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Drafting a Practical and Useful Code of Ethics
Pursuant to Section 406(c) of the Sarbanes-Oxley Act (SOX), the Securities and Exchange Commission adopted Regulation S-K 406, which requires reporting companies to disclose whether the company has adopted a code of ethics that applies to its principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. In addition, New York Stock Exchange Rule 303A.10, American Stock Exchange Section 807 and Nasdaq Rule 4350(n) require listed companies to adopt and disclose a code of conduct for directors, officers and employees.
The SEC rule requires that the code include standards that are reasonably designed to deter wrongdoing, and to promote: 1) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; 2) full, fair, accurate, timely, and understandable disclosure in reports and documents that a registrant files with, or submits to, the SEC and in other public communications made by the registrant; 3) compliance with applicable governmental laws, rules and regulations; 4) the prompt internal reporting of violations of the code to an appropriate person or persons identified in the code; and 5) accountability for adherence to the code. The American Stock Exchange and Nasdaq require a code complying with the requirements of Section 406 and the regulations adopted thereunder by the SEC. The New York Stock Exchange adds requirements that the code also address: 1) corporate opportunities; 2) confidentiality; 3) fair dealing; and 4) protection and proper use of company assets.
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.