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The FCPA and Insurance Coverage
In an era of high-profile Wall Street prosecutions and shareholder derivative suits, the phrase “Foreign Corruption Practices Act” (FCPA) surely should have corporate officers and executives deeply concerned and vigilant. Not so, according to a new survey in which 80% of public company executives and their directors said that it was unlikely they would be sued this year. See Chubb Public Company Risk Survey, (June 18, 2012), www.chubb.com/corporate/chubb15576.html.
This lack of concern is despite the fact that 25% of those same surveyed companies have already been sued, and that 2011 brought a record number of settlements for FCPA violations as well as a record number of enforcement actions against non-U.S. individuals charged in the U.S. See Shearman & Sterling LLP, FCPA Digest of Cases and Review Releases Relating to Bribes to Foreign Officials under the Foreign Corrupt Practices Act (Jan. 3, 2012), http://shearman.symplicity.com/files/68c/68cf1e693fcaa178acbd6d852a86b084.pdf. And, it is despite the fact that costs related to FCPA enforcement can be enormous ' both in fines and penalties, investigation expenses, and in related civil suits. With the growing use of the FCPA in prosecutions and civil suits, companies should take steps to protect themselves and their directors and officers from FCPA-related risks using insurance and other risk-transfer tools. This article describes five strategies to help protect companies against the financial consequences of FCPA-related claims.
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.