004 - Tickmark: ABA White Collar Crime Institute 2026

Chris Ekimoff: Hello and welcome to the immaterial podcast where we explore the front page and the footnotes to discuss accounting, the law, white collar crime, and everything in between. I'm your host Chris Ekamoff and today we're back with a tick mark episode, a quick hit on current events and happenings in the forensic accounting world. This week, I want to share some timely takeaways from the 2026 ABA white collar crime Institute here in San Diego, one of the premier gatherings for prosecutors, defense counsel, regulators and compliance leaders in the white collar space. The Institute held this year, March 10th through the 13th at the Marriott Marquis in the San Diego Marina, focused heavily on coordination, predictability and transparency and enforcement themes that came up repeatedly across the plenary sessions and the breakouts. Now, although this year's iteration is a little different from a few years past, we aren't seeing a significant participation level from current active regulators and enforcement professionals from the federal government. But we still have a great set of folks here to share their insights. Some who have recently transitioned out of government, those who have practiced in these areas for decades, still providing a great opportunity to learn and hear what's going on today. So mainly there have been three significant developments this week, two of which have little or nothing to do with the conference that focus in the white collar crime space. The first is the Department of Justice's newly issued department-wide corporate enforcement policy, or CEP for those in the acronym business. ⁓ Secondarily, just yesterday, we had the SEC and the CFTC announce their new memorandum of understanding, aptly timed, if we are thinking about what this conference means for folks practicing in either of those areas. And then third, another theme we talk about today is how the profession, how practitioners are viewing the white collar crime landscape going forward. So let's unpack a little bit and start with the regulators. The first development here and arguably the most consequential for our corporate actors is the Department of Justice's first ever department wide corporate enforcement and voluntary self-disclosure policy, which came out on March 10th. This new policy supersedes all prior component specific and U.S. attorney office specific policies top to bottom with limited exceptions for antitrust matters. In plain terms, the DOJ is now speaking with one voice when it comes to corporate criminal enforcement. The core message here is clear. Companies that voluntarily self-disclose misconduct, fully cooperate and timely remediate can expect a declination of prosecution. absent significant aggregating factors. Even when aggravating factors exist, prosecutors retain discretion to recommend declinations or substantially reduce penalties, with fine reductions raising from at least 50 % to as much as 75 % off the low end of the sentencing guidelines. Importantly, all declinations will be made public and companies must still pay disgorgement, forfeiture, and restitution as expected. Reinforcing the cooperation mitigates criminal exposure, but will not remove total accountability. An interesting development here as we're working across all of these practitioners and corporatities to think about how to prepare ourselves for the new enforcement landscape. ⁓ Definitely a detailed read that all of you interested in that topic should get out and go through the CEP in detail. Now, second to that, we talked a little bit up top about the Securities and Exchange Commission and the Commodities Futures Trading Commission, the SEC and the CFTC, announcing their quote, historic memorandum of understanding or MOU designed to end decades of regulatory friction and duplicative oversight. Under this MOU, the agency is committed to coordinating policymaking, examinations, and enforcement with a particular emphasis on everyone's favorite topic, crypto assets, as well as emerging technologies and duly registered entities. Both agency chairs described the agreement as a move toward the minimum effective dose of regulation. aimed at clarity rather than expansion and harmonization rather than battles over turf. The MOU also establishes a Joint Harmonization Initiative, which will coordinate everything from product definitions to cross-market surveillance and enforcement referrals. Now, throughout the Institute, panels have featured former DOJ officials and seasoned defense counsel that have underscored this policy is designed to drive speed and decisiveness. As several speakers have noted, The combination of expanded whistleblower incentives and clearer declination standards means companies no longer control the timing of disclosure in the same way they once did. The point echoed in multiple law firm analyses following the announcement. So we're looking at a couple of different areas of focus here from the DOJ and the SEC and CFTC. I think one of the more prescient ideas around that memorandum of understanding is that we are moving in a direction that Chairman Atkins had talked about for many months after his appointment. of making sure that the fences, the good fences in these case, do make good neighbors when it comes to enforcement. One of the comments that I took away from the way, one of the panel discussions today was that the SEC and the CFTC are going to move away from, I believe the quotation the gentleman said was, anything that smacks of regulation by enforcement. If that phrase doesn't mean anything to you, definitely take a quick Google search to see. Regulation by enforcement has been a hot topic in the past 10 years, especially in emerging technologies and cryptocurrency and digital asset space. That being that the commissions are not providing specific guidance on regulations or proper registrations, but they are enforcing these rules in a way that's hard to understand where the lines are drawn. So some of the commentary this week has been about the move away from that regulation by enforcement idea. Other thoughts that have come from the panels this week kind of in our third trend has really been about changes in the landscape. The statistics that have come out recently from the DOJ and the SEC or that have been aggregated by some of the third party folks following them have shown a significant decline in actions in 2025, specifically with the new administration ⁓ across all those enforcement veins starting to reset its expectations in the enforcement world. ⁓ The things that got the biggest laugh yesterday was a running joke about what all the attorneys are updating their website law firm bios to say that they're experts in now. Everyone laughed to hear that there are many folks out there who are now quote, tariff refund specialists, something that I don't think was an interesting or focus point topic up until maybe two or three weeks ago with the Supreme Court decision. We're also seeing a lot of folks representing their vast experience in the False Claims Act as a new area. as well as like CFTC enforcement, which maybe weren't a focal point of their practice in the past. So a little bit of fun and ribbing at some of the participants here this week. But it is clear that the changes in the magnitude or the quantity of cases are not moving away from what we've heard from the enforcement bar generally. That being this, quote, bread and butter white collar enforcement activity will continue. ⁓ Areas like accounting fraud, Ponzi or investment schemes, healthcare fraud, ⁓ tax issues, will all be at the forefront of all of the agencies in their standard practice. But I think most folks here are really thinking about the pie in those areas being a little bit smaller and having to deal with maybe that specialty that they've had in their back pocket for a long time that has brought in a significant amount of work for them and some great work on behalf of their clients. ⁓ Now needing to maybe change and pivot a bit to be. a little bit more generalized or a little bit more away from those very deep veins of specialty to be more flexible and nimble in the market. some great updates we've had this week so far. Very excited to round out the program over the next day or two. Thank you for tuning in to this tick mark episode of the Immaterial Podcast. And as always, we promise that although we aren't authoritative, we will always be authentic. We'll see you next time. Thanks for tuning in.