In securities markets, insider trading is a crime. In commodities, insider trading is almost completely legal. This divergent treatment has long been accepted as appropriate, given perceived differences between the markets. For example, it has been thought that futures traders are sophisticated enough to neither need nor want protections from informed traders, and that the assets traded – corn, copper – do not lend themselves to insider trading anyway.This Article disagrees, showing that purported differences between these two markets do not withstand serious scrutiny, and that insider trading is harmful in the same ways in both markets and should be governed by the same restrictions. Understanding securities and commodities markets to be peer financial markets permits for the first time a serious dialogue between scholars of both fields, and this Article takes the first steps to applying theories from the securities literature to commodities markets and holding those theories up for verification or falsification against new data from commodities markets.
{"title":"Insider Trading in Commodities Markets","authors":"Andrew Verstein","doi":"10.2139/SSRN.2568140","DOIUrl":"https://doi.org/10.2139/SSRN.2568140","url":null,"abstract":"In securities markets, insider trading is a crime. In commodities, insider trading is almost completely legal. This divergent treatment has long been accepted as appropriate, given perceived differences between the markets. For example, it has been thought that futures traders are sophisticated enough to neither need nor want protections from informed traders, and that the assets traded – corn, copper – do not lend themselves to insider trading anyway.This Article disagrees, showing that purported differences between these two markets do not withstand serious scrutiny, and that insider trading is harmful in the same ways in both markets and should be governed by the same restrictions. Understanding securities and commodities markets to be peer financial markets permits for the first time a serious dialogue between scholars of both fields, and this Article takes the first steps to applying theories from the securities literature to commodities markets and holding those theories up for verification or falsification against new data from commodities markets.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114773030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is no news that the Companies and Allied Matters Act (“CAMA”) restricts the ability of a company to purchase its own shares, while allowing only few instances when a company may acquire its own share. Worth noting is that several postulations have been put forward as the rationale for this apparent restriction. For one, the argument has been made in certain quarters that this restriction was important in order to prevent fraud as some unscrupulous “managers” of a company could create an artificial “bubble” or impression of buoyancy of the shares of a company and ultimately fuel dangerous speculative trading of share by repurchasing those shares with loans. Meanwhile, proponents of share buybacks have equally argued that there is a need for companies (quoted) to reduce their shares and create scarcity; revive the stock market and ensure that value is given to investors. Arguments have further been canvased that buy back of shares allows a company to return to shareholders, surplus cash that the company itself is unable to invest efficiently in profitable investment projects and also assists a company to bolster or stabilize the market price of its shares. Although a number of writers have opined on the concept of share buybacks and rationale for share buybacks, there remains paucity of literature, if any at all, on whether share buyback is actually illegal in Nigeria. This paucity has however not helped the emergence of two schools of thoughts: first being that share buyback is illegal and the second being that there is nothing illegal about share buyback. It is equally worth noting that different interpretations have been provided to the statutory provision restricting the ability of a company to acquire its own share in Nigeria. It is in this wise that it becomes imperative to examine: (x) the common law position; (y) the concept of share buyback and its ambit under the Nigerian law; and (z) whether share buyback is actually illegal as argued in certain quarters.
