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Securities Fraud and Sentencing Guidelines After Sarbanes-Oxley
In the legislative process that led to the adoption of Sarbanes-Oxley, legislators from both sides of the aisle vied with each other to establish their credentials for being tough on white-collar crime. The maximum penalties for mail fraud and wire fraud were increased from 5 to 20 years. Pub. L. No. 107-204 ' 903. The maximum penalty for willful violations of any provision of the Exchange Act or rule or regulation adopted thereunder the violation of which is unlawful was increased from 10 to 20 years. Pub. L. No. 107-204 ' 903. If this were not enough, a new crime relating to securities fraud in connection with the securities of public companies with a maximum penalty of 25 years was created. Pub. L. No. 107-204 ' 807. This does not exhaust the list, but should be sufficient to suggest that there are more than enough post-Sarbanes-Oxley criminal laws covering financial fraud to deter rational corporate officers and others from participating in financial crimes. The maximum statutory sentence, however, is less significant than other sentencing guideline factors in determining the range of sentence (minimum to maximum) within which the sentencing judge must impose a sentence. Defendant X, as we describe in greater detail below, an officer of a public company convicted of a willful violation of Rule 10b-5 resulting in a loss to more than 250 investors of $7-$20 million and a first time offender, under the Guidelines' Sentencing Table (below) has an offense level of 37 and faces a minimum term of 210 months (17.5 years) and a maximum sentence of 262 months (21 years and 10 months). Critical to determining the sentencing range is the Sentencing Table and what goes into it. See United States Sentencing Commission, Guidelines Manual (Nov. 2003) (available at http://%20www.ussc.gov/2003guid/2003guid.%20pdf), The Sentencing Table is as of Nov. 1, 2003 and incorporates amendments resulting from the provisions of the Sarbanes-Oxley Act discussed below.
About the Table
The table horizontally takes into account the defendant's Criminal History Category (prior offenses) and vertically the Offense Level stated as a number (ranging from 1 to 43) derived from various factors we discuss below reflecting in generic terms the seriousness of the offense. Where the two intersect determines in months the range of the minimum-maximum sentence. Thus, an Offense Level of 10 and a Category I criminal history (0-1 prior convictions) requires the sentencing judge to impose a sentence of not less than 6 months and a maximum of not more than 12 months. In contrast, an Offense Level of 27 and a Category I Criminal History would result in a sentencing range of 70-87 months. We stress the importance of the Offense Level on the assumption that corporate officers of public companies generally do not have prior convictions. The difference between the Offense Level of 10 and 27 under the above assumptions in terms of the minimum sentence is six months in the case of 10 and almost 6 years in the case of 27. There are also four zones (A-D) that are impacted by the Offense Level and Criminal History category but not in a straight line, which are relevant in determining whether probation, home detention, community service or some combination are or are not a sentencing alternative. For our immediate purpose, we note that only the A zone is eligible for probation without any imprisonment or substitute for imprisonment and that if in the D zone probation and none of the other alternatives not involving imprisonment is appropriate. It is also important to realize, that for federal crimes parole is not possible and that the maximum reduction of the sentence for good behavior is approximately 15%. See Guideline Manual (November 2003), at p. 9.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.