Blank Rome Partner on the Future of White Collar Work
Jennifer Achilles became Blank Rome LLP's newest white collar defense and investigations partner just as enforcement is expected to ramp up this year under the new presidential administration.
Achilles joined Blank Rome's New York office in May from Reed Smith LLP, where she led the firm's global regulatory enforcement group for three years. With nearly two decades of experience guiding clients through federal probes, regulatory enforcement and internal investigations, Achilles has represented public and private companies and their officers across several industries, including energy, financial services and life sciences. She got her start as a litigation associate at Schulte Roth & Zabel LLP and later worked in white collar criminal defense and securities enforcement at Morvillo Abramowitz Grand Iason & Anello PC, where she was mentored by Cyrus Vance Jr., now the Manhattan district attorney.
Law360 Pulse spoke with Achilles about the future of white collar defense and investigations law amid new federal regulations and increased enforcement under President Joe Biden, as well as what she sees as the most interesting industry to work with and how she got her start in the field.
This interview was conducted June 23 and has been edited for length and clarity.
What's the future of white collar defense and investigations work in the U.S., more than a year since the pandemic began?
We'll definitely see an increase in investigations and enforcement activity, but I think that has less to do with the pandemic and more to do with the Biden administration. Everyone is expecting an uptick, as reflected in some of the speeches coming out of [the U.S. Department of Justice] and the appointment of Gary Gensler as head of the [U.S. Securities and Exchange Commission]. All the activity that was occurring during the Trump administration and the pandemic will continue. By that I mean the focus on insider trading, focus on Foreign Corrupt Practices Act and investigations. But looking ahead, everyone is expecting investigations and enforcement activity to increase across the board.
What will the expected increase in enforcement and investigations mean on the ground? More trials and investigations?
Not necessarily more trials. Trials are pretty rare. A lot of cases settle if it's civil and certainly a lot of defendants plead out if it's criminal. I don't expect that to change. A concrete example of something that hadn't been occurring in the past but that we're expecting to see is new activity from the SEC's new task force on environmental, social, governance, or ESG. So they're looking into whether public companies are making appropriate disclosures to the investing public about how companies are impacted, for example, by climate change. State AGs are also pushing the SEC to require public companies to disclose in their filings specific information about how public companies are affected by climate change so investors can make sure that their investments are protected or they can evaluate, for example, if this is a company that I want to put my money in.
When investigations start to ramp up, what does that mean for a white collar attorney's day-to-day work?
It comes up in a couple of different ways. The corporate client, whether it be a public company or private company, will get either a grand jury subpoena from the Department of Justice, or a subpoena from the SEC if it's an ongoing investigation.
Sometimes companies are initiating their own investigations without a subpoena, if, for example, there's an internal whistleblower or media activity in their industry. Sometimes that will cause a client or a company to call me and ask about potential exposure or to do an investigation if, for instance, they had somebody say they suspect one of their businesses or employees is doing something improper. Sometimes when you're responding to a grand jury subpoena, you have to investigate and respond to it simultaneously and things have to be a little more fast-paced to make sure the company's responding to the government inquiries in a timely fashion.
And how might a ramp-up in enforcement play out in New York specifically?
There's a lot of talk about anti-money laundering and that specifically affects banks. That's one area that will be very active in New York. We now have the new Anti-Money Laundering Act of 2020, and it won't take long for rules to be implemented. This would involve banks, so the natural thinking is we'll see increased subpoena activity on foreign banks.
What the new anti-money laundering law does is it expands the investigatory power of the Department of Justice, so that the government can now have an easier time subpoenaing documents outside the United States as long as the bank has so much as a correspondent account here in the U.S. This reflects a real focus of the Department of Justice on anti-money laundering, as well as the fear or the risk associated with transacting on the blockchain.
With digital assets and crypto and crypto coin, the worry is that bad actors are laundering money through what so far has really been unregulated territory on the blockchain. And it frustrates government not to be able to get access to what people are doing on the blockchain. So this focus on anti-money laundering is not only with regulated entities, but I think we'll see an effort to monitor transactions that are being conducted on the blockchain.
You just joined Blank Rome in May. How has the firm worked to grow its white collar practice in recent years?
Over the past couple of years you can see a concerted effort by the firm to grow its ranks in white collar and investigations. Prior to me joining, I noticed that Bill Lawler in D.C. had joined the firm, and Jennifer Short, also a big hire in D.C. for Blank Rome, as well as with Paul Tzur in Chicago. There's already such a well-established team in New York, too — I'm the fourth white collar partner in the office. That commitment to white collar and investigations at a time when investigations are anticipated to increase is so smart. And, frankly, the people are so fantastic, the culture is great, and it's been a wonderful group to work with.
Your practice in the field has spanned multiple industries — what area have you found the most interesting and why?
Fintech. I love learning about how people and clients are operating in an innovative way within this regulated environment. The industry is finding holes in what businesses and consumers need and then creating from scratch technologies or businesses to fill that hole or need. Peer-to-peer lending was an example of that, with companies realizing that your average bank will sometimes not provide sufficient lending to small and midsized businesses. To see those fintech companies emerge is interesting. I like it the best because I have to think of everything I know about bank regulation and how things work — anti-corruption laws, anti-money laundering laws — and advise them about how they should operate their businesses within the regulatory framework.
Do you find it's easier to represent private or public companies and their officers?
With public companies, there's so much more regulation, and it's almost easier to represent them because the contours are more well-defined. With a private company, they're not required to make SEC disclosures, there's obviously certain basic, anti-bribery, anti-corruption rules … but in terms of a public company, it's easier because you're erring on the side of more disclosure because it's so much more heavily regulated.
What advice would you give to attorneys looking to get their start in white collar defense and investigations?
So much of the work is bet-the-company work. Companies are being investigated for bribery or corruption or insider trading, or things that could really impact the business greatly. So companies are really expecting the partner to be immersed in the work and doing most of it.
For that reason, unlike maybe more general litigation or general corporate, it is difficult for younger, less-experienced attorneys to do some of the higher-level white collar work right away. Less-experienced lawyers should reach out to more senior lawyers and observe, ask to be staffed on cases where they could be helping with witness interviews. Pro bono work is also a great way for younger lawyers to get criminal law experience.
Many of the attorneys who work in white collar are appointed to take on matters through the Criminal Justice Act, where instead of being represented by a public defender, the criminal defendant who can't afford or doesn't want their own private lawyer will get a court-appointed lawyer. When I was a young lawyer at Morvillo Abramowitz Grand Iason & Anello PC, I actually worked with outgoing Manhattan District Attorney Cy Vance, who was on the CJA panel. He was the one who really mentored me through my first bail hearing and my first representation of a defendant who had been incarcerated. That is how I got my early experience in this area.
“Blank Rome Partner on the Future of White Collar Work,” by Anna Sanders was published in Law360 Pulse on July 2, 2021.