FTC Issues Guidance on Criminal Enforcement Referrals for Regulatory Violations

The Federal Trade Commission ("FTC") provided new guidance on "the factors it will consider when deciding whether to refer alleged violations of criminal regulatory offenses to the U.S. Department of Justice ("DOJ") for prosecution."

Pursuant to an Executive Order concerning "overcriminalization in federal regulations," the FTC said the new policy requires consideration of: (i) "the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense;" (ii) "the potential gain to the putative defendant that could result from the offense;" (iii) whether the defendant "held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue;" and (iv) any evidence of the defendant's "general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."