David E. Brodsky, a partner at Cleary Gottlieb Steen & Hamilton, and Timothy M. Haggerty, an associate at the firm, write that two recent decisions, one involving a billionaire investor, the other a computer hacker, have shed light on the kind of deceptive conduct that can transform trading on non-public information into a §10(b) violation. Those decisions, they say, also illuminate another important point in insider trading law: An "outsider" can violate §10(b) even in the absence of a fiduciary duty to the source of the information or to the company whose stock is traded.
Daniel Margolis, a partner at Pillsbury Winthrop Shaw Pittman, and Anne Lefever, an associate at the firm, write that there is a controversy brewing in the Southern District of New York over the correct interpretation of the term "proceeds" as used in the Civil Asset Forfeiture Reform Act. To further the confusion, they say, courts have also recently been divided in interpreting the term in the money laundering context.
Free With Registration: The Incredible Shrinking FCPA Facilitation Payment Exception
John K. Carroll, a partner at Skadden, Arps, Slate, Meagher & Flom, and Lisa K. Marino, an associate at the firm, write: When the FCPA was passed, Congress was confronting a global business environment where U.S. laws were far more proscriptive of corrupt payments. The softly spoken argument that U.S. companies had to be able to make some corrupt payments to compete with their foreign counterparts had much greater force than it does today, when local law in many foreign jurisdictions has evolved to prohibit corrupt payments to government officials. In the absence of any legislative action to roll back the facilitation payment exception, which allows a narrow group of foreign bribe payments, the DOJ and the SEC plainly have set out to repeal it on a case-by-case basis.
Barry R. Temkin, counsel to Mound Cotton Wollan & Greengrass and an adjunct professor at Fordham University School of Law and New York Law School, writes: While the use of undercover investigators employed by federal and state prosecutors is clearly constitutional, there is little ethical guidance for the lawyers who supervise these present-day Donnie Brascos. Moreover, if prosecutors may ethically employ lying investigators, what about defense lawyers and civil practitioners?
