The announcement that San Francisco private company Hampton Creek faces an SEC inquiry related to their alleged “buyback” program of vegan mayo comes as no shock. See reporting on Bloomberg. As soon as the facts were initially reported it seemed only a matter of time until the regulators, who have been looking for a poster child (or rather, a whole class of poster children) of private company enforcement in the Bay Area, swooped in.
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We noted with interest the latest moves by some Bay Area tech giants to permit their employees to sell restricted stock to help them realize the stock value as part of their compensation: See New York Times reporting here. It should come as no surprise that private company employees in our tech economy rely on their potential restricted stock value as an important part of their compensation package, and also their decision whether to work for, or stay working for, one of the “hot” pre-IPO companies (which are legion in Northern California). What may surprise private companies is that this kind of restricted stock sale by employees creates a very easy “in” for the SEC to bring a case should any hidden compliance failures or fraud later be revealed.
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Every day corporate entities and individuals in some parts of the world provide payments to foreign officials in exchange for business favors. While it may be a common feature of business in these places, this kind of activity is illegal under the Foreign Corrupt Practices Act (FCPA), which criminalizes various acts of bribery and related accounting fraud. The consequences for failing to comply with the FCPA are severe, and ensuring compliance can be especially difficult for start-up or relatively young companies growing rapidly and expanding into foreign markets before they can institute robust compliance systems.
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When the Volkswagen emissions scandal hit the press last year, we wondered which agency would manage the subsequent investigations. We are still waiting on the car company’s plan to remedy the emissions testing software and waiting to see if criminal charges will be filed—and if so, who specifically will be in the DOJ’s criminal crosshairs (DOJ filed a mammoth civil suit in January). The DOJ isn’t the only agency stepping up enforcement in the emissions space, however. This past week the SEC got in the emissions game on the security side, charging Navistar International with misleading investors in connection with their truck engine emissions.
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The Federal Bar Association’s annual kick-off event – “Views from the Top” – provides the white collar criminal defense bar an invaluable preview of the enforcement priorities of the Department of Justice, the U.S. Attorney’s Office for the Northern District of California, and the Securities and Exchange Commission.  Yet one preview that should be of particular interest to local companies stood out – the typically opaque pre-IPO space should expect heightened scrutiny by the SEC.
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