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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.
- Led independent investigations of sexual misconduct for Choate Rosemary Hall, The Brearley School, and other institutions.
- Represents the United States Olympic Committee in connection with sexual abuse issues.
- 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)
September 29, 2020, Covington Alert
Last week, a divided Securities and Exchange Commission amended its whistleblower rules, hailing the changes as adding “clarity, efficiency and transparency to its successful whistleblower program.” Although the agency made a large number of changes to the program, the amendments should not have a significant overall effect on SEC whistleblower activity, which ...
July 21, 2020, Covington Alert
On July 17, 2020, Commonwealth Edison Company (“ComEd”), an Illinois utility company, entered into a deferred prosecution agreement (the “DPA”) with the U.S. Department of Justice (“DOJ” or the “Department”) to resolve allegations of bribery under 18 U.S.C. § 666, which prohibits theft or bribery concerning programs receiving federal funds. Aside from the ...
July 6, 2020, Covington Alert
On July 3, 2020, the U.S. Department of Justice’s (“DOJ” or the “Department”) Criminal Division and the U.S. Securities and Exchange Commission’s (“SEC”) Enforcement Division quietly released A Resource Guide to the U.S. Foreign Corrupt Practices Act, Second Edition (the “Second Edition”). The first edition of the Resource Guide (the “First Edition”) was ...
June 3, 2020, Covington Alert
On June 1, 2020, the U.S. Department of Justice (“DOJ” or the “Department”) Criminal Division released an updated version of its Evaluation of Corporate Compliance Programs document (the “Guidance”), which serves as a reference for prosecutors in assessing corporate compliance programs in the context of DOJ investigations. The Department last revised the ...
Criminal Statutes of Limitations and Speedy Trial Act Considerations During the COVID-19 Pandemic
April 3, 2020, Covington Alert
COVID-19 (hereinafter, “the coronavirus”) is causing significant interruptions to the legal system across the United States, with implications for actual and potential subjects in government investigations and defendants in enforcement actions. This client advisory analyzes the pandemic’s potential effects on the default statute of limitations for federal crimes ...
January 30, 2020, Covington Alert
It has been another strong year in anti-corruption enforcement, with 2019 meeting or beating the high-water mark for enforcement across a number of measurements.
December 17, 2019, Covington Alert
On Friday, December 13, Principal Deputy Attorney General David Burns of the Justice Department’s (“DOJ’s” or “the Department’s”) National Security Division (“NSD”), announced a new DOJ policy for business organizations that voluntarily disclose potential criminal violations of the U.S. export controls and sanctions laws to NSD’s Counterintelligence and Export ...
Former SDNY Prosecutor Joins Covington
September 11, 2019
NEW YORK—Amanda Kramer, former Assistant U.S. Attorney for the U.S. Attorney’s Office for the Southern District of New York, has joined Covington’s White Collar Defense and Investigations Practice in New York as a partner. Ms. Kramer served for more than 11 years as a federal prosecutor in the Southern District of New York. Most recently, she served as a senior ...
May 10, 2019, Covington Alert
On April 30, 2019, the U.S. Department of Justice (“DOJ”) Criminal Division released an updated version of the Evaluation of Corporate Compliance Programs (the “Guidance”), which serves as a reference for prosecutors in assessing corporate compliance programs in the context of DOJ investigations.
April 3, 2019, Covington Alert
In March 2019, the U.S. Department of Justice introduced several changes to the Foreign Corrupt Practices Act (“FCPA”) Corporate Enforcement Policy (“the Policy”). The Policy, originally incorporated into the Justice Manual in November 2017, outlines the Department’s position on mitigation credit that companies may receive for voluntary self-disclosure, full ...
April 3, 2019, Covington Alert
In March 2019, the U.S. Department of Justice introduced several changes to the Foreign Corrupt Practices Act (“FCPA”) Corporate Enforcement Policy (“the Policy”). The Policy, originally incorporated into the Justice Manual in November 2017, outlines the Department’s position on mitigation credit that companies may receive for voluntary self-disclosure, full ...
Q1 2019, Covington Alert
It was business as usual for FCPA enforcement in 2018. The U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) collected a total of $1 billion from seventeen corporate defendants, including through their share of two high-value, multi-jurisdictional enforcement actions. DOJ also announced thirteen new FCPA prosecutions ...
Winter 2019, Covington Alert
It was business as usual for FCPA enforcement in 2018. The U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) collected a total of $1 billion from seventeen corporate defendants, including through their share of two high-value, multi-jurisdictional enforcement actions. DOJ also announced thirteen new FCPA prosecutions ...
