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In the Marketplace
The U.S. Supreme Court has denied Textron's petition for writ of certiorari in Textron Inc. v. United States, U.S., No. 09-750, (cert. denied 5/24/10). The controversial en banc decision by the U.S. Court of Appeals for the First Circuit, as analyzed in the November 2009 issue of this newsletter, held that a corporate taxpayer could not shield from disclosure so-called “tax accrual workpapers.” These documents, typically prepared by in-house tax attorneys, set out in detail sensitive areas of tax liability. In this case, the IRS had sought the tax accrual workpapers as part of an investigation into Textron's alleged use of an illegal “sale-in, lease-out” transaction. The sharply divided First Circuit (3-2) concluded that provisions of the federal securities law, in conjunction with prevailing accounting and auditing standards, made the creation of the tax accrual workpapers inevitable. Because the spreadsheets sought by the IRS were not the kind of documents attorneys typically prepared when faced with the prospect or the reality of litigation, they were not entitled to work product protection.
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.