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Business Crimes Bulletin
Anti-Bullying and Corporate Responsibility
Michael W. Peregrine
As boards implement anti-bullying policies to protect against a toxic management-to-employee workplace environment, they should also consider extending similar protection to the vital interactions between the general counsel and the CEO.
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Business Crimes Bulletin
Biden Administration Corporate Enforcement Policies More Symbolism than Effective Reform
Robert J. Anello and Richard F. Albert
By undoing some of the higher profile policy changes of the prior administration that many perceived as business-friendly, the current administration has served notice on the business and financial community of a return to practices characteristic of a more aggressive enforcement regime.
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Business Crimes Bulletin
Feds Jumping Into Corporate Privacy and Cybersecurity Enforcement
David Saunders and Julian L. André
The past 12 months have seen a steady drumbeat of action by federal law enforcement and regulatory agencies of which in-house counsel should take note. Whether new guidance, regulation, investigations, or enforcement activity, the message is clear: The federal government is paying close attention to how companies are handling and protecting their data — especially consumer and sensitive data.
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Cybersecurity Law & Strategy
Best Practices for Investigations In Remote Environments
Colin Jennings, David Meadows, Nicole Wells and John Winkler
With regulatory and investigations activity expected to pick up significantly in the coming year, it’s more important than ever to tighten up remote investigations methods to meet best practices. Aside from enabling continuity during COVID-19 restrictions, remote workflows offer a number of benefits in investigations.
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Business Crimes Bulletin
Corporate Compliance Programs and the DOJ’s Emphasis on Data Analytics: What Companies Need to Consider
Jonathan B. New, Jimmy Fokas, Patrick T. Campbell and Bari R. Nadworny
In recent months, the Dept. of Justice has raised expectations for companies to use data analytics to monitor the effectiveness of their compliance programs and to identify potential misconduct.
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The Bankruptcy Strategist
Update on Corporate Bankruptcy Tax Refund Litigation
Michael L. Cook
The bankruptcy trustee of a bank holding company was not entitled to a consolidated corporate tax refund when a bank subsidiary had incurred losses generating the refund, Tenth Circuit held.
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Accounting And Financial Planning For Law Firms
Tax on Excess Tax-Exempt Org. Executive Compensation
Lawrence L. Bell
Under the Tax Cut and Jobs Act, should certain employees of a tax-exempt organization receive compensation greater than $1,000,000 during the tax year from any combination of a tax-exempt organization and/or its related organizations, the organizations would be subject to an excise tax on that employee’s compensation in proportion to their payments to the employee.
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The Corporate Counselor
Follow Up on False Claims Act Actions
Jacqueline C. Wolff and Benjamin J. Wolfert
The authors discuss several steps to take in order to avoid the pitfalls that could accompany lengthy exposure vis-à-vis state false claims actions.
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The Corporate Counselor
Employee Claims in Bankruptcy Pose Significant Liability Exposure
Shane G. Ramsey and David M. Barnes, Jr.
Lessons Learned From In Re FPMI Solutions Inc.
When a corporation determines to file for Chapter 11 protection, questions concerning the status of existing labor and employment agreements and viability of employee claims immediately arise. Indeed, there are litanies of potential pitfalls for companies that file for bankruptcy without strictly following the requirements of federal or state employment laws.
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The Corporate Counselor
Chancery Approves Incorporation of Reference Condition in Section 220 Litigation
Brett M. McCartney
Books and records actions are heralded as the "tools at hand" for litigators pursuing shareholder claims against a corporation. In fact, the Delaware Court of Chancery has been critical of litigants who failed to take advantage of a shareholder's right to request the books and records of a corporation prior to commencing litigation against the corporation.
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The Corporate Counselor
Preventing Insider Trading at Biopharma Companies
Scott R. Jones
Biopharma companies and their insiders often possess material, nonpublic information. And since company equity usually makes up a large part of insiders' compensation, legal issues arise when they have access to such information and want to trade their equity.
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The Corporate Counselor
Effective Internal Investigations
Terence Healy
A Checklist for In-House Counsel
Every general counsel over the course of his or her career will face the need to conduct an internal investigation into events at the company. Many of these may be routine in nature, such as matters dealing with individual employees or human resources issues. But at times, the company may be required to examine issues affecting the core of its business, with potential serious impact on its financial performance or with regulatory exposure.
