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Internal Whistleblowers
On June 26, 2017, the Supreme Court granted certiorari in Digital Realty Trust Inc. v. Somers, 16-1276, to review a Ninth Circuit decision regarding Securities and Exchange Commission (SEC) whistleblowing protections. The Court's ruling is highly anticipated, as it will clarify the landscape for whistleblower protections.
Somers was VP of Digital Realty. He was terminated from his position after reporting internally certain alleged eliminations of internal corporate controls in violation of the Sarbanes-Oxley Act (SOX). Somers sued under the anti-retaliation provision of SOX, alleging that he was “fired for making internal complaints protected under the Sarbanes-Oxley Act.” Somers did not report this alleged misconduct to the SEC. See http://bit.ly/2xiLJGW.
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.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."