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Penance But No Absolution
The legal fiction of corporate criminal liability may finally get the rewrite it badly needs. Urged by practitioners and academics for decades, arguments for changing corporate criminal liability, if not abolishing it altogether, may now have a receptive audience in Washington.
Recent concerns about the overreaching of prosecutors who extract corporate privilege waivers and pressure companies to cut off employees' legal fees ' issues that surfaced prominently in the KPMG case ' led to Senate Judiciary Committee hearings and proposed legislation by Senator Arlen Specter (R-PA) that would prohibit the government from demanding, or 'conditioning treatment' on, corporate privilege waivers, or conditioning a civil or criminal corporate charging decision on whether a company advances legal fees to its employees. Perhaps to preempt Senator Specter's proposal, on Dec. 12, 2006, the Department of Justice (DOJ) issued a memorandum from Deputy Attorney General Paul McNulty revising the Thompson Memorandum. The pertinent changes include requiring requests for corporate privilege waivers to be approved by senior DOJ officials, and instructing prosecutors that they are not to consider whether a company is advancing fees in charging decisions unless advancement is intended to 'impede' a criminal investigation.
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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.
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.
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.
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This article explores legal developments over the past year that may impact compliance officer personal liability.
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.