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There Ain't No Such Thing As a Free Prospectus
The Securities & Exchange Commission's Securities Offering Reform dramatically changed the landscape of registered public offerings. Issuers and underwriters would do well to take advantage of these changes while staying aware of potential fraud liability. See Final Rule: Securities Offering Reform, Release Nos. 33-8591 and 34-52056, 70 Fed. Reg. 44,722, available at www.sec.gov/rules/final/33-8591.pdf. Previously, written offers could only be made after a registration statement had been filed and only in the form of a statutory prospectus. Now, written offers can be made in much freer form through a 'free writing prospectus.' Through this new free writing prospectus, some issuers can even make offers regardless of whether a registration statement has been filed.
A free writing prospectus ' which is any written offer outside of the statutory prospectus ' can take many forms: printed materials, e-mails, Internet Web sites, radio or television broadcasts, faxes, and even widely distributed voice mails. It can contain any information, including information not contained in the registration statement as long as there is no conflict. A free writing prospectus usually needs to be filed with the SEC by the issuer, but not by underwriters unless it is likely to be broadly disseminated. Furthermore, it must contain a legend advising the potential investor to read the registration statement and indicating how it can be obtained. While many issuers still need to have a registration statement on file to use free writing prospectuses, well-known seasoned issuers can now make written offers even before filing through free writing prospectuses.
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.
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.
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.