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LAW vs. LORE: The Lack of Judicial Precedent in FCPA Cases
When delivering legal advice, lawyers attempt to provide informed guidance based on the prevailing law. Yet, when it comes to significant chunks of the white-collar criminal and regulatory landscape, practitioners often are forced to provide advice based on professional lore derived from negotiated settlements rather than enacted laws or judicially established case law.
Statutes, regulations and court decisions make up the rules of law. But white-collar practitioners often encounter vast swaths of the landscape that have only the most basic or broad statutory language and lack any judicial precedent. In these areas, they may not be able comfortably to provide counsel based on law and, instead, often rely on lore ' the accepted traditions developed among prosecutors, government regulators, and defense attorneys. This lore develops from negotiated settlements often lacking the true dynamics of adversarial proceedings before a neutral magistrate.
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.
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.