Government Investigations & White Collar Crime (J)



 

The Government Investigations & White Collar Crime Specialty Group has been activated in response to extensive interest exhibited by TAGLaw members, especially in the U.S. and particularly since the passage of the Sarbanes Oxley legislation (also known as SARBOX or SOX.)


Meet the Co-chairs - TAGLAW


Hines, Melanie Ann
Berger Singerman LLP
mhines@bergersingerman.com


Meet the Co-chairs - TIAG


Ray, Dan CPA/CFF, CFE
Hemming Morse, LLP
rayd@hemming.com


Government Investigations & White Collar Crime (J)


“Put his own interests above those of the company”

“Buried his head in the sand”

“May not have undertaken their duties in a fit and proper manner”

 

…. just a few quotes taken from recent proceedings against company officers.

Of course, these may be great soundbites for an article of this kind, but not words any executive would wish to  hear, not least when applied to the exercise of his or her corporate and/or fiduciary duties owed to a company.

 

Whether concerning health and safety failings, corporate governance, regulatory matters or fraud, we at DQ Advocates are seeing a clear trend - an increasing emphasis being placed on company officers and their lack of action or wilful blindness when it comes to criminal prosecutions.

Read more: Company Officers Under Increasing Scrutiny…but help is at hand


The liability of legal entity for offences committed in their organizational context and for their benefit is a reality in a growing number of countries. In fact, most European states have internal regulations in this area that adapt the various existing EU Directives.

Read more: The International Obligation to Have a Compliance Program


Authors: Laurel Brandstetter and Danielle Morrison

On February 21, 2018, the U.S. Supreme Court ruled in Digital Realty Trust Inc. v. Somers that “Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC.” The Justices unanimously agreed in the judgment of the Court, though a minority wrote concurring opinions to articulate different rationales. Although this decision narrows the definition of “whistleblower” and protects companies in certain respects, business leaders should now examine their internal compliance systems to ensure the new incentives for employees to report directly to the U.S. Securities and Exchange Commission (SEC) does not have unintended consequences for addressing and resolving potential problems.

Read the entire article.


Due to the importance of the issue of the Corporate Criminal Compliance at both national and international level, Bufete Escura has prepared and article in order to inform about the criminal liability of legal entities which is generating a growing jurisprudential body that develops the legal provisions in this regard, since these are not always sufficient to answer all the questions that arise. Hereby, Bufete Escura analyses the case of transnationality under the frame of Corporate Criminal Compliance.

One of the issues is the case of transnationality is what happens in cases in which the legal entity judged is foreign.

Article 23.1 of the Judiciary Spanish Law (LOPJ) states that "In the criminal order shall correspond to the Spanish jurisdiction the knowledge of the causes for crimes and offenses committed in Spanish territory (...), without prejudice to the provisions of the international treaties in which Spain is a part". In the case of a foreign legal entity that committed a crime in Spain, the judgment of the Supreme Court 583/2017, July 19th, Supremo upheld the conviction that the National Court had previously imposed on a company in Mali that had committed a crime of money laundering in Spain. Actually, this company had been condemned for a crime against public health in the previous judgment of the Supreme Court 154/2016, February 29th.

Read the entire article.


Abstract: Following the major changes introduced in Spain by the Organic Law 1/2015, we consider appropriate to write these short lines about the drafting of Article 31 bis of the Spanish Penal Code, which governs, although in a way not quite complete, the criminal liability of legal persons.

The reform of the Spanish Penal Code given by the Organic Law 1/2015 introduces in Spain, for the first time, a complete "Corporate Compliance" system.

Read more: Corporate Criminal Compliance in Spain