Cohen & Gresser partners Christian R. Everdell and Sri Kuehnlenz examine how the nomination of Jay Clayton as U.S. Attorney for the Southern District of New York could shape the office’s enforcement priorities in a new article published by Law360. The piece explores anticipated areas of focus and the potential implications for white-collar enforcement and corporate investigations.

Read the full article on Law360 here (subscription required).

"We are proud to congratulate Sri, Drew, Christine, and Saruji on their well-earned promotions," said Lawrence T. Gresser, the firm’s global managing partner. “They are superb lawyers and wonderful people. We are lucky to have them, and we are excited to see their continued success at Cohen & Gresser.”

Sri Kuehnlenz – Partner, New York

Sri Kuehnlenz is a member of the firm’s Litigation & Arbitration and White Collar Defense & Regulation groups. She represents companies and individuals in complex matters involving contract disputes, securities laws, the Foreign Corrupt Practices Act, consumer protection laws, and executive employment issues, with a focus on complex financial and accounting cases. Her notable work includes representing the defendant in a high-profile five-week criminal jury trial in the cryptocurrency sector, defending a major credit card corporation against a deceptive practices claim, defending an asset management firm against contract, tort, and statutory claims arising from a complex financial arrangement, and handling a pivotal breach of contract appeal for a hedge fund. Sri also advises clients on pre-litigation strategy and employment negotiations. Recognized as a Rising Star by Law360 in 2024 and by Super Lawyers since 2019, Sri is a trusted advocate in high-stakes litigation and regulatory matters.

Drew S. Dean – Counsel, New York

Drew S. Dean is a trusted advocate in high-stakes commercial litigation and white-collar defense matters, representing clients in sensitive and often multi-jurisdictional disputes. In addition to his litigation practice, Drew advises clients on domestic and international strategic investments, mergers and acquisitions, and a wide range of corporate transactions. His exceptional legal work and dedication to client service have earned him recognition as a Super Lawyers Rising Star every year since 2020.

Christine M. Jordan – Counsel, New York

Christine M. Jordan has extensive experience representing corporations, financial institutions, and individuals in high-stakes litigation before federal and state courts, as well as in arbitral tribunals. Christine’s practice spans a wide range of complex disputes, including those involving mergers and acquisitions, securities, contracts, real estate, and bankruptcy. Christine has been recognized by Super Lawyers as a Rising Star for general litigation every year since 2022.

Saruji Sambukumaran – Counsel, Paris

Saruji Sambukumaran focuses on all aspects of French employment law (legal counseling and assistance in transactional and litigation matters) including individual and collective relations. With a deep understanding of the complexities of French labor regulations and workplace dynamics, she advises both domestic and international clients on a wide range of employment matters, notably compliance, workforce management, reorganization and redundancy matters, trade union and representative body relations, and dispute resolution.

Super Lawyers once again named C&G co­-founder Mark S. Cohen and partner Jonathan S. Abernethy to the Super Lawyers list of the Top 100 lawyers in the New York metropolitan area.

Super Lawyers and Rising Stars are annual lists of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only 5 percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.

The C&G lawyers recognized on the New York Metro Super Lawyers list are:

• Jonathan S. Abernethy, Criminal Defense: White Collar
• Kwaku Andoh, Mergers & Acquisitions
• Luke Appling, Civil Litigation: Defense
• Elizabeth Bernhardt, Business Litigation
• Karen H. Bromberg, Intellectual Property
• Jason Brown, Criminal Defense: White Collar
• Joanna K. Chan, Securities Litigation
• Mark S. Cohen, Business Litigation
• Gale Dick, Business Litigation
• Christian R. Everdell, Criminal Defense: White Collar
• Robert J. Gavigan, Mergers & Acquisitions
• Lawrence T. Gresser, Business Litigation
• Oliver S. Haker, Business Litigation
• Johannes Jonas, Mergers & Acquisitions
• Nicholas J. Kaiser, Real Estate
• David F. Lisner, Business Litigation
• Ellen Paltiel, General Litigation
• Douglas J. Pepe, Business Litigation
• Matthew V. Povolny, Business Litigation
• Bonnie J. Roe, Securities & Corporate Finance
• Stephen M. Sinaiko, Business Litigation
• Mark Spatz, Civil Litigation: Defense
• Daniel H. Tabak, Business Litigation
• Scott D. Thomson, Business Litigation
• Alexandra Wald, Business Litigation

The C&G lawyers recognized on the New York Metro Rising Stars list are:

