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Bankruptcy Fraud in the Spotlight?
As we all know, the feds continue to investigate and prosecute fraud in the financing, accounting and operation of businesses. The Second Year Report of the President's Corporate Fraud Task Force declares that over 500 corporate fraud convictions have been obtained to date and that charges have been brought against over 60 corporate CEOs or presidents. See www.usdoj.gov/ dag/cftf. However, executives and their counselors would do well to note that the government's will and ability to prosecute high-level management may not lessen just because a business is in extremis.
About 35,000 business bankruptcy petitions are filed each year, a little over 2% of the total filings in the nation. See www.abi world.org. Bankruptcy fraud has been a white-collar priority of the Department of Justice (DOJ) at least since a 1992 declaration of then Attorney General Reno. The DOJ and the FBI are now armed with an additional obstruction statute under the Sarbanes-Oxley Act (SOX), a revitalized U.S. Trustee Criminal Enforcement Unit designed to detect and refer bankruptcy fraud, Bankruptcy Fraud Task Forces within some U.S. Attorney's Offices, and the “built-in” referral sources of creditors and the Bankruptcy Court itself.
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.