• Compliance,  Sentencing

    Mine Blast Plea: Dust, Documents and Deaths

    As the  article (via @Law360) points out, Ex-Massey Exec Gets 42 Months In Mine Blast Case this Massey mining manager pleaded to “pre-notifying” about MSHA inspections (and conspiracy pertaining thereto).  It’s interesting that, in his plea colloquy, he was was apparently careful and narrow, almost ascribing a business-culture source for the conduct: “I’m sorry for what I’ve done — pre-notifying about mine inspections,” Hughart said at his sentencing, according to the Associated Press. “I grew up that way. I accepted it as common practice. I know better now, and I apologize.” That kind of approach needs to be handled gingerly, though.  The larger case landscape is important for sentencing considerations…

  • Compliance,  Fifth Amendment,  International

    The Border, Searches and the Digital Devices of Executives and Employees

    Here’s a story (via @nytimes) about how the border is a back door for device searches. There is, of course, a “border exception” to the Fourth Amendment, a constitutional doctrine that came of age when national physical borders were also, usually, information-borders as well.  Although the discussion in the article takes place in the national-security context, it’s worth American companies giving more careful thought to how they address the way their executives and employees work and travel.  Employees usually love using their own devices and storing company data in ways that are readily accessible to and productive for them. At the border, though, all that corporate data is free game.…

  • Bank Fraud,  Compliance

    What They’re Saying About White Collar Wire: “Sage advice . . . to any American citizen.”

    Generous comments from Professor Michael Greve at Liberty Law Blog: You can follow much of the current action [regarding banking and regulation] on WhiteCollarWire, which provides sage advice to bankers and, indeed, any American citizen: “Don’t read us because you’re a criminal. Read us because, some time or other, someone may think you are.” (In addition, the site provides fine literature reviews and martini recipes.)

  • Compliance,  SEC

    SEC Goes To Bat For Misled Compliance Officer

    From The Wall Street Journal Risk & Compliance blog (and Samuel Rubenfeld @srubenfeld):  Good news for corporate compliance officers whose officers or employees lie to them or mislead them:  SEC Stands Up For Compliance Officers  The Securities and Exchange Commission took the side of compliance officers — after a Colorado-based investment adviser was caught lying to one.   Earlier this week, the SEC said its own probe found that Carl Johns, an investment adviser in Louisville, Colo., concealed several hundred trades in his personal accounts after failing to report them by altering brokerage statements and other documents. He later created false documents that purported to be pre-trade approvals, and misled…

  • Compliance,  Technology

    What Happens When He “Shit-Cans The Laptop”? An Ex-Employee and “Exceeds Access” Under The CFAA

    From Professor Susan Brenner at Cyb3rCrim3: Once again, in a dispute between a company and a former employee — The Shit-Canned Laptop — under the  federal Computer Fraud and Abuse Act, the federal district court finds that the narrow interpretation of “exceeds access” is the appropriate understanding of the statute.  The court in  Dresser-Rand Co. v. Jones, 2013 WL 3810859 (2013), recognized a   split between what is cast as a broad versus a narrow interpretation of the term `without authorization.’ Under the narrow view, an employee given access to a work computer is authorized to access that computer regardless of his or her intent to misuse information and any…

  • Compliance,  Costs, Budgets and Fees,  FCPA

    Less Law Department Budget, More Growth, Unknown Compliance: What’s The Corporate Ethos?

    In an era of flat or barely budging general-counsel or risk-management budgets, the question of  Balancing Budgets and Growth, especially for a multinational company, can be brutal.  Creating a compliance structure that looks cool on paper (or digitally) is one thing; testing actual performance is another.  As in most areas that test human willfulness and weakness against human laws, only the overriding culture and ethos will save the day (or cause the day to fail).

  • Compliance,  FCPA

    Honor and the FCPA

    This is a compelling question: FCPA Professor on Trust in the Corporation Can a culture of trust — of honor — work better as a corporation’s FCPA defense than a labyrinth of rules?  This is not merely a “tone at the top” kind of question.  Rather, it requires a commonly-shared landscape of what is honorable conduct; a handful of commonly-shared principles of comportment; everyone’s understanding that this system works to the benefit of all; and a single-sanction intolerance for whatever wanders outside that ethical landscape. Even if the honor-culture is more effective than checking-off-the-boxes in your department’s compliance template, how does a company in an FCPA case defend the honor-culture…