First Sarbanes-Oxley Whistleblower Decision
June 29, 2004
In the first ruling applying the whistleblower protections of the Sarbanes-Oxley Act of 2002, 18 U.S.C. ' 1514A, an Administrative Law Judge (ALJ) ordered a bank holding company to rehire its former Chief Financial Officer (CFO), after finding that the company fired the CFO in retaliation for reporting alleged accounting misconduct to the company's Chief Executive Officer (CEO), outside auditors, and others.
Is Bribing Foreign Tax Collectors a Federal Crime?
June 02, 2004
Just when there appears to be a significant uptick in investigations for violations of the Foreign Corrupt Practices Act (FCPA), the Fifth Circuit has issued a decision that sows further confusion over the meaning of the FCPA's criminal prohibitions.
Does 'Cooperation' Obscure the Truth?
June 02, 2004
Nowadays more than ever, accusations of business crime must be put to the test, since the stakes in this post-Enron era are at an all-time high for an accused company's survival and its executives' personal liberty and reputation. The way we test allegations in Anglo-American law is through the adversary system. Yet, just when it's needed the most, the adversary system is increasingly sidelined. For the public company, adversarialism may no longer be an option at all.
In The Courts
June 02, 2004
National cases of interest to your practice.
How to Make the SEC Disgorge Exculpatory Evidence
June 02, 2004
In the post-Enron world, the SEC is ratcheting-up the stakes in many of its cases. With millions of dollars in increased funding and hundreds of additional staff, it is bringing more cases, seeking harsher penalties, and generally litigating more aggressively. If recent press releases are indicative, it is also increasingly coordinating its civil enforcement activities with criminal investigations by the Department of Justice. As one SEC district administrator stated in a recent newspaper interview: "People are looking for heads. And we're going after them."
No More 'Free Pass' for Foreign Citizens
May 07, 2004
When a US company settles a criminal antitrust case by pleading guilty, the Justice Department (DOJ) now usually requires that at least one executive receive a prison sentence. But what about foreign companies? In the past, DOJ often prosecuted foreign companies, but not foreign executives. Prosecution of foreign executives raised questions of diplomacy, since the United States until recently was the only nation that made antitrust violations a crime. Then there was the practical problem of how to arrest a foreign citizen overseas. Besides, the Bureau of Prisons (BOP) policy was to deport non-violent, non-US citizens instead of housing them at US taxpayers' expense, and the Immigration and Naturalization Service (INS) barred foreign felons from the country.
The War on Judicial Sentencing Discretion
May 07, 2004
The face of federal sentencing law, policy and practice has changed dramatically over the past year ' not just for individual criminal defendants, but for corporations as well. Sentencing laws that were stiff before have now become even more onerous, and the opportunities for leniency under the new regime are scarce. This article discusses the legislative and policy changes that specifically impact sentencing for corporations.
