UK companies should be aware of the increasing focus on corporate culture by regulators on both sides of the Atlantic.

By Nathan H. Seltzer, David Berman, Stuart Alford QC, Christopher M. Ting, and Nell Perks

In a recent speech that has garnered significant attention, US Deputy Attorney General Lisa Monaco highlighted several important changes in how the US Department of Justice (DOJ) will pursue corporate crime during the Biden Administration. (Read Latham’s in-depth Client Alert analysing the speech and its potential impact, and Latham’s blog post highlighting matters of particular relevance to UK PLCs.)

This post highlights the DOJ’s particular emphasis on the importance of “corporate culture”.

The priorities will impact non-US companies who may face a US DOJ with a renewed emphasis on combating corporate crime.

By Stuart Alford QC, Nathan H. Seltzer, and Christopher M. Ting

In a recent speech that has garnered significant attention, the Deputy Attorney General of the United States, Lisa Monaco, highlighted several important changes regarding how the US Department of Justice (DOJ) will pursue corporate crime during the Biden Administration. Latham’s in-depth analysis of the speech and its potential impact can be found here.

In addition to reinforcing prior statements that the Biden Administration will prioritise the prosecution of corporate and white collar crime, the speech touched on several areas that may be of particular relevance to UK and other non-US companies. This blog post highlights some of those areas.

M&A deal teams should take note of heightened scrutiny of HR and employment practices by antitrust enforcers in the US and Europe.

By Richard Butterwick, David Little, Elizabeth Prewitt, Sarah Gadd, Joshua Chalkley, Anuj Ghai, Catherine Campbell, and Peter Citron

No-poach, non-solicitation, and wage-fixing agreements — arrangements between companies seeking to agree wages, or prevent or limit the hiring of each other’s employees that are not ancillary and narrowly-tailored to a legitimate transaction such as an M&A deal or joint venture — can lead to significant fines and even criminal sanctions, as well as private damages litigation. Parental liability for European antitrust failings by a group company can arise even in the case of a minority stake, and even if the parent company had no involvement in or awareness of the wrongdoing.

Buyout firms and portfolio companies beware increased interest in no-poach and wage-fixing agreements from antitrust enforcers in the US and Europe.

By Tom Evans, David LittleDavid WalkerElizabeth Prewitt, Sarah Gadd, Joshua Chalkley, Anuj Ghai, Catherine Campbell, and Peter Citron

Buyout firms and portfolio companies should take note of heightened scrutiny of HR and employment practices by antitrust enforcers, both in the US and in Europe. No-poach and wage-fixing agreements — arrangements between companies seeking to agree wages, or prevent or limit the hiring of each other’s employees — can lead to significant fines and even criminal sanctions, as well as private damages litigation. Parental liability for European antitrust failings can arise even in the case of a minority stake, and even where the buyout firm had no involvement in or awareness of the wrongdoing.

The DOJ’s recently updated guidance poses helpful questions for UK corporates evaluating the effectiveness of their internal compliance programmes.

By Stuart Alford QC, Erin Brown Jones, and Nathan H. Seltzer

It is well known that a corporate’s failure to prevent offences can be answered with a defence of “adequate procedures” in a case of bribery or “reasonable procedures” in a case of failure to prevent the facilitation of tax evasion. However, with no case law to aid comprehension of what “adequate” or “reasonable” mean, UK corporates are forced to seek answers elsewhere.

The UK government has issued guidance alongside both the Bribery Act 2010 and the Criminal Finances 2017, and these documents remain the principal source for interpreting those acts. However, UK companies looking to understand the wider expectations of law enforcement — particularly companies that operate in multiple jurisdictions — may find useful the US Department of Justice’s (DOJ’s) updated guidance “Evaluation of Corporate Compliance Programs” and recent comments from Assistant Attorney General Brian Benczkowski introducing the updated guidance, which replaces similar DOJ guidance issued in 2017.