with significant government enforcement matters to help mitigate the impact of criminal and civil investigations and enforcement actions.

Drawing on her experience conducting risk and compliance program assessments, Jennifer advises clients in matters involving institutional culture and social responsibility. In recent years, she has assisted boards committees and management of large institutions in conducting complex investigations regarding institutional racism and diversity, equity, and inclusion (DEI) practices. She is often called upon to assist with investigations of misconduct, workplace culture assessments, and civil rights audits.

Jennifer has been described by the Chief Compliance Officer at one of her Fortune 500 clients as “the rare outside counsel who really understands what it is like to work in-house at a company where we have to balance risk with business needs.”

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Photo of Aaron Lewis Aaron Lewis

As a partner and co-chair of Covington’s White Collar Defense and Investigations practice group, Aaron Lewis represents businesses, boards of directors, and individuals in sensitive, high-stakes government investigations, internal investigations, and regulatory enforcement matters.

He has advised clients facing alleged criminal and civil…

As a partner and co-chair of Covington’s White Collar Defense and Investigations practice group, Aaron Lewis represents businesses, boards of directors, and individuals in sensitive, high-stakes government investigations, internal investigations, and regulatory enforcement matters.

He has advised clients facing alleged criminal and civil violations of the False Claims Act (FCA) and the Foreign Corrupt Practices Act (FCPA), as well as allegations of public corruption, export controls violations, obstruction of justice, and espionage. Aaron’s clients have included companies and independent board committees in the aerospace and defense, automotive, technology, entertainment, and retail industries and he routinely leads internal investigations of alleged misconduct or compliance failures, including several investigations involving allegations of ineffective internal controls and dysfunctional workplace cultures. He returned to Covington in 2015 after six years of service in the Department of Justice (DOJ), first as Counsel to Attorney General Eric Holder in Washington, and later as an Assistant United States Attorney in Los Angeles.

During his service in the Justice Department, Aaron advised the Attorney General on a range of enforcement issues, including intellectual property protections, national security matters and civil rights. He worked closely with senior officials at the White House, the Justice Department, and several law enforcement agencies, including the FBI and DHS. As an Assistant United States Attorney, most recently in the National Security Section, Aaron investigated and prosecuted cases involving thefts of trade secrets, export control violations, and computer network intrusions. He also prosecuted cases involving bank fraud, false statements, and mail fraud. An experienced trial and appellate lawyer, Aaron has tried several cases to verdict, and argued before the Ninth Circuit Court of Appeals.

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Photo of Thomas Barnett Thomas Barnett

Thomas Barnett is a partner in the Washington, DC office and co-chair of the firm’s Antitrust & Competition Law Practice Group. Tom served as Assistant Attorney General in charge of the Justice Department’s Antitrust Division. He headed the Antitrust Division from 2005 to…

Thomas Barnett is a partner in the Washington, DC office and co-chair of the firm’s Antitrust & Competition Law Practice Group. Tom 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.

During his tenure at the Department of Justice, Tom:

Oversaw the review of all mergers investigated by the Division and supervised more than 30 cases filed in federal district court.

Was involved in some of the largest and most complicated criminal matters in the Division’s history, including investigations and prosecutions that involved coordination with multiple competition authorities in other jurisdictions.

Led an active competition advocacy program that included numerous amicus briefs filed with the U.S. Supreme Court on antitrust issues and comments to a wide range of federal and state agencies.

Argued before the U.S. Supreme Court as amicus on behalf of the United States in Bell Atlantic Corp. v. Twombly.

Testified several times before Congressional committees.

Worked with international antitrust authorities throughout the world and served in leadership positions in key international competition organizations, such as chairing the Working Party on International Cooperation and Enforcement of the OECD Competition Committee and serving on the Steering Committee of the International Competition Network.

Received the Edmund Randolph Award, the U.S. Department of Justice’s highest honor, for his service in the Division.

Prior to 2004, Mr. Barnett was a leader in the firm’s Antitrust & Consumer Law Practice Group. He also served as an adjunct professor at Georgetown University Law Center, teaching a course on antitrust and intellectual property issues in sports in 2001 and 2003, and as a co-teacher of an advanced antitrust seminar at the University of Virginia Law School multiple times between 1991 and 2004.

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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. Anne also provides antitrust counseling on a wide range of business conduct and compliance issues. A recognized leader in the area, Anne has been named to the “40 Under 40” rankings of both The National Law Journal and Global Competition Review.

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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.

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Photo of Benjamin Haley Benjamin Haley

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in the Middle East and 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…

Ben Haley leads the firm’s White Collar and Anti-Corruption Practice in the Middle East and 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 in emerging markets, he helps clients assess and mitigate a wide range of complex legal and compliance risks.

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, trade controls, 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 sanctions and export control 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 and investment 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.”

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Photo of Adam Studner Adam Studner

Adam Studner’s practice focuses on representing companies, individuals, and boards of directors in their most sensitive, high-stakes white collar criminal and civil investigations and defense matters, including government-facing and internal investigations into issues posing enterprise-level risk. Adam regularly represents clients in connection with…

Adam Studner’s practice focuses on representing companies, individuals, and boards of directors in their most sensitive, high-stakes white collar criminal and civil investigations and defense matters, including government-facing and internal investigations into issues posing enterprise-level risk. Adam regularly represents clients in connection with allegations of corruption, fraud, obstruction of justice, accounting improprieties, and other issues. With deep experience representing both multinational corporations and individuals, Adam regularly leads complex, multi-dimensional investigations posing parallel criminal, civil, regulatory, and reputational risks often involving the U.S. Department of Justice, the U.S. Securities and Exchange Commission, and other U.S. and foreign regulators.

Adam also maintains a robust compliance practice and routinely assists clients in developing, implementing, evaluating, and testing the efficacy of their global compliance programs across a range of regulatory areas, including through conducting risk assessments and compliance program assessments. He also regularly counsels clients on third party risk management, transactional due diligence, and other compliance-sensitive areas.

Adam has worked with clients from a variety of sectors and industries, including life sciences, technology, consumer products, financial services, entertainment, manufacturing, automotive, and aviation, in matters involving regulatory scrutiny and potential exposure across jurisdictions. His ability to navigate multi-faceted and cross-border challenges makes him a trusted advisor in high-risk, high-profile investigations and compliance matters.

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Photo of Ashley Nyquist Ashley Nyquist

Ashley Nyquist guides clients through their most sensitive, high-stakes matters, including government investigations and enforcement matters, 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 allegations…

Ashley Nyquist guides clients through their most sensitive, high-stakes matters, including government investigations and enforcement matters, 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 allegations of fraud, corruption, obstruction, and other criminal conduct or issues of regulatory concern, as well as other unique, crisis-level issues. She has considerable experience navigating complex, multi-dimensional matters involving parallel criminal, civil, and reputational risks.

Ashley also 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.

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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.

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Photo of Kyle W. Chow Kyle W. Chow

Kyle W. Chow is New York-based litigator with a focus on antitrust litigation and investigations. Kyle is a member of the the firm’s Cartel Defense Practice Group and the firm’s Civil Antitrust Litigation Practice Group. He has experience representing clients in complex, high-stakes…

Kyle W. Chow is New York-based litigator with a focus on antitrust litigation and investigations. Kyle is a member of the the firm’s Cartel Defense Practice Group and the firm’s Civil Antitrust Litigation Practice Group. 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.

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