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Clients come to Nancy Kestenbaum to handle their most important and sensitive government and internal investigations and litigation. With 25 years’ experience as a defense attorney and former federal prosecutor, she has represented clients ranging from the largest multi-national companies to individuals in high-stakes criminal and civil enforcement investigations by the United States Department of Justice, Securities and Exchange Commission, and other federal, state and local criminal and civil regulatory agencies.
In the most recent 2015 Chambers USA edition, clients and peers described her as an “excellent strategist” “who really has a mastery of the issues” and is “terrific in a courtroom.”
Ms. Kestenbaum is currently the co-chair of Covington’s White Collar Defense and Investigations Practice Group and was formerly a member of the firm’s Management Committee.
Ms. Kestenbaum has represented corporate and individual clients in the life sciences, financial services, energy, technology and defense industries. She has defended clients in a variety of cases, including those related to international issues, such as the Foreign Corrupt Practices Act and trade controls and sanctions; financial fraud, such as accounting fraud, insider trading and tax; pharmaceutical issues such as off-label marketing, anti-kickback and safety violations; and many other issues, such as public corruption or obstruction of justice.
- Obtained DOJ declination, closing investigation without charges, after two-year FCPA investigation of oil exploration company Hyperdynamics. Resolved related SEC FCPA investigation without bribery charges.
- Defended global and domestic pharmaceutical companies in investigations by the Department of Justice and state Attorneys General concerning marketing, physician interaction and drug safety and labeling issues.
- Represented large accounting firm in DOJ, SEC and PCAOB investigations.
- Represented multinational entities in investigations of export controls and sanctions.
- Defended companies and individuals in DOJ and SEC insider trading investigations.
- Represented non-profit in an investigation by the New York Attorney General’s Office.
- Defended companies and individuals in SEC accounting fraud investigations.
- Conducted internal investigation on behalf of a University’s Audit Committee concerning allegations of misconduct and retaliation by the University’s President.
- Defense of life sciences companies in litigation involving the U.N. Oil-for-Food Programme.
- Representation of an individual in criminal tax case involving foreign bank accounts.
Pro Bono
- Along with the Center for Constitutional Rights, represented post-9/11 detainees in Turkmen v. Ashcroft, successful Second Circuit case reversing District Court’s decision dismissing former Cabinet Officials from case involving claims of unlawful and abusive detention.
- Assist the Campaign to Keep Guns Off Campus.
- Represent federal prisoner in Clemency Project application process.
- Successfully represented individual who obtained asylum from the Democratic Republic of Congo.
- Represented individuals who successfully sued Cracker Barrel restaurants for discrimination in public accommodations.
Memberships and Affiliations
- Association of the Bar of the City of New York, White Collar Crime Committee
- Federal Bar Council
- American Bar Association, Criminal Justice Section
Previous Experience
- Ms. Kestenbaum served for nine years as a federal prosecutor in the United States Attorney’s Office for the Southern District of New York, where she investigated and prosecuted numerous cases in the District Court and Second Circuit Court of Appeals and served as Chief of the General Crimes Unit and Deputy Chief of the Criminal Division.
- U.S. Attorney's Office, Southern District of New York, Chief, General Crimes Unit (2002-2003)
- U.S. Attorney's Office, Southern District of New York, Deputy Chief, Criminal Division (2002)
- U.S. Attorney's Office, Southern District of New York, Assistant United States Attorney (1994-2003)
- U.S. Department of Energy, Office of Hearings and Appeals, Analyst (1985-1987)
June 7, 2017, Covington Alert
On Monday, in Kokesh v. SEC, the Supreme Court handed a major loss to the Securities and Exchange Commission, unanimously holding that SEC claims for disgorgement of ill-gotten gains are subject to a five-year statute of limitations. The Kokesh decision also calls into question the proper measure of disgorgement (e.g., gross versus net profits) and even whether the SEC and potentially other federal government agencies have authority to seek disgorgement at all.
