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Although landlords and tenants often have different views on various topics, they share a common interest in protecting their premises against theft. Until recently, security considerations were generally limited to decisions concerning appropriate locks and the installation of stout hardware. In the new millennium, however, securing electronic entryways to premises may be of even greater importance, and it behooves landlords and tenants alike to keep abreast of developments in computer-related security breaches. In particular, landlords and tenants must be alert to a variety of identity theft threats, including phishing scams, in which they receive an e-mail from a seemingly reputable company (eg, a tenant receives an e-mail that appears to be from the landlord) that attempts to obtain personal information from the recipient when in fact the e-mail was sent by an identity thief.
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The continuing drama relating to the demise of the Yukos Oil Company, Russia's leading oil company, has generated two U.S. bankruptcy proceedings that have raised some of the most interesting cross-border insolvency issues in the last year. Both proceedings emanate from the pitched battle between Yukos' management and equity investors, on the one hand ' who assert that the Russian government is expropriating the company for its own benefit in violation of Russian and international law ' and the Russian government and an interim insolvency receiver appointed by a Russian court (the 'Receiver'), on the other hand ' who assert that Yukos' management caused the company to commit a tax fraud of approximately USD $27.5 billion that can only be resolved in a Russian court.
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Investor confidence and market behavior can be impacted greatly by events that do not necessarily correlate. In the case of the Bayou Hedge Funds fraud, these unique and non-recurring events fueled a fire in the hedge fund industry that has spread, but not necessarily due to the particulars of the Bayou Hedge Funds failure. But, when dealing with significant investments made by pension funds, corporate entities, along with foundations and trusts, a healthy dose of skepticism is natural and appropriate. Not unlike the transition from the Enron scandal to the formation of the Public Company Accounting Oversight Board, hedge fund investors may extrapolate the troubles at the Bayou Hedge Funds to all hedge funds. As a result, questions of the need for regulatory oversight for a stronger accountability within the industry arise.
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In this age of regulatory and prosecutorial focus on corporate compliance, companies increasingly are relying on special outside counsel to conduct internal investigations into potential wrong-doing. Sometimes, these investigations are prophylactic: A company may want to understand the consequences of its current hiring prac-tices so it can develop standard operating procedures to better ensure compliance with anti-discrimination laws. Because this sort of pro-active, self-reflective investigation generally proceeds in the absence of outside scrutiny, counsel has the time and space to conduct a deliberate investigation.
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At press time, U.S. Deputy Attorney General Paul J. McNulty revised the controversial 'Thompson Memorandum.' A new 'McNulty Memorandum' was issued after harsh criticism from District Judge Lewis A. Kaplan in the KPMG case and a proposal by Senator Arlen Specter (R-PA) to abrogate the Thompson Memorandum by act of Congress. Look for an in-depth analysis in our February Issue.
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Counsel for companies faced with criminal violations of securities laws must maneuver carefully through a gamut of factors to determine whether to voluntarily disclose criminal conduct. A corporation may face administrative and criminal sanctions for non-cooperation from both the Department of Justice (DOJ) and the SEC. But the DOJ's 'Thompson Memorandum' also bestows attractive benefits for cooperation, measured in part by the corporation's willingness 'to disclose the complete results of its internal investigation.' The prosecution may grant a corporation 'immunity or amnesty or pretrial diversion' or 'a non-prosecution agreement in exchange for cooperation.'
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Key rulings of interest to you and your practice.