White Collar Enforcement Priorities and Challenges: Discussions from “Views at the Top”

On December 11, 2024, the Women’s White Collar Defense Association (WWCDA) hosted “Views from the Top,” featuring the following government officials from the DOJ, SEC, CFTC, and FTC discussing current and future enforcement priorities and challenges:

• Lorinda Laryea (Principal Deputy, Fraud Section, DOJ)
• Paul Hayeck (Deputy Director, Division of Enforcement, CFTC)
• Amanda Liskamm (Director, Consumer Protection Branch, DOJ)
• Tara Koslov (Deputy Director, Bureau of Competition, FTC)
• Manish Kumar (Deputy Assistant Attorney General, Antitrust Division, DOJ)
• Mark Cave (Assistant Director, Division of Enforcement, SEC)

The panelists focused their remarks on the following three topics: (1) enforcement trends and priorities from this past year, (2) compliance and guidance, and (3) use of artificial intelligence. They also uniformly shared their view that, in 2025, they fully expected their respective agencies to remain steadfast in their commitment to their respective missions.

The panelists thoughts on the three areas of focus are summarized below:

Year in Review: Enforcement Trends and Priorities

DOJ, Fraud Section

Lorinda Laryea highlighted that the DOJ’s Healthcare Fraud, Market Integrity and Major Frauds (MIMF), and Foreign Corrupt Practices Act (FCPA) Units were very busy this past year. The FCPA Unit notably focused its enforcement efforts on prosecuting FCPA violations within the commodities space. She emphasized that this year witnessed a record-breaking four FCPA trials, marking an unprecedented level of enforcement activity. The Fraud Section has also observed a significant increase in victim losses, with estimated losses escalating from $28 million to $40 million.

CFTC

Paul Hayeck highlighted that the CFTC prioritized market integrity, consumer retail fraud, compliance enforcement, and benchmark manipulation cases this past year. Recent successful DOJ prosecutions and resolutions in the area of spoofing served as a powerful deterrent, slowing down such conduct, and reducing the number of spoofing cases for the CFTC. In the retail fraud space, the CFTC actively pursued romance scams, cryptocurrency related frauds, and Ponzi schemes. The CFTC also intensified its scrutiny of regulated entities, with a particular focus on swap dealers’ adherence to reporting obligations.

DOJ, Consumer Protection Branch

Amanda Liskamm highlighted that the DOJ’s Consumer Protection Branch prioritized safeguarding children online, addressing the ongoing opioid crisis by prosecuting prescription opioid-related offenses, enforcing the Food, Drug, and Cosmetic Act (FDCA) against pharmaceutical, medical device, and food companies for violations of safety and labeling regulations, and combating consumer fraud (including elder fraud). A notable new initiative this past year involved aggressively targeting the illicit manufacture and distribution of counterfeit pills by chemical companies, e-commerce platforms, and social media platforms.

FTC

Tara Koslov highlighted that the FTC’s Bureau of Competition prioritized two key areas of enforcement: merger enforcement and conduct matters. On October 10, 2024, the FTC unanimously adopted significant amendments to the Hart-Scott-Rodino (HSR) premerger notification rules, which will substantially expand filing requirements for parties when effective. For more information on the HSR rule, please see our previous client alert here. Regarding conduct matters, the Bureau focused its efforts on challenging practices that drive up healthcare costs and addressing allegedly anticompetitive behavior by dominant social media platforms.

DOJ, Antitrust Division

Manish Kumar highlighted that, on the civil enforcement front, the DOJ’s Antitrust Division brought a landmark monopolization case against a major search engine, marking the first such case in two decades and achieving a significant victory in court after a 50-year hiatus in successful monopolization trials. The Division also blocked the merger of two major airlines. Kumar noted that these cases signal a reinvigoration of the enforcement of antitrust laws.

On the criminal enforcement front, Kumar highlighted that the DOJ’s Antitrust Division secured more than 60 convictions against individuals and corporations this past year. The Division applied creative legal theories to its cases and resolutions, such as the divesture of business units implicated in antitrust violations.

SEC

Mark Cave highlighted that the SEC’s Division of Enforcement focused on issuer disclosure and financial fraud (with a particular focus on misconduct by auditors or false statements made in financial filings), broker-dealer compliance cases, investment broker fraud, insider trading, Ponzi schemes, cryptocurrency enforcement, and relationship scams. In the crypto world, Cave argued that the Division of Enforcement focused its efforts on market manipulation schemes that contributed to the collapse of certain cryptocurrencies as well as pyramid and multilevel marketing schemes operating within the crypto space. The Division of Enforcement also focused on combating “pig butchering” romantic scams involving fraudsters cultivating romantic relationships with potential investors to gain their trust and subsequently extorting them for substantial sums of money.

Cave touted record disgorgement and penalties collected, with more than 400 cases brought by the SEC.