September 30, 2016, Covington Alert
The U.S. Securities and Exchange Commission (SEC) continues to aggressively pursue companies using severance and other employment agreements that could be perceived to discourage employees from reporting possible securities law violations. Three enforcement actions this past summer demonstrate the need for companies to proactively review and give consideration to any provision in an employee agreement that could be interpreted as impeding whistleblowing activity—regardless of whether the agreement has actually stifled potential whistleblowers or was intended to do so.
September 20, 2016
WASHINGTON—Global Investigations Review has named the Microsoft warrant access case as the winner of the “Most Important Court Case of the Year.” Covington served as co-counsel to Microsoft and helped secure a landmark win in the U.S. Court of Appeals for the Second Circuit. GIR also ranked Covington among the top 15 investigations practices in the world in its ...
July 14, 2016
WASHINGTON—The U.S. Court of Appeals for the Second Circuit has ruled in favor of Covington’s client Microsoft Corporation in its challenge to a U.S. warrant seeking customer emails stored in Ireland. Microsoft argued that the warrant—issued under the Electronic Communications Privacy Act (ECPA)—could not be used to obtain emails stored abroad because it would ...
Four Covington Partners Named Law360 MVPs
November 25, 2015
WASHINGTON, DC, November 25, 2015 - Law360 has named four Covington partners as MVPs in their respective practice areas. The awards single out lawyers from across 31 practice areas based on their success in high-stakes litigation, record-breaking deals, and complex global matters. The Covington lawyers recognized as Law360 MVPs are: Ray Biagini, ...
October 19, 2015, The Wall Street Journal
Covington’s role in helping Hyperdynamics navigate an FCPA investigation is highlighted in this Wall Street Journal “Risk & Compliance Journal” story. Nancy Kestenbaum said, “It was essential for the company’s survival that it resolve the investigations as quickly as possible.” She also commented on the company’s cooperation throughout. “Recognizing that a ...
Co-Chair - Legal, Ethical and Strategic Issues in Internal Investigations
2006-2015, PLI Conference
September 11, 2015, Covington Alert
Federal Appeals Court Permits Detainee Claims Against Former U.S. Officials to Proceed
June 18, 2015
NEW YORK, June 18, 2015 - A federal appeals court ruled yesterday that former top U.S. officials can potentially be held liable for the abuse of detainees held at a center in New York City following the terrorist attacks of September 11, 2011. The plaintiffs in the case, Turkmen v. Ashcroft, are represented by the Center for Constitutional Rights, Covington & ...
May 26, 2015
WASHINGTON, DC, May 26, 2015 — Covington represented Hyperdynamics Corporation in an investigation conducted by the U.S. Department of Justice into potential violations of the Foreign Corrupt Practices Act related to its business activities in the Republic of Guinea. The Justice Department has completed its investigation without bringing any charges against the ...
Women in Investigations
April 1, 2015, GIR
Covington's Nancy Kestenbaum and Mythili Raman are featured in GIR's "Women in Investigations" special.
Winter 2015, Covington Advisory
August 18, 2014
WASHINGTON, DC, August 18, 2014 — Best Lawyers named Covington & Burling’s Stuart Eizenstat and Gregg Levy each a 2015 “Lawyer of the Year” in international trade and sports law, respectively, citing their “abilities, professionalism and integrity.” Overall, Covington lawyers received 217 individual mentions in 58 areas of law in the newly released annual survey ...
January 2014, Covington Advisory
Covington Lawyers Recognized by New York Super Lawyers
9/18/2013
NEW YORK, September 18, 2013 — New York Super Lawyers selected 36 Covington & Burling lawyers for its 2013 list of top legal talent. Super Lawyers selects no more than five percent of the total lawyers in the state based on peer review and the publication’s independent research. Twenty-three Covington lawyers were named New York Super Lawyers: • Martin ...
