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Dealing with the SEC's 'Up-the-Ladder' Reporting Requirements
In a September 2004 speech, the Director of the Securities and Exchange Commission's Division of Enforcement stated that the SEC has named lawyers as respondents or defendants in more than 30 enforcement actions in the past 2 years. These actions are consistent with the SEC's view that one of the Sarbanes-Oxley Act's primary themes is the significance of “gatekeepers,” such as auditors, lawyers, research analysts, and boards of directors, in maintaining fair and honest markets. Under this view, a lawyer, as gatekeeper, is, as SEC Commissioner Harvey Goldschmid put it, “a guardian with independent professional responsibilities, including a responsibility for protecting the institution,” rather than simply the management team that hired him or her.
The provision of Sarbanes-Oxley (SOX) that sets out this gatekeeper role for lawyers, Section 307, requires that lawyers report “up the ladder” (that is, to senior management and, ultimately, to the audit committee or the full board of directors) evidence of certain violations of the securities laws and breaches of fiduciary duties. While the SEC's rules implementing Section 307 became effective in August 2003, there remains much ambiguity in how the SEC plans to enforce them.
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.