USA Law and Practice Contributed by: Emily Hughes, Charles Kalil, Cori Lable and Ryan Raybould, Kirkland & Ellis
4.5 Cross-Border Defence Strategies Handling cross-border investigations before enforce - ment authorities in multiple jurisdictions requires sen - sitivity to sometimes conflicting regulatory require - ments. Data protection statutes vary widely by jurisdiction, and thus at times it may not be possible to transmit responsive materials across national bor - ders. Concepts of legal professional or attorney–client privilege may not be recognised in certain jurisdictions (eg, China), which requires counsel to be particularly attentive to how internal investigations are structured in order to preserve privilege in other affected juris - dictions. Different legal regimes (eg, Germany) may not recognise plea agreements or immunity for co- operating witnesses, which can make resolutions of white-collar matters implicating individuals more complicated. It is critical for counsel handling com - plex investigations implicating multiple enforcement bodies and legal systems to plan from the outset how they can best structure an investigation that satisfies various authorities’ expectations, while still navigating any competing national requirements. 5. Key Trends and Future Outlook 5.1 The Year Ahead In May 2025, the DOJ issued a memorandum detailing its enforcement priorities. The memo identifies three core tenants – focus, fairness and efficiency – that will guide its enforcement of white-collar criminal statutes. As provided in the memo, healthcare fraud, trade and customs fraud, and fraud targeting American inves - tors, individuals and markets are identified as priority enforcement areas.
the False Claims Act (31 USC Section 3730 (h)), the SOX Act and the Dodd-Frank Act (15 USC Section 78u-6). Large financial incentives exist for whistle-blowers to report. Whistle-blowers who voluntarily provide the SEC with original, timely and credible information that leads to a successful enforcement action in which the monetary sanctions exceed USD1 million may be eligible for an award of 10% to 30% of the penalty collected. The FCA provides for awards of between 15% and 30% of the proceeds of the action or settle - ment of the claim. The DOJ launched its “Corporate Whistleblower Awards Pilot Program” in August 2024, which awards whistle-blowers who provide original, truthful disclo - sures that lead to a successful forfeiture of assets that exceed USD1 million. On 12 May 2025, the DOJ revised some of the criteria that whistle-blowers must meet to broaden the eligibility for recovery. The Program encourages whistle-blowers to first report misconduct internally by considering inter - nal reporting as a plus factor when calculating any whistle-blower award. It also rewards corporate self- reporting. Companies can still qualify for a declination under the DOJ’s Corporate Enforcement and Volun - tary Self-Disclosure Policy – even if the whistle-blower reports to the DOJ before the company self-discloses. Typically, whistle-blowers are also protected by com - panies through specific whistle-blower policies or company ethics codes. Companies should not prohibit or discourage an employee from sharing information with the SEC and should not impose overly broad confidentiality obli - gations that could reasonably be interpreted to deter employees from sharing information with the SEC. The federal securities laws prohibit any person from “imped(ing) an individual from communicating directly with the [SEC] about a possible securities law viola - tion” (17 CFR Section 240.21F–17 (a)).
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