Head of White-Collar and Co-Head of RISC
Norton Rose Fulbright US LLP
Kevin Harnisch is Head of White-Collar and Co-Head of Regulation, Investigations, Securities and Compliance (RISC), United States. Kevin litigates before the SEC, FINRA and other self-regulatory organizations, the Department of Justice, the CFTC, US attorney's offices, and federal courts. He handles matters relating to securities enforcement defense, internal investigations, anti-corruption issues, and represents corporations and their directors and officers, broker-dealers, hedge funds, private equity funds, and investment banks.
Kevin served as a Branch Chief in the Division of Enforcement of the SEC, where he led cases regarding financial fraud, market manipulation, insider trading, the Foreign Corrupt Practices Act (FCPA), and municipal bond offerings. He has authored numerous articles, and he frequently lectures on federal securities law and anti-corruption issues. He has experience defending public companies in a wide array of SEC, DOJ and other government agency investigations. Those investigations often pertain to such issues as the accuracy of financial statements, undisclosed related party transactions, the adequacy of internal controls, the FCPA and other anti-corruption laws, responses to whistleblowers, and potential insider trading.
Recent Articles & Comments
Companies should not overread the implications of this executive order. The FCPA is not dead, and companies do not have free reign to bribe foreign government officials. Moreover, the circumstances surrounding the bribery of foreign government officials can often include other separate criminal violations that are not impacted by the Executive Order. Further, many other countries also have their own anti-corruption laws, including some with expansive jurisdictional hooks.
Many of the fact patterns in the settlements raise a difficult question—what more could the firms have practically done to prevent certain employees from using off-channel communications? These settlements read like the current Commission's attempt to make this a strict liability offense instead of properly focusing on the overall reasonableness of a firm's control environment.
Interestingly, one of the bases for the SEC claiming the former CEO engaged in fraud was that he remained silent when the then-CFO made statements that the former CEO knew were inaccurate. That is an aggressive view that can increase the risk exposure for executives attending presentations to investors and potential investors.
The rapid pace of technological developments is significantly altering the way in which many broker-dealers and investment advisers service their clients. During examinations, the SEC is going to be doing deeper dives into emerging technologies, including AI, in order to assess firms' control infrastructure around those technologies, including how firms deploy those technologies, and the disclosures made about them.