• Sharon L. Barbour, Criminal Defense: White Collar
• Randall W. Bryer, Business Litigation
• Shannon A. Daugherty, Business Litigation
• Drew S. Dean, General Litigation
• Christine M. Jordan, General Litigation
• William Kalema, Business Litigation
• Phoebe King, Business Litigation
• Sri Kuehnlenz, Civil Litigation: Defense
• Marvin J. Lowenthal, Criminal Defense: White Collar
• Barbara K. Luse, Criminal Defense: White Collar
• Alexandra Theobald, Business Litigation
• Myia Williams, Mergers & Acquisitions
• Benjamin Zhu, General Litigation

In a profile by Law360, Sri said she finds white collar work compelling because "the rules are not as clear-cut" as other areas of law. "I love the opportunity to grapple with new questions, whether it's novel legal issues or developing an understanding of an industry — that's what keeps the work exciting and interesting day-to-day," she said.

The full profile is available on Law360.

This year’s list of top attorneys under 40 features 158 honorees whose remarkable legal achievements far exceed their years. They were selected from nearly 1,200 submissions, with 3 to 6 lawyers recognized in each of 34 practice areas.

Super Lawyers named C&G co­founder Mark S. Cohen one of the Top 10 lawyers in the New York metropolitan area. Partners Jonathan S. Abernethy and Karen H. Bromberg have also been named to the Super Lawyers list of the Top 100 lawyers in the New York metropolitan area. Additionally, Karen has been recognized as one of the Top 50 women lawyers within the same region.

Super Lawyers and Rising Stars are annual lists of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only 5 percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.

The C&G lawyers recognized on the New York Metro Super Lawyers list are:

• Jonathan S. Abernethy, Criminal Defense: White Collar
• Kwaku Andoh, Mergers & Acquisitions
• Luke Appling, Civil Litigation: Defense
• Elizabeth Bernhardt, Business Litigation
• Colin C. Bridge, Criminal Defense: White Collar
• Karen H. Bromberg, Intellectual Property
• Jason Brown, Criminal Defense: White Collar
• Joanna K. Chan, Securities Litigation
• Mark S. Cohen, Business Litigation
• S. Gale Dick, Business Litigation
• Christian R. Everdell, Criminal Defense: White Collar
• Robert J. Gavigan, Mergers & Acquisitions
• Lawrence T. Gresser, Business Litigation
• Oliver S. Haker, Business Litigation
• Johannes Jonas, Mergers & Acquisitions
• Nicholas J. Kaiser, Real Estate
• Jeffrey I. Lang, Civil Litigation: Defense
• David F. Lisner, Business Litigation
• Ellen Paltiel, General Litigation
• Douglas J. Pepe, Business Litigation
• Matthew V. Povolny, Business Litigation
• Nathaniel P. T. Read, Business Litigation
• Bonnie J. Roe, Securities & Corporate Finance
• Stephen M. Sinaiko, Business Litigation
• Mark Spatz, Civil Litigation: Defense
• C. Evan Stewart, Securities Litigation
• Daniel H. Tabak, Business Litigation
• Scott D. Thomson, Business Litigation
• Alexandra Wald, Business Litigation

The C&G lawyers recognized on the New York Metro Rising Stars list are:

• Sharon L. Barbour, Criminal Defense: White Collar
• Randall W. Bryer, Business Litigation
• Shannon A. Daugherty, Business Litigation
• Drew S. Dean, General Litigation
• Jesse Greenwald, Criminal Defense: White Collar
• Christine M. Jordan, General Litigation
• William Kalema, Business Litigation
• Sri Kuehnlenz, Civil Litigation: Defense
• Marvin J. Lowenthal, Criminal Defense: White Collar
• Barbara K. Luse, Criminal Defense: White Collar
• Benjamin Zhu, General Litigation

Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only five percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.