Four Covington Partners Named Law360 MVPs
December 12, 2018
WASHINGTON—Law360 has named four Covington partners as MVPs in their respective practice areas. The awards single out lawyers from across numerous practice areas based on their success in high-stakes litigation, complex global matters, and record-breaking deals. The Covington lawyers recognized as Law360 MVPs are: Shara Aranoff, International Trade. Ms. ...
July 19, 2018, Covington Alert
Last week, in SEC v. Cohen, a federal district court dismissed an SEC enforcement action, in its entirety, on statute-of-limitations grounds. Most notably, citing the Supreme Court’s 2017 Kokesh decision, the court held that the injunction sought by the SEC in the case "would function at least partly to punish Defendants and is therefore a penalty" for purposes ...
Sarah Crowder Named to GIR's "Women in Investigations"
July 17, 2018
LONDON—Global Investigations Review has named Covington’s Sarah Crowder to the second edition of “Women in Investigations,” highlighting 100 female practitioners from across the globe. Nancy Kestenbaum and Mythili Raman were selected to the list’s first edition in 2015. The survey highlights a variety of women not previously recognized by the magazine—from ...
February 23, 2018, Covington Alert
On Wednesday, the Supreme Court issued its much-anticipated decision in Digital Realty Trust, Inc. v. Somers. Ruling 9-0, the Court held that the Dodd-Frank Act prohibits retaliation against whistleblowers only if they reported suspected wrongdoing directly to the SEC.
White Collar Group Of The Year: Covington & Burling
February 2, 2018, Law360
Covington was named a 2017 White Collar Practice Group of the Year by Law360. Commenting on the firm's representation of Takata Corp. in its highly sensitive $1 billion deal with the U.S. Department of Justice over air bag inflators, Steven Fagell says, "It was a very sensitive and very complicated matter, and there were other regulators that had taken an ...
How #MeToo Is Changing Internal Investigations
January 28, 2018, Law360
Nancy Kestenbaum is quoted in a Law360 article regarding the impact of the #MeToo movement on internal investigations. “The #MeToo movement has empowered more people to come forward and raise these issues at their companies or organizations,” says Kestenbaum. “And that has caused the organizations to examine those specific issues, or issues of harassment and ...
January 25, 2018, Covington Advisory
Our message this year is simple: FCPA enforcement is here to stay. Despite pre-election statements to the contrary, various senior officials in the U.S. Department of Justice (“DOJ”) and U.S. Securities and Exchange Commission (“SEC”) have, over the past year, consistently reaffirmed DOJ’s and the SEC’s commitment to FCPA enforcement.
The Regulator Whisperers: Covington & Burling, Finalist for White Collar/Regulatory Litigation Department of the Year
January 2018, The American Lawyer
The American Lawyer named Covington a finalist for White Collar/Regulatory Litigation Department of the Year and highlights Eric Holder, Steven Fagell, Lanny Breuer, Nancy Kestenbaum, and Mythili Raman in its profile.
December 17, 2017, The Wall Street Journal
Nancy Kestenbaum is quoted by The Wall Street Journal in an article regarding internal investigations at nonprofits. According to Kestenbaum, when reported incidents occurred decades ago, investigators looked for documents or multiple witnesses to substantiate claims. “You can be left with situations where you believe misconduct took place but you have ...
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 ...
June 7, 2017, Covington Alert
On Monday, in Kokesh v. SEC,1 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. For decades, the SEC had taken the position that its disgorgement claims could reach back indefinitely, and recently obtained a ...
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 ...
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.
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 ...
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
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 ...
July 12, 2012, Covington Advisory
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
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
Conducting Internal Investigations: A Guide for Counsel
April 2006, PLI Conference, New York
- Law360, White Collar MVP (2018, 2015)
- Selected by Chambers USA as a leading attorney in the areas of White Collar Crime and Government Investigations (2014-2020)
- 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 (2013-2020)
- 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 (2012-2017) and Dispute Resolution - Securities Litigation (2017)
- New York Super Lawyer, White Collar (2007-2020)
White Collar Defense and Investigations Toolkit
Practical guidance for in-house counsel and others on internal and government investigations, whistleblowers, trends, and more.
Practices
Education
Yale Law School, J.D., 1990
University of Pennsylvania, B.A., 1985
- magna cum laude
- Phi Beta Kappa