The Justice Insiders: Giving Outsiders an Insider Perspective on Government Gregg Sofer

Host Gregg N. Sofer welcomes back to the podcast Richard Epstein, Laurence A. Tisch Professor of Law at New York University Law School, and Steve Renau, Husch Blackwell’s Head of Thought Leadership, to discuss the U.S. Supreme Court’s recent decision in Securities and Exchange Commission v. Jarkesy. The Court held 6-3 that the Seventh Amendment’s guarantee of a jury trial requires the SEC to pursue civil penalties for securities-fraud violations in federal court. No longer can the SEC rely on its own in-house tribunal to secure these penalties. Although Jarkesy applies only to the SEC, the Court’s reasoning could have far-reaching implications across a number of federal agencies, particularly when “the ‘public rights’ exception to Article III jurisdiction does not apply.”

Our discussion highlights the administrative law history that was brought to bear upon the case and how it was that the adjudication of civil penalties came to be matters before non-Article III courts. We then pivot to some of the impacts Jarkesy could have in the future, including whether the Supreme Court will take up related issues of due process in future challenges to federal agency enforcement actions.

Finally, we discuss Jarkesy in light of the Supreme Court’s Loper Bright decision that ended the doctrine of Chevron deference and the implications of both decisions for administrative agencies and the private businesses they regulate.

Host Gregg N. Sofer welcomes Husch Blackwell attorney Rebecca Furdek back to the show to discuss recent government inquiries and enforcement actions concerning products and services related to artificial intelligence (AI). Gregg and Rebecca explore a few recent high-profile government investigations into so-called AI-washing and discuss the implications for businesses that are integrating AI into their workflows and product/service offerings. The discussion also covers how, in lieu of comprehensive federal legislation, agencies are using their existing powers to regulate AI. Finally, Gregg and Rebecca talk about some of the practical steps compliance departments can take to manage risks while seizing opportunities presented by AI.

Host Gregg N. Sofer welcomes Husch Blackwell partner Christina Moore to the show to unpack recent remarks made by Deputy Attorney General Lisa Monaco concerning a new Department of Justice whistleblower program. Monaco described a “90-day sprint” to stand up the new program, which purports to enhance DOJ’s corporate enforcement efforts by offering financial incentives to individuals who come forward with information about violations of federal law.

Gregg and Christina discuss the peculiarities of the program as it is understood presently, including questions regarding the anonymity of whistleblowers, the complications of multiple competing whistleblower programs, and the complexities of handling information in parallel proceedings.

Gregg and Christina also explore the practical matter of how the newly proposed program should be addressed by corporate compliance professionals and the importance of properly staffing and resourcing such programs so that employees utilize in-house channels to surface potential instances of wrongdoing.

Host Gregg N. Sofer welcomes Husch Blackwell’s Jonathan Porter back to the podcast to discuss the sentencing of Sam Bankman-Fried, the founder and former CEO of the bankrupt cryptocurrency exchange FTX who was convicted in late 2023 on multiple counts. On March 28, Bankman-Fried received a sentence of 25 years in prison. Our discussion explores the Bankman-Fried sentence in light of recent corporate criminal convictions, as well as the federal sentencing guidelines. Gregg and Jonathan also discuss the statutory framework and human elements at play in sentencing determinations.

Unlike most criminal defendants dealing with federal charges, Bankman-Fried did not reach a plea agreement but rather chose to go to trial. Although he lost at trial, Bankman-Fried did preserve his right to an appeal. Gregg and Jonathan explore how the appeal might unfold, given some of the peculiarities of the trial.

Host Gregg N. Sofer welcomes Husch Blackwell’s Erik Dullea to the podcast to explore how human error factors into cybersecurity efforts. Most data breaches trace back to some form of human error, and an approach to cybersecurity that doesn’t address the ‘social attack surface’ is likely to be a failing—and expensive—proposition.

Gregg and Erik note the recent cyber incident involving the Securities and Exchange Commission, which occurred mere months after the agency imposed wide-reaching cybersecurity disclosure rules on the public companies it regulates. Aside from being a major embarrassment for the U.S. government, the incident highlights how difficult it is to account for the vulnerabilities in digital networks created by humans, and Gregg and Erik provide some practical considerations for risk professionals, in-house counsel, human resource professionals, and others in their efforts to improve cybersecurity outcomes.

Host Gregg N. Sofer welcomes Husch Blackwell’s Christopher Budke and Rick Shimon to the podcast to discuss when, why, and how corporate legal departments should turn to external investigators to execute internal investigations.