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Good Faith Issues
The massive corporate scandals that accompanied the new millennium resulted in a host of high-profile legislative and regulatory responses by, among others, Congress, the Securities and Exchange Commission and the national securities exchanges. Fearful of being marginalized by the incursion of these entities into matters of corporate governance, the Delaware courts appear to be using the threat of enhanced exposure to potential personal liability as a means to encourage directors and officers to be more attentive in the performance of their managerial responsibilities.
By virtue of their managerial prerogatives, directors and officers of a corporation owe fiduciary duties to the corporation and its stockholders. These duties govern the conduct of corporate fiduciaries both in making corporate decisions on an episodic basis and in overseeing the corporation's business and affairs on an ongoing basis. Historically, these duties have been characterized as duties of loyalty and care, with the duty of loyalty having an integral good faith component.
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.