LJN Newsletters

Recent corporate scandals have cast a harsh light on executive compensation practices ' including deferred compensation plans benefiting officers, directors and high-level executives. As part of the American Jobs Creation Act signed by President Bush on Oct. 22, 2004, Congress added Section 409A to the Internal Revenue Code. Section 409A imposes numerous restrictions on non-qualified deferred compensation plans (NQDCs) and will introduce a new compliance regime in the executive compensation arena.

In the business world, risks are commonplace and an inherent part of doing business. The goal of any business, however, is to minimize the risks that it faces ' in the most efficient manner, using the minimum amount of resources. One of the keys to running an efficient and effective business is knowing how to manage risks in the context of the overall business strategy. In the IP arena, risks management is also possible, and it begins with the IP Audit.

Recent rulings of importance to you and your practice.

U.S. Sentencing Commission statistics indicate that companies charged with federal crimes have been doing an awful job of creating effective programs to detect and deter employees' criminal acts. According to the Commission, of the more than 850 companies convicted of crimes from 1995 through 2002, only two had a compliance program that a federal judge recognized as effective. In one respect, this is not surprising, as federal prosecutors routinely argue that if a company had an effective compliance program, the company wouldn't have committed the crime in the first place, and the court wouldn't be spending its time in a sentencing hearing.

National rulings you need to know.

On Jan. 12, the Supreme Court, in United States v. Booker, found portions of the Federal Sentencing Guidelines unconstitutional. For the last few years, corporate officers and directors have been forced to take a personal interest in criminal justice and in the Sentencing Guidelines. This has been especially true after the United States Sentencing Commission raised the guideline's penalties for white-collar crime in response to the Sarbanes Oxley Act of 2002.

The FTC estimates that over 24 million people in the United States have had their identity stolen. Using the $11,000 damage figure per case developed above, that represents over $26 billion of potential liability if fault can be ascribed to the data holder. Customer and employee databases are prime targets for identity thieves because a single vulnerability in a company's information security can yield access to personal data on thousands of persons. In addition to the growing threat of class-action lawsuits, new laws are coming into effect to hold organizations responsible for securing personal data. Companies should evaluate this risk and consider taking action to reduce their potential liability.

The corporate scandals of the past several years have shaken the investing public. In response, state attorneys general like New York's Eliot Spitzer have shown what state regulators can accomplish with an ambitious agenda, talented personnel, and the right statutory tools. With Attorney General Spitzer leading the charge, state attorneys general have played an increasingly active role in matters traditionally handled without state intrusion by the SEC and other federal regulators. This increased state activism has not been free of controversy. In a recent interview, we asked Spitzer about the causes and consequences of that activism and what the future holds. His answers, and the recent activities of his counterparts in other states, confirm that state attorneys general are in no hurry to return to the status quo ante. Like it or not, the states are here to stay.