Sky Blog
For over two decades, the federal government has employed roughly the same approach to corporate crime. Prosecutors promise leniency in exchange for corporations’ commitment to improve the internal structures and systems that ensure their employees’ compliance with law. Over the …
In an effort to incentivize investment in robust antitrust compliance programs, the Antitrust Division of the U.S. Department of Justice (“DOJ”) announced on July 11, 2019 that companies may now receive credit at charging and sentencing for effective antitrust compliance …
Corporate leaders may wish to revisit the important yet sensitive topic of reporting relationships in compliance programs following the release of new guidance from the Department of Justice’s Criminal Division.
That guidance, entitled Evaluation of Corporate Compliance Programs[1], …
What is the purpose or motivation of corporate criminal punishment? What kinds of punishments ought we impose? While such questions may seem lofty, they are important nonetheless. Strict pragmatists who reject the goal of developing penal theory and focus only …
On April 30, 2019, the Criminal Division of the U.S. Department of Justice (“DOJ” or “the Department”) announced updated guidance for the Criminal Division’s Evaluation of Corporate Compliance Programs (“the Guidance”) in charging and resolving criminal cases.[1] Assistant Attorney …
Compliance programs are ubiquitous and necessary in today’s institutions, yet these programs often fail to prevent misconduct. When investigating Michigan State University in the wake of the Larry Nassar scandal, for instance, the NCAA found no flaw with the university’s …
The General Data Protection Regulation (GDPR) has been in effect since May 2018. Although the French data protection authority (CNIL) has imposed the highest fine to date — €50 million on 21 January 2019 — German federal data protection authorities …
In a recent paper,[1] I argue that the criminal law needs what I call a functional approach to corporate knowledge. When the law treats corporations as though they know things, it affects how they manage information. Knowledge, in one …
On November 14, 2018, the Commodity Futures Trading Commission (CFTC) Division of Enforcement released an annual report, apparently the first of its kind.1 In a speech given at New York University School of Law, James M. McDonald, director of …
Lending in China is a risky proposition. When a U.S. bank needs to decide whether to approve a loan to a U.S. customer, it simply accesses the customer’s credit report, which is often the deciding factor. The bank can thus …
The past year has seen continued evolution in the political, legal and economic arenas as technological change accelerates. Innovation, new business models, dealmaking and rapidly evolving technologies are transforming competitive and industry landscapes and impacting companies’ strategic plans and prospects …
Earlier this year, the Securities and Exchange Commission (SEC) issued guidance regarding “robo-advisers,” automated investment advice tools accessed via web-based or mobile platforms with minimal human interaction.1 The guidance is an important reminder to the industry that robo-advisers are …
In June, the Office of the Comptroller of the Currency (OCC), the regulator of national banks, federal savings associations, and federal savings banks, issued additional guidance on the oversight and risk management of third-party relationships (Bulletin 2017-21). The guidance takes …
Corporations have been making news recently with repeated violations of the law. In some cases, such as financial services, the violations have occurred across large segments of an industry. Enforcement officials have imposed billions of dollars in sanctions against all …
A significant emerging governance issue is how best to monitor – and influence – the management style of senior executives who by nature are insensitive to the risks of their initiatives. As recent controversies across multiple industry sectors confirm, such …
On April 7th, the Department of Labor (“DOL”) published its final rule[1] delaying the applicability dates of its rule changing the definition of the term “fiduciary” (the “Fiduciary Rule”) and related prohibited transactions exemptions (“PTEs”) by 60 days, as …
The Foreign Corrupt Practices Act has specific elements that must be met in order for there to be a violation. However, with increasing frequency it appears that the Department of Justice and the Securities and Exchange Commission have transformed FCPA …
When high-profile cases of fraud make the news, we often focus our attention on the CEO or other C-suite executives, asking what signs were missed and how we might better anticipate who might commit fraud. Academics have researched the characteristics …
In 2016, the Securities and Exchange Commission (SEC) issued a Concept Release on Regulation S-K as part of its comprehensive review of the effectiveness of federal disclosure rules. The release included for the first time a request for comment on …