July 29, 2013, Covington Advisory
February 2013, Covington Advisory
November 2012, Covington Advisory
Covington Lawyers Recognized by NY Super Lawyers
September 24, 2012
NEW YORK, September 24, 2012 — New York Super Lawyers selected 27 Covington & Burling lawyers for its 2012 list of top legal talent. Super Lawyers selects only five percent of the total lawyers in the state based upon peer review and the publication’s independent research. Nineteen Covington lawyers were named New York Super Lawyers: Jack Bodner, Mergers & ...
August 27, 2012
WASHINGTON, DC, August 27, 2012 — Covington & Burling LLP lawyers received 196 individual mentions in 57 areas of law in the 2013 edition of The Best Lawyers in America. This annual compilation of top U.S. lawyers is based on peer-review surveys and is used as a referral guide in the legal profession. The Covington lawyers recognized are as ...
August 22, 2012, Covington E-Alert
July 12, 2012, Covington Advisory
July 2012, Covington E-Alert
February 2012, Covington E-Alert
January 20, 2012
WASHINGTON, DC, January 20, 2012 — Law360 named Covington & Burling’s white collar defense and investigations practice as of one of the top five “White Collar Practice Groups of the Year.” In a profile about the firm’s practice published on Jan. 19th, Law360 noted the breadth of Covington’s clients and matters in the white collar practice area as a key reason ...
September 27, 2011
NEW YORK, September 27, 2011 — Twenty Covington & Burling LLP lawyers are recognized in the 2011 edition of New York Super Lawyers. The annual list by Super Lawyers selects only five percent of the total lawyers in the state based upon peer review and the publication’s independent research. Sixteen Covington lawyers were named New York Super Lawyers: Jack ...
The New SEC Whistleblower Rules: What Will They Mean in Practice?
June 23, 2011, Covington & Burling Webinar
The SEC Whistleblower Rules: A New Era in Fraud Investigation
June 6, 2011, West LegalEd Center
June 2, 2011, Covington Advisory
May 20, 2011, Covington Advisory
January/February 2011, The Corporate Governance Advisor
November 8, 2010, Covington Advisory
September 23, 2010, Covington E-Alert
The Dodd-Frank Act: A New Whistleblower Regime and Corporate Governance Changes
September 2010, Ethics & Compliance Officer Association Annual Conference
July 29, 2010, Covington Advisory
January 14, 2010, Covington E-Alert
Document Retention: Ethical, Legal & Practical Advice for Determining the Documents You Should (and Are Required to) Preserve
April 2009, 2010, New York City Bar Association
Securities Fraud Enforcement
March 2007, ABA National Institute on White Collar Crime
What All Business Lawyers Must Know About Delaware Law Developments
May 2007, May 2008, PLI Conference
Credit Where Credit is Due? The Role of Internal Investigations in the Outcome of Government Investigations
August 2006, PLI Conference
Lessons Learned from Enron
June 2006, PLI Conference
May 26, 2006, Covington Advisory
Conducting Internal Investigations: A Guide for Counsel
April 2006, PLI Conference, New York
- Law360, MVP for White Collar (2015)
- Selected by Chambers USA as a leading attorney in the areas of White Collar Crime and Government Investigations (2014-2016)
- Global Investigations Review, Women in Investigations (2015)
- Listed as a leading lawyer in Who’s Who Legal: Investigations (2016-2017) and Business Crime Defence (2014-2015)
- Best Lawyers in America, Criminal Defense - White Collar (2013-2017)
- Euromoney, Benchmark: The Guide to America’s Leading Litigation Firms and Attorneys - Future Litigation Star, NY (2013-2014)
- Legal 500 US, Litigation - White Collar Criminal Defense (2012-2016)
- New York Super Lawyer, White Collar (2007-2016)
Practices
Industries
Education
Yale Law School, J.D., 1990
University of Pennsylvania, B.A., 1985
- magna cum laude
- Phi Beta Kappa
Government Service
- U.S. Department of Justice – U.S. Attorney’s Office
Judicial Clerkship
- Hon. Kimba M. Wood, U.S. District Court, Southern District of New York, 1990 - 1991
Bar Admissions
- New York
- New Jersey