Compliance and Guidance

DOJ, Fraud Section

Lorinda Laryea emphasized the importance of companies tailoring their compliance programs to their specific risk profiles. She suggested that companies should focus on effective data management, particularly to address the preservation and retention of both traditional data, such as emails and documents, and emerging forms of communication, including cellphone data and ephemeral messaging. For more information regarding guidance on emerging forms of communication, please see our client alert. Laryea also stressed the importance of rigorously testing compliance enhancements, such as whistleblower hotlines and programs, to ensure their effectiveness in mitigating identified risks. She further noted that the Fraud Section places significant emphasis on the development of robust compensation compliance programs. This focus was reflected in the recent release of the DOJ’s report on the Pilot Program on Compensation Incentives and Clawbacks and was consistently emphasized throughout recent DOJ resolutions. For more information on the DOJ’s Pilot Program on Compensation Incentives and Clawbacks, please see our client alert.

CFTC

Paul Hayeck highlighted that the CFTC issued guidance on its enforcement policies this past year. This guidance outlines the CFTC’s expectations regarding self-reporting, remediation, and cooperation in the event of potential violations. He noted that recent CFTC enforcement orders serve as illustrative case studies, highlighting both compliant and non-compliant conduct (e.g., preserving WhatsApp messages versus allowing deletion). For more information on the guidance, please see our client alert. Hayeck also stated that the CFTC is aiming to empower companies to proactively address potential issues and avoid the need for costly monitors or independent compliance consultants, which the CFTC may ultimately require in egregious cases.

DOJ, Consumer Protection Branch

 Amanda Liskamm highlighted that the DOJ Consumer Protection Branch has enhanced its compliance and guidance efforts by establishing a new Senior Counsel for Compliance. This role oversees the development and implementation of compliance requirements in all resolutions and serves as a liaison for companies with ongoing reporting obligations, strengthening the Branch’s ability to ensure effective remediation and compliance.

FTC

Tara Koslov highlighted that the Bureau of Competition has focused on compliance around HSR filings, emphasizing the need for companies to have specialized HSR counsel to ensure filing accuracy. While the FTC is a purely civil agency, Koslov noted that the FTC is closely monitoring misconduct that may warrant referral to DOJ Antitrust Criminal Enforcement.

DOJ, Antitrust Division

Manish Kumar highlighted that the DOJ’s Antitrust Division recently updated its guidance for corporations, particularly focusing on the evolving legal landscape surrounding artificial intelligence (AI) and ephemeral messaging applications. For more information about the updated guidance, please see our client alert here. Kumar also noted that the Division continues to observe a healthy uptake of its longstanding Voluntary Disclosure Program.

SEC

Mark Cave asserted that the Division of Enforcement has placed significant emphasis on encouraging cooperation, particularly early reporting, timely remediation, and full cooperation in its recent enforcement orders.

Use of Artificial Intelligence

DOJ, Fraud Section

 Lorinda Laryea highlighted that the Fraud Section incorporated new guidance within the Evaluation of Corporate Compliance Programs (ECCP), specifically addressing AI. This revised ECCP outlines a series of critical questions for companies to consider in relation to their AI usage, including the inherent trustworthiness and reliability of the technology, its potential for generating bias, and the human oversight mechanisms employed to ensure compliance with relevant laws. For more information on the guidance, please see our client alert.

CFTC

Paul Hayeck highlighted that, given the immense volume of market and trading data it receives daily, the CFTC is exploring the utilization of AI-powered tools to analyze this data and identify potential instances of misconduct, particularly in the context of spoofing and other forms of market manipulation.

DOJ, Consumer Protection Branch

Amanda Liskamm highlighted that the Consumer Protection Branch established a new senior counsel for emerging technologies. This position focuses on addressing the misuse of AI, including investigating and prosecuting individuals and entities that facilitate the creation and dissemination of AI-generated deepfakes. The senior counsel also will focus on holding accountable companies that allow its platforms or services to be exploited for AI-driven fraud.

FTC

Tara Koslov highlighted that the FTC is particularly concerned about situations where access to and control over AI-generated data are highly concentrated, potentially stifling innovation and hindering competition. She also noted that the Bureau of Compliance is actively investigating how AI technologies may be employed to facilitate traditional anticompetitive conduct.

DOJ, Antitrust Division

Manish Kumar highlighted that the Antitrust Division is actively exploring the responsible and effective integration of AI-powered tools into its investigative and prosecutorial processes.

SEC

 Mark Cave warned that the SEC is focused on enforcement actions against entities that have made what he termed misleading claims regarding their AI utilization. He also said that the SEC has observed the increasing exploitation of AI to further investment scams, where fraudsters utilize AI-powered tools to refine their scripts and enhance the authenticity of their conversations.

Cave also noted that the Enforcement Division is using AI-powered tools itself in its investigations.

Clients are advised to carefully review the compliance trends and priorities discussed by the panelists. This proactive approach will enable clients to effectively navigate the evolving regulatory landscape and minimize compliance risks.

We thank the WWCDA for this informative event and Hartley West for organizing and moderating.