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Business Crimes Bulletin
Antitrust Corporate Dispositions
Marc Siegel
This article provides critical background on DOJ policy and practice, and highlights some of the steps corporate counsel — as well as "spin-off" counsel for individual employees — can take during leniency or plea negotiations to secure non-prosecution protection for the company's employees as part of any antitrust corporate disposition.
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The Corporate Counselor
Delaware Corporate Law and Chancery Review
Francis G. X. Pileggi
Key Decisions from DE’s Supreme Court and Court of Chancery
A few recent decisions from the Delaware Court of Chancery provide practical guidance for corporate executives regarding the standard of review that the courts will apply to challenges to executive compensation decisions.
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Commercial Leasing Law & Strategy
A Broadening Consensus to Narrow Asset Forfeiture
Edmund W. Searby
It's important to keep informed of the trends in the realm of asset forfeiture, especially now that the current federal administration has announced its intention seek more asset forfeitures going forward. Here's why.
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Equipment Leasing Newsletter
Serving Two Masters: When 'Bankruptcy-Remote' Meets Public Policy
Pamela J. Martinson
Structured financing transactions make extensive use of entities formed for the specific purpose of reducing the likelihood that assets will be involved in a potential bankruptcy proceeding. Known as "bankruptcy-remote entities," or "BREs," these entities are subject to structures and covenants in financing documents and their own formation documents, which are designed to reduce the likelihood that the BRE will file for bankruptcy protection.
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Business Crimes Bulletin
The Fork in the Road: The SEC and Preemption
C. Evan Stewart
Part One of a Two-Part Article
With the preemption issue pretty well teed up, what do the courts say (to date)? A look at one recent ruling.
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Accounting And Financial Planning For Law Firms
Employee Privacy and Corporate Legal Risk
David Horrigan
The use of business email accounts and digital devices for personal communications can be risky for both employers and employees. However, employees of all levels may be commingling corporate communications with their personal information, according to new research.
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The Corporate Counselor
Antitrust Corporate Dispositions
Marc Siegel
This article provides critical background on DOJ policy and practice, and highlights some of the steps corporate counsel can take during leniency or plea negotiations to secure non-prosecution protection for the company's employees as part of any antitrust corporate disposition.
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Business Crimes Bulletin
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
Ronald H. Levine and Carolyn H. Kendall
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.
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Employment Law Strategist
Do Your Employment Practices Violate Antitrust Law?
Robert G. Brody and Alexander Friedman
This article provides critical background on DOJ policy and practice, and highlights some of the steps corporate counsel can take during leniency or plea negotiations to secure non-prosecution protection for the company's employees as part of any antitrust corporate disposition.
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The Corporate Counselor
What Can We Tell About the Trump Administration’s Focus on Compliance?
Annette K. Ebright and Sarah F. Hutchins
There are a few early signs that the Trump administration will continue to hold companies to the “way of compliance.” But after the first five months of his presidency, there are still questions about where enforcement is heading in specific compliance areas.
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Business Crimes Bulletin
The Arrival of Justice Gorsuch May Bring Opportunity to Reform the Collective Entity Doctrine
Preston Burton, Bree Murphy and Leslie Meredith
Recognizing a Fifth Amendment privilege for corporations — whether through wholesale abolition of the collective entity doctrine or by recognizing some limited exception for custodians of smaller corporations — would not foreclose meaningful white-collar prosecutions, but it would restore protection of the Fifth Amendment rights of individuals who are sacrificed under the current bright-line rule. Will Justice Gorsuch help in this endeavor?
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The Corporate Counselor
DE Corporate Law and Chancery Review
Francis G.X. Pileggi
Analysis of three recent decisions from the Delaware Court of Chancery that provide useful legal insights for corporate executives and those who counsel them.
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Business Crimes Bulletin
SEC Takes Aim at Political Contributions by Investment Advisers
Joseph F. Savage, Jr. and Stephanie M. Aronzon
While it remains unclear both when the regulators will invoke their authority to enforce the nearly limitless strict liability provision of the rules and how they will determine the appropriate remedy, the recent settlements and the SEC's handling of exemptive relief petitions may provide some clues.
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Business Crimes Bulletin
The Internal Audit Function
William Floyd
The International Professional Practices Framework released last year by the IIA is intended to provide guidance for internal auditors, by seeking to focus on core principles. The framework identifies 10 core principles that describe or guide what an effective internal audit function should focus upon and to what it should adhere.
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