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The JOBS Act and the Return of the Microcaps
Six years ago, I wrote in a sister publication opposing the application of the Sarbanes-Oxley Act's internal accounting control rules to small public companies, but I broke with my fellow critics on the reason why. I argued that small companies shouldn't be treated like big companies, not because they couldn't afford regulation, but because being small made them qualitatively different. Intrusive regulation made sense for large companies, I argued, because their failures could cause wide-ranging damage. Words like “systemic risk” were not yet in vogue, but that's what I meant. On the other hand, because failure and fraud in small companies would not impact the rest of the economy, they should largely be left alone, and their investors left to their traditional fraud remedies. It was, admittedly, a radical position. See Aegis J. Frumento, The Rich are Different, The Corporate Compliance & Regulatory Newsletter (May 2006), available at www.lawjournalnewsletters.com/issues/ljn_corporate/3_9/news/146512-1.html.
Now, one Great Recession later, Congress has officially recognized that small companies are indeed different by passing the Jumpstart Our Business Start-ups Act of 2012, which President Obama signed into law on April 5, 2012. Pub. Law 112-106, 126 Stat. 306 (the JOBS Act). It won't become fully implemented until next January, when ' if ' the SEC passes enabling rules. Even now, though, we can say with confidence that the JOBS Act will encourage small businesses and their investors to take more unregulated risks than they have been able to for a long time.
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.