Super Lawyers

Jonathan S Abernethy: Criminal Defense: White Collar

Kwaku Andoh: Mergers & Acquisitions

Elizabeth Bernhardt: Business Litigation

Thomas E Bezanson: Personal Injury – Products: Defense

Colin C Bridge: Criminal Defense: White Collar

Karen H Bromberg: Intellectual Property

Jason Brown: Criminal Defense: White Collar

Joanna K Chan: Securities Litigation

Mark S Cohen: Business Litigation

S Gale Dick: Business Litigation

Christian R Everdell: Criminal Defense: White Collar

Lawrence T Gresser: Business Litigation

Oliver S Haker: Business Litigation

Johannes Jonas: Mergers & Acquisitions

Nicholas J Kaiser: Real Estate

Jeffrey I. Lang: Business Litigation

Melissa H Maxman: Antitrust Litigation

Ellen Paltiel: General Litigation

Nathaniel P T Read: Business Litigation

Bonnie J Roe: Securities & Corporate Finance

Stephen M Sinaiko: Business Litigation

C Evan Stewart: Securities Litigation

Daniel H Tabak: Business Litigation

Scott D Thomson: Business Litigation

Alexandra Wald: Business Litigation

Ronald F Wick: Antitrust Litigation

Rising Stars

Luke Appling: Civil Litigation

Sharon L Barbour: Criminal Defense: White Collar

Drew S Dean: General Litigation

William Kalema: Business Litigation

Sri Kuehnlenz: Civil Litigation

Winnifred A Lewis: Securities Litigation

Marvin J Lowenthal: Criminal Defense: White Collar

Barbara K Luse: Criminal Defense: White Collar

Matthew V Povolny: Business Litigation

Benjamin Zhu: Criminal Defense: White Collar

Given the success of the SEC’s whistleblower program during Clayton’s tenure as Chair, we expect the Office, under his leadership, to refine the pilot whistleblower program SDNY debuted last January. We also anticipate that, once he is at the helm, the Office will focus on prosecuting more traditional, well-established crimes, with an emphasis on national security, rather than pursuing newer, less tested theories. As discussed below, these anticipated areas of focus will help to inform company counsel’s priorities in the new year.

Refinement of SDNY’s Whistleblower Pilot Program

One of the most notable trends among U.S. Attorney’s offices in 2024 was the number of whistleblower programs created by the United States Department of Justice (the “DOJ”) and individual U.S. Attorney’s offices (including SDNY). In January 2024, SDNY announced a whistleblower program aimed at encouraging early and voluntary self-disclosure by individual participants in certain non-violent criminal conduct in exchange for non-prosecution agreements.^[1] The SDNY program, which was amended last month, seeks information regarding criminal conduct involving (1) fraud, corporate control failures, or harm to market integrity, (2) intellectual property theft, (3) bribery or fraudulent use of government funds, (4) obstruction of justice, perjury or false statements, (5) healthcare fraud, and (6) money laundering and unlicensed money transmitting businesses.^[2] Notably, the program is styled as a “pilot” program to be reassessed by the Office at some point in the future.

We expect Clayton to take a hard look at whether the SDNY program is working and amend it to make it more effective and transparent, as he did when he oversaw the SEC’s whistleblower program.^[3] For example, the SEC whistleblower program under Clayton saw a significant uptick in financial rewards paid to whistleblowers—a benefit not offered to potential whistleblowers under the current SDNY program. In fact, the current policy, as amended last month, requires whistleblowers “to forfeit the proceeds involved in the individual’s criminal misconduct and repay victims as determined by SDNY to be consistent with the individual’s role in the offense.” This may deter potential whistleblowers from participating in the program.^[4] Although payouts to whistleblowers in criminal cases may be incompatible with the policy goals of forfeiture and restitution to victims, this language does allow some discretion that Clayton may use to at least soften the financial impact on whistleblowers.

The policy also contains ambiguities that may make potential whistleblowers wary of participating. For example, the program is focused on disclosures of the crimes specified above, but it also requires an individual to disclose all criminal conduct in which they have participated.^[5] If an individual participated in criminal conduct outside of the categories covered by the program, and discloses such conduct to prosecutors, will the non-prosecution agreement offered by SDNY cover such conduct, or does the individual still face criminal liability?^[6] If Clayton is looking to increase participation in the program, these are some of the issues he may need to address.

Finally, recent directives from the Trump administration may impact the scope of the whistleblower program. For example, on February 10, 2025, the Department of Justice ordered SDNY to dismiss the indictment charging New York City Mayor Eric Adams with bribery offenses.^[7] It remains to be seen whether this decree and others from the Trump Administration will cause SDNY to limit or stop actively soliciting information about bribery offenses as part of its whistleblower program.

