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Honest-Services Fraud in the Wake of Skillings
The Supreme Court has tried again to restrict application of the honest-services fraud statute (18 U.S.C. ' 1346), which has been zealously used by prosecutors to target a wide swath of allegedly unethical behavior by public officials and private employees alike. In Skilling v. United States, the Court “pared” honest-services fraud to what the majority perceived as the provision's core: fraudulent schemes to deprive another of honest services through bribes or kickbacks. 130 S. Ct. 2896, 2928 (2010). The Court majority rejected the government's contention that the law also reached so-called “undisclosed self-dealing” by public officials and private employees. It warned Congress “to speak more clearly than it has” if it intends for the statute to cover undisclosed self-dealing. Justice Scalia, joined by two other Justices, agreed to reverse Skilling's conviction, but would have gone further and declared ' 1346 unconstitutionally vague.
Background
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.