Challenges in Preparing a Prenup Agreement
February 28, 2006
The seminal modern case on marital contracts is <i>Christian v. Christian</i>, 42 NY2d 63 (1977). In that case, which involved a post-marital separation agreement, the Court of Appeals held that such agreements that are regular on their face should be binding and valid unless shown to be otherwise, but may be set aside if grounds are demonstrated which would serve to vitiate an ordinary contract. Judicial review in this regard was to be "exercised circumspectly, sparingly and with a persisting view" toward encouraging parties to settle their disputes ...
Child Abuse Deaths Prompt Massive Overhauls
February 28, 2006
Commissioner John B. Mattingly of New York City's Administration for Children's Services (ACS) recently issued a statement following the occasion of his 1-year anniversary at his post. Among the accomplishments trumpeted was the fact that his agency had "continued the historic decline in the number of New York City children living in foster care -- passing the 20,000 mark, the 19,000 mark, and the 18,000 mark, to the current census of nearly 17,300." Following publicity surrounding the recent deaths of several children in their homes after their families came under ACS's scrutiny -- some of them reunited with those families after initially having been taken away and others who arguably should have been separated from their families
Parallel Proceedings: Establishing the Boundaries
February 27, 2006
An investigation by the SEC is always cause for great concern by corporations, executives and their attorneys. In recent years, there has been reason for even greater concern due to prosecutors' increased focus on corporate fraud and the resulting increase in "parallel proceedings." Parallel proceedings involve simultaneous or successive investigations and/or litigation of separate criminal and civil actions by different government agencies arising out of the same set of facts. This trend requires defense counsel to assess whether corporations and individuals may be subjects of a criminal investigation in cases that would not have given rise to such scrutiny several years ago. Faced with possible criminal liability, clients and counsel must carefully evaluate and weigh the potential benefits of cooperating in an SEC civil investigation versus the very real possibility of furnishing incriminating information to the government for use in a criminal proceeding.
In The Courts
February 27, 2006
The latest rulings you need to know.
The Whens and Whys of Asserting Fifth Amendment Privileges
February 27, 2006
The Fifth Amendment's protection against self-incrimination is one of the foundational rights of the America justice system. It provides that "no person ... shall be compelled in any criminal case to be a witness against himself." It protects witnesses from what Justice Field called the "cruel trilemma of self-accusation, perjury, or contempt." <i>Brown v. Walker</i>, 161 U.S. 591, 637 (1896) (Field, J., dissenting). In this post-Enron era of corporate prosecutions, it is critical that corporate insiders understand the scope of the Fifth Amendment's protection.
Is Your Hotline AAA-Rated?
February 27, 2006
Many organizations have hotlines that are needlessly weak or even ineffective, and they often don't even know it. There are no up-to-date, authoritative standards for hotlines. This has forced SEC registrants and their auditors to use an unusually high degree of judgment in evaluating the effectiveness of hotlines for Sarbanes-Oxley ' 404 reporting. Non-registrants are even more vulnerable to "phantom hotline syndrome."
Civil RICO Claims And Immigration Law Violations
February 27, 2006
Can a U.S. corporation and agents acting on its behalf constitute an "enterprise" under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ''1961-1969 (RICO)? If the answer is yes, U.S. corporations which use outside entities to carry out any of their business functions could find themselves liable under RICO for a broader range of corporate conduct than ever before, which would almost certainly have a chilling effect on U.S. business activities. So far, the Courts of Appeals have split when addressing this question. However, as is customary when there is a conflict in the Circuits on an important federal issue, the U.S. Supreme Court recently agreed to resolve this conflict in <i>Mohawk Industries, Inc. v. Shirley Williams et al.</i>, and will soon provide much-needed guidance.
Building A State- of-the-Art Anti-Bribery Program
February 27, 2006
Anti-bribery laws have serious consequences for ordinary companies doing business internationally. Violations come to light during routine M&A due diligence, when competitors complain or employees blow the whistle, or when companies voluntarily disclose as a part of their Sarbanes-Oxley reporting obligations. When they do come to light, strong internal controls may shield executives from some liability and restore confidence amongst shareholders and regulators. <br>To mitigate the risk arising out of events like these, every company operating internationally should have a compliance program. The critical elements of a robust program are clear. With the right combination of leadership, training, and follow-up, companies can increase their chances of preventing or catching employees determined to break the law. An effective anti-bribery program need not be expensive or labor-intensive, but it does require management commitment, a systematic roll-out, widespread training, and diligent follow-up.
Libeling Lawnmowers?
February 27, 2006
The tort of commercial disparagement falls generally within the penumbra of libel and slander-related claims, although it is overshadowed by the more commonly recognized version of the tort relating to personal claims (like those celebrities frequently bring against supermarket tabloids). Yet not only are claims based upon the libeling of an object a legitimate cause of action, they can result in verdicts for plaintiffs. A better understanding of this little-known tort is necessary if a company is to evade the risks it poses.
