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Fifth Circuit Weighs In On Constitutionality of the Corporate Transparency Act
Events have moved swiftly and symptomatically lately in the Fifth Circuit. Long known as the circuit with the greatest skepticism of federal regulation of the economy, it turned its attention to the Corporate Transparency Act (CTA), 31 U.S.C. §5336, which requires non-exempt companies to report the identity of their beneficial owners. While many companies saw the CTA as burdensome and ill-advised, the statute had seemed constitutionally safe because it only regulated commercial activity and only required information. Yet, on Dec. 3, 2024, a district court in the Eastern District of Texas held that the CTA was unconstitutional and issued a nationwide injunction against the enforcement of the CTA and its implementing rule. See, Tex. Top Cop Shop, Inc. v. Garland, 2024 U.S. Dist. LEXIS 218294 (E.D. Tex. Dec. 3, 2024).
This result may have seemed par for the course in terms of recent decisions in the Fifth Circuit, which decisions have also struck down the SEC’s Climate Change Disclosure Rules and the Federal Trade Commission’s attempts to prohibit covenants not to compete and, more ominously, resurrected the long dormant anti-delegation doctrine in a way that questions the constitutionality of many administrative agencies. See, Consumers’ Rsch. Cause Based Commerce, Inc. v. FCC, 109 F.4th 743 (5th Cir. 2024) (finding the combination of broad delegation and possible future delegation to a private entity to violate the separation of powers).
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.
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.
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.