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Inferring Dishonesty: The Fifth Amendment and Fidelity Coverage
Dishonest employees always have posed a problem for businesses. The average business may lose 6% of its annual revenues to employee fraud, and cumulatively the impact of employee theft on the economy is estimated to be $600 billion annually. See Association of Certified Fraud Examiners (“ACFE”), 2002 Report to the Nation on Occupational Fraud & Abuse, at ii, 4 (2002), available at www.cfenet.com/publications/rttn.asp. Although the average loss through employee embezzlement is $25,000, where computerized financial records or transactions are involved, the average loss increases nearly twentyfold. See National White Collar Crime Center, WCC Issue: Embezzlement/Employee Theft, at 2 (2002), available at http://nw3c.org/downloads/Computer_Crime_Weapon.pdf.
Insurers have responded by selling employee-dishonesty or fidelity policies, which reimburse the insured for its monetary loss from the dishonest or fraudulent acts of its employees (or others in positions of trust). When claims arise, most fidelity policies require the insured to submit a detailed, sworn proof of loss. The preparation of such a proof may require the insured to conduct a significant investigation into how the loss occurred and to monetize its claim.
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.