NEW YORK: An Introduction to Litigation: Specialist Firms in White-Collar Crime & Government Investi
In the last four months, the Trump administration has made its white-collar enforcement priorities clear, instituting policies and reforms that align with the administration’s agenda and causing companies to reassess their compliance and reporting systems to conform with the government’s shifted objectives. The SEC has dropped several open crypto-related investigations and lawsuits while launching the Crypto Task Force. The DOJ has temporarily paused enforcement of the Foreign Corrupt Practices Act (FCPA). Apart from the initiatives from the executive, the Supreme Court held in SEC v. Jarkesy that the SEC must bring securities fraud claims against defendants seeking civil penalties in federal court, and is currently considering whether to hear Alpine Securities’ case challenging the constitutionality of the Financial Industry Regulatory Authority (FINRA) wielding its enforcement powers. These developments have, and will continue to have, a wide-ranging impact on the future of enforcement.
SEC’s and DOJ’s Approach to Crypto
Government agencies have completely changed their approach to crypto assets to help President Trump deliver on his pledge to “make America the crypto capital of the world”. The SEC launched the Crypto Task Force, headed by Commissioner Hester Peirce, to develop “a comprehensive and clear regulatory framework for crypto assets”, dropped registration-based lawsuits initiated by the Biden administration, and killed multiple investigations related to companies’ crypto-related activity. The agency has also proclaimed that certain types of meme coins, proof-of-work mining activities, and stablecoins do not involve the offer and sale of securities under federal securities laws, a dramatic shift from the Biden administration’s approach to crypto.
On April 7, 2025, the DOJ released a memorandum stating that it will “no longer pursue litigation or enforcement actions that have the effect of superimposing regulatory frameworks” in connection with crypto, but that it will continue to investigate and prosecute “conduct victimizing investors” like embezzlement and fraud. Caroline Pham, the Acting Chairman of the Commodity Futures Trading Commission, directed the agency to adhere to the DOJ’s policy on digital assets enforcement priorities.
Rollback of Anti-Money Laundering and Anti-Corruption Policies
The Trump administration has announced that it will largely stop enforcing the Corporate Transparency Act (CTA), which aims to curb money laundering through enforcement companies. In addition, President Trump signed an executive order on February 10, 2025 instructing the DOJ to pause enforcement of the FCPA, which criminalizes the bribery of foreign government officials, for 180 days. This executive order came days after U.S. Attorney General Pamela Bondi issued a memorandum instructing the DOJ to prioritize drug cartels and transnational crime organizations in FCPA enforcement.
While the federal government evaluates its position on FCPA enforcement, states may step up enforcement of their anti-bribery laws. In fact, on April 2, 2025, California Attorney General Rob Bonta issued a Legal Advisory to businesses reminding them that bribing foreign government officials remains illegal under California law, which could compel other states to follow suit.
Jarkesy Curtails Administrative Enforcement Proceedings
On June 27, 2024, the Supreme Court held that the Seventh Amendment requires the SEC, where it seeks civil penalties though bringing a securities fraud claim against a defendant, to do so in a federal court rather than bringing enforcement proceedings before its administrative law judges (ALJs). This decision is likely a significant blow to the SEC, which typically has a huge advantage when litigating before its ALJs: the SEC won approximately 90% of its matters before ALJs compared with approximately 69% of cases litigated in federal court, according to a 2017 article published in the Villanova Law Review. Now, individuals and businesses have a more equitable forum in which to contest securities fraud claims brought by the SEC.
The Supreme Court currently has yet another opportunity to curtail an enforcement agency’s enforcement power. Earlier this year, broker Alpine Securities submitted a petition for a writ of certiorari to the Supreme Court arguing that FINRA’s ability to expel members violates the private non-delegation doctrine, the Appointments Clause, and other provisions of the Constitution. Should the Supreme Court rule in its favor, the changes to the FINRA regulatory framework would be fundamental.
DOJ’s Revised White-Collar Enforcement Priorities and Policies
DOJ has also revised its priorities for corporate criminal enforcement under the Trump administration and issued a number of updated policy documents by way of the “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime” enforcement plan (the “Enforcement Plan”) issued on May 12, 2025.
The Enforcement Plan states that the DOJ’s new white-collar enforcement regime will be guided by the tenets of focus, fairness, and efficiency. The Enforcement Plan first identifies ten “high-impact areas” of focus for the DOJ and lists as top priorities investigating and prosecuting crimes involving waste, fraud, and abuse in U.S. markets and government programs and trade and customs fraud. To reinforce the government’s stated priorities in these areas, the DOJ has revised the Corporate Whistleblower Awards Pilot Program to expand the qualifying program areas.
Under the tenet of “fairness”, the Enforcement Plan announces revisions to the DOJ Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP), which will likely result in more declinations and broader applicability of the CEP in practice. Specifically, the revised CEP shifts from a presumption of declination to a more definitive statement that, upon satisfying the enumerated criteria, a company “will” receive a declination, and establishes a new “near miss” category of voluntary self-disclosures where a company will receive a non-prosecution agreement in situations where the company acted in good faith by self-reporting but its disclosure did not qualify as a voluntary self-disclosure, or in certain matters involving aggravating circumstances. The updated CEP also removes the requirements that formerly needed to be met in order for a company to receive a CEP declination in situations where aggravating circumstances are present, instead giving prosecutors full discretion to recommend a declination in such circumstances.
Consistent with the administration’s third focus on efficiency, the Enforcement Plan states that compliance monitors will be used more sparingly, and when monitorships are imposed, they will be “narrowly tailored to achieve the necessary goals while minimizing expense, burden, and interference with the business”. The Enforcement Plan also includes the “Memorandum on Selection of Monitors in Criminal Division Matters”, which provides guidance on how the DOJ should assess and oversee budgets and costs associated with monitorships and suggests that the imposition of monitors is likely disfavored by the administration.
The DOJ’s Enforcement Plan allows companies and practitioners alike to understand the white-collar enforcement priorities of the current administration, but how the DOJ will implement its updated policies and pursue its priorities is to be seen. The revised policies reflect an evolution of existing policies, minimizing use of corporate monitorships and providing companies with additional opportunities to reduce liability by proactively addressing internal criminal conduct.