Anticipated Reluctance to Prosecute Novel Theories or Industries

Clayton will likely rein in novel prosecutorial theories as well. Clayton has previously expressed a reluctance to engage in any regulatory activity entailing broad policymaking which he believes is something better left to Congress. For example, during his remarks at a June 2024 Chamber of Commerce event, Clayton reportedly stated that the SEC should “stay in [its] lane” and “Congress should do its job” in developing corporate emissions disclosure rules.^[8] Clayton also left behind a market-friendly legacy at the SEC, suggesting he may be hesitant to pursue criminal cases that may stifle nascent industries and growth.^[9] Clayton’s approach appears consistent with the executive order President Trump issued on February 10, 2025 ceasing the initiation of any new investigations or enforcement actions under the Foreign Corrupt Practices Act, in which he asserted that the statute has been “stretched beyond proper bounds and abused in a manner that harms the interests of the United States.”^[10]

If Clayton applies this same mindset at SDNY, the Office will likely pursue fewer prosecutions in relatively new industries, such as digital assets and artificial intelligence, unless the conduct at issue clearly falls within the heartland of the criminal laws. This is particularly so given President Trump’s public embrace of cryptocurrency and AI in recent months.^[11] Indeed, there may not be many crypto prosecutions in progress once Clayton arrives, as SDNY has already signaled that it is shifting its focus from cryptocurrency prosecutions.^[12]

The Office may also be disinclined to apply novel theories in prosecuting more traditional crimes. Earlier this year, the SEC secured its first victories in obtaining insider trading verdicts and settlements under a theory of “shadow trading.” In contrast to traditional insider trading, “shadow trading” involves using material non-public information of one company, not to trade in the stock of that company or an acquiring company, but to trade in the stock of a different company, such as a competitor. For instance, in SEC v. Panuwat, the SEC obtained an insider trading jury verdict in April 2024 against Matthew Panuwat, a pharmaceutical executive who, after learning about the imminent acquisition of his employer, Medivation, purchased call options of a competitor, Incyte, under the theory that the options would increase in value when the sale became public.^[13] It was expected that criminal prosecutions under the same theory would soon follow. However, that may not happen with Clayton as head of SDNY, particularly given the still-novel nature of the theory and the heavier burden of proof (i.e., “beyond a reasonable doubt” vs. “preponderance of the evidence”) prosecutors must meet.

The Supreme Court’s ongoing efforts to pare back what constitutes fraud under the federal fraud statutes may also impact the Office’s prosecution of other traditional crimes, like wire fraud. In 2020, the Supreme Court ruled in Kelly v. United States that the public officials involved in the “Bridgegate” scandal did not violate federal program fraud or wire fraud laws because taking control of the lanes on the George Washington Bridge did not constitute the taking of property.^[14] Three years later, Ciminelli v. United States invalidated the Second Circuit’s long-standing theory that depriving a victim of information that would inform the victim’s economic decisions (i.e., depriving them of a “right to control”) constitutes property for purposes of the federal wire fraud statute.^[15] This trend may continue at the Supreme Court with its forthcoming opinion in Kousisis v. United States, which was argued before the Court in December 2024. The question before the Court is whether a scheme to induce a commercial transaction through deception that does not seek to harm the victim’s economic interests constitutes wire fraud (there, a government contractor — Alpha Painting and Construction Co. and its project manager, Stamatios Kousisis — provided quality repair work at a competitive price but falsely represented its compliance with regulations aimed at increasing diversity in government contracting).^[16] A decision in Kousisis is expected before the Court’s term ends in June 2025. A ruling in favor of the defendant-appellant, in conjunction with the prior Supreme Court precedents, may contribute to a narrowing of the fraud theories pursued by Clayton’s SDNY.

Potential Focus on Crimes Implicating National Security and Foreign Influence

Clayton may also shift SDNY’s enforcement focus towards cases that implicate national security or undue influence by foreign actors. This would fit within the Trump Administration’s priorities and be consistent with Clayton’s recent comments. According to Reuters, days after Clayton was announced as President Trump’s pick for SDNY in November 2024, he highlighted how, given its location in the financial capital of the world, SDNY is well-positioned to prosecute crimes relating to national security, terrorism financing, and money laundering.^[17]

Clayton might do so by continuing the Biden DOJ’s use of sanctions enforcement as a tool for prosecuting conduct raising national security or foreign influence concerns. In the past four years, the DOJ has increased its commitment to sanctions enforcement, particularly against Russian entities and individuals.^[18] The DOJ has clearly developed a successful blueprint for pursuing these types of cases. However, with the recent disbanding of Task Force KelptoCapture, the interagency task force focused largely on enforcing sanctions against Russian oligarchs, it seems likely that the focus of sanctions enforcement will shift to other countries.

Takeaways

While it may be a few months before Clayton is confirmed, looking ahead to SDNY’s potential priorities once he is at the helm may help to inform company counsel’s areas of focus in the new year.

Counsel may want to review their company’s internal reporting program to ensure it enables employees to quickly inform the company of potential issues, so it can determine how to handle the alleged violation, rather than risking the employee filing a whistleblower complaint resulting in an investigation and catching the company off guard.

