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'Up-the-Ladder' Responsibilities Clarified by Sarbanes-Oxley
As discussed on page 1 of this newsletter, the SEC recently issued 'Standards of Professional Conduct' for attorneys representing issuers before the SEC ' a new rule mandated by the Sarbanes-Oxley Act of 2002. See 15 U.S.C. ' 7201 et. seq. The Standards clarify an attorney's 'up-the-ladder' corporate reporting responsibilities imposed by the Act. 17 C.F.R. ' 205.
An attorney must advise his or her client's General Counsel or CEO whenever he or she receives 'credible evidence, based upon which it would be unreasonable, under the circumstances, for a prudent and competent attorney not to conclude that it is reasonably likely that a material violation has occurred, is ongoing or is about to occur.' 17 C.F.R. ' 205.2(e). A 'material violation' is defined broadly as a material violation of a federal or state securities law, a material breach of a fiduciary duty under federal or state law or a 'similar material violation of any United States, federal or state law.' 17 C.F.R. ' 205.2(i).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.