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Nonprofit Governance Reform
Over the past 3 years, nonprofit organizations have wrestled with the degree to which they should undertake the types of governance reforms that are mandated for SEC registered companies under the terms of the Sarbanes-Oxley Act (SOX). Common reasons for proceeding slowly, or not at all, were that SOX does not apply to nonprofits, and except in a handful of states, such as California, there have been no state law mandates for change. There are also practical considerations that militate against strict application of SOX in the non-profit context, including significant differences in the development and expectations for board members, focus on mission rather that profitability and the overlay of federal exempt organization rules.
As a consequence, management of some nonprofit institutions has resisted efforts to reform and have continued practices that arguably are inconsistent with trends prevalent in the for profit world. Recently, pressure to reevaluate and consider changes in corporate governance has come from a source that will directly affect the pocketbook of many large nonprofit organizations — the agencies that rate tax exempt debt. All three of the major rating agencies, Standard & Poor's, Moody's and Fitch-Ratings, have issued statements and/or revised their ratings criteria this year with respect to nonprofit corporate governance issues for health care institutions with rated debt. In their comments, they have specifically referenced reforms mandated by SOX for public companies as models, and indicated varying levels of expectation that issuers adopt these or similar governance measures.
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.