While we do not expect SDNY under Jay Clayton to engage in “regulation by enforcement” when it comes to relatively new industries, such as digital assets and AI, companies should nevertheless understand the extent to which their operations implicate those new industries or technologies.

Finally, the DOJ’s focus on national security-related crimes and the likelihood that the SDNY under Clayton would continue such focus is a reminder that companies should continue to scrutinize their overseas business and relationships with foreign actors to ensure compliance with any applicable regulations and to detect potential violations.

Endnotes:

[1] See Press Release, United States Attorney’s Office for the Southern District of New York, U.S. Attorney Williams Announces Enforcement Priorities And SDNY Whistleblower Pilot Program (Jan. 10, 2024), https://www.justice.gov/usao-sdny/pr/us-attorney-williams-announces-enforcement-priorities-and-sdny-whistleblower-pilot.

[2] See SDNY Whistleblower Non-Prosecution Pilot Program, United States Attorney’s Office Southern District of New York (Jan. 14, 2025), https://www.justice.gov/d9/2025-01/01.14.2025_wb_policy_for_sdny_website.pdf.

[3] See Selected SEC Accomplishments: May 2017 – December 2020, U.S. Securities and Exchange Commission (Oct. 21, 2024), https://www.sec.gov/about/sec-commissioners/sec-historical-summary-chairmen-commissioners/jay-clayton/selected-sec-accomplishments-may-2017-december-2020.

[4] See SDNY Whistleblower Non-Prosecution Pilot Program, note 2 supra.

[5] Id.

[6] The current program does allow anonymous reports in the first instance, which may partially address this concern. See SDNY Whistleblower Program Frequently Asked Questions (FAQs), United States Attorney's Office Southern District of New York (June 26, 2024), https://www.justice.gov/usao-sdny/sdny-whistleblower-program-frequently-asked-questions-faqs.

[7] DOJ Brass Want Bribery Charges Against NYC Mayor Dropped, Law360 (Feb. 10, 2025), https://www.law360.com/articles/2296233/doj-brass-want-bribery-charges-against-nyc-mayor-dropped.

[8] See Andrew Ramonas & Avani Kalra, Ex-SEC Chair Calls on Congress to Lead Climate Policymaking, Bloomberg Law (June 25, 2024), https://news.bloomberglaw.com/esg/ex-sec-chair-calls-on-congress-to-lead-climate-policymaking.

[9] See Tom Zanki, SEC’s Clayton Leaves Behind Market-Friendly Legacy, LAW360 (Nov. 20, 2020), https://www.law360.com/articles/1330352/sec-s-clayton-leaves-behind-market-friendly-legacy?ts_pk=b01098fc-8a4a-4e24-904b-0e0413268635&utm_source=user-alerts&utm_medium=email&utm_campaign=tracked-search-alert.

[10] Exec. Order, Pausing Foreign Corrupt Practices Enforcement to Further American Economic and National Security, (signed Feb. 10, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/pausing-foreign-corrupt-practices-act-enforcement-to-further-american-economic-and-national-security.

[11] See, e.g., Will Oremus, Picking Sacks as ‘AI and crypto czar’ signals Trump’s pro-industry stance, The Washington Post (Dec. 5, 2024), https://www.washingtonpost.com/technology/2024/12/06/trump-david-sacks-crypto-ai-czar/.

[12] See Luc Cohen & Chris Prentice, Crypto enforcement seen slowing as Trump shifts priorities, Reuters (Nov. 15, 2024), https://www.reuters.com/legal/manhattan-us-attorney-scale-back-crypto-cases-prosecutor-says-2024-11-15/.

[13] Jury Returns Verdict Finding Defendant Matthew Panuwat Liable for Insider Trading, Litigation Release No. 25970, U.S. Securities and Exchange Commission (Apr. 8, 2024), https://www.sec.gov/enforcement-litigation/litigation-releases/lr-25970.

[14] Kelly v. United States, 590 U.S. 391, 400 (2020).

[15] Ciminelli v. United States, 598 U.S. 306, 316 (2023).

[16] Brief for Petitioner at i, Stamatios Kousisis and Alpha Painting & Construction Co., Inc. v. United States, No. 23-909 (Aug. 19, 2024).

[17] See Chris Prentice & Echo Wang, Trump pick for Manhattan’s top federal prosecutor urges focus on national security, money laundering, Reuters (Nov. 20, 2024), https://www.reuters.com/world/us/trump-pick-manhattans-top-federal-prosecutor-urges-focus-national-security-money-2024-11-20/.