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Changes to the Federal Sentencing Guidelines
In response to the recent corporate scandals within organizations including Enron, WorldCom, Adelphia and Tyco, and with the enactment of the Sarbanes-Oxley Act (SOX), the Federal Sentencing Commission (the “Commission”) has submitted to Congress amendments to Chapter Eight of the Federal Sentencing Guidelines that, barring action from Congress, will take effect on Nov. 1, 2004. See Notice of Submission to Congress of Amendments to the Sentencing Guidelines Effective November 1, 2004 (“Notice of Submission”), 69 Fed. Reg. 28,994, 28,994 (May 19, 2004).
Chapter Eight of the Sentencing Guidelines governs punishment for organizations, including corporations, that are convicted of crimes. Chapter Eight also provides incentives to organizations to engage in self-policing of their own conduct through the development of effective compliance and ethics programs. Chapter Eight currently sets forth a number of factors courts must consider when determining the appropriate sentence for an organization, including: 1) the organization's involvement in or tolerance for criminal activity; 2) the size of the organization; 3) the prior history of an organization's misconduct; 4) whether the organization violated a previous judicial order; 5) whether the organization engaged in the obstruction of justice; and 6) whether the organization has an effective compliance program. It is the last of these factors that is the primary subject of the recent amendments to Chapter Eight.
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.