{"title":"What Is Illegal About Share Buybacks in Nigeria?","authors":"J. Onele","doi":"10.2139/SSRN.2731858","DOIUrl":"https://doi.org/10.2139/SSRN.2731858","url":null,"abstract":"It is no news that the Companies and Allied Matters Act (“CAMA”) restricts the ability of a company to purchase its own shares, while allowing only few instances when a company may acquire its own share. Worth noting is that several postulations have been put forward as the rationale for this apparent restriction. For one, the argument has been made in certain quarters that this restriction was important in order to prevent fraud as some unscrupulous “managers” of a company could create an artificial “bubble” or impression of buoyancy of the shares of a company and ultimately fuel dangerous speculative trading of share by repurchasing those shares with loans. Meanwhile, proponents of share buybacks have equally argued that there is a need for companies (quoted) to reduce their shares and create scarcity; revive the stock market and ensure that value is given to investors. Arguments have further been canvased that buy back of shares allows a company to return to shareholders, surplus cash that the company itself is unable to invest efficiently in profitable investment projects and also assists a company to bolster or stabilize the market price of its shares. Although a number of writers have opined on the concept of share buybacks and rationale for share buybacks, there remains paucity of literature, if any at all, on whether share buyback is actually illegal in Nigeria. This paucity has however not helped the emergence of two schools of thoughts: first being that share buyback is illegal and the second being that there is nothing illegal about share buyback. It is equally worth noting that different interpretations have been provided to the statutory provision restricting the ability of a company to acquire its own share in Nigeria. It is in this wise that it becomes imperative to examine: (x) the common law position; (y) the concept of share buyback and its ambit under the Nigerian law; and (z) whether share buyback is actually illegal as argued in certain quarters.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129779773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In response to perceived corporate governance shortcomings in major U.S. corporations, the U.S. Department of Justice, starting in 2002, substantially increased the execution of non- and deferred prosecution agreements (N/DPAs). This study examines investor responses to three events that define N/DPAs and N/DPA mandated governance improvements, specifically, the official DOJ press release announcing the execution of an N/DPA, the date of the start of the term of the N/DPA, and the date of the end of the term of the N/DPA. Our hand-selected dataset comprises all institutions that executed N/DPAs from 1993 to 2014 (N=301) and are publicly traded (N=94). We document a significant and predictable positive stock price response to the DOJ press release and the start of the N/DPA term. Our tests indicate that the market interprets the three events not in isolation but as sequential and conditional events. We also find that investor’s response differs depending on the industry and severity of financial fines and N/DPA mandated governance improvements. We observe no systematic price momentum beyond the three core dates identified in our study, implying that the market is reasonably efficient with respect to information about N/DPAs. Our results are robust to alternative procedures and definitions.
{"title":"Stock Price Response to Non- and Deferred Prosecution Agreements","authors":"Wulf A. Kaal, Timothy Lacine","doi":"10.2139/ssrn.2629451","DOIUrl":"https://doi.org/10.2139/ssrn.2629451","url":null,"abstract":"In response to perceived corporate governance shortcomings in major U.S. corporations, the U.S. Department of Justice, starting in 2002, substantially increased the execution of non- and deferred prosecution agreements (N/DPAs). This study examines investor responses to three events that define N/DPAs and N/DPA mandated governance improvements, specifically, the official DOJ press release announcing the execution of an N/DPA, the date of the start of the term of the N/DPA, and the date of the end of the term of the N/DPA. Our hand-selected dataset comprises all institutions that executed N/DPAs from 1993 to 2014 (N=301) and are publicly traded (N=94). We document a significant and predictable positive stock price response to the DOJ press release and the start of the N/DPA term. Our tests indicate that the market interprets the three events not in isolation but as sequential and conditional events. We also find that investor’s response differs depending on the industry and severity of financial fines and N/DPA mandated governance improvements. We observe no systematic price momentum beyond the three core dates identified in our study, implying that the market is reasonably efficient with respect to information about N/DPAs. Our results are robust to alternative procedures and definitions.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123228147","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The FCPA should be amended to include a private right of action in order to hold MNCs to a heightened standard of liability for their foreign corruption. This amendment is needed because the current mechanisms by which MNCs are held liable are all drastically inadequate, and rely on governments, that lack the political will or resources, to prosecute MNCs. It is important to prosecute MNCs for bribery of foreign officials because it acts as a deterrent to corruption and sets a moral standard that MNCs are accountable the host governments that give rise to their existence.
{"title":"A Private Right of Action for the FCPA: Bringing Rule of Law to Failed States","authors":"A. Leibold","doi":"10.2139/ssrn.2620517","DOIUrl":"https://doi.org/10.2139/ssrn.2620517","url":null,"abstract":"The FCPA should be amended to include a private right of action in order to hold MNCs to a heightened standard of liability for their foreign corruption. This amendment is needed because the current mechanisms by which MNCs are held liable are all drastically inadequate, and rely on governments, that lack the political will or resources, to prosecute MNCs. It is important to prosecute MNCs for bribery of foreign officials because it acts as a deterrent to corruption and sets a moral standard that MNCs are accountable the host governments that give rise to their existence.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124519382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court (Lord Neuberger PSC and Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson JJSC) heard the case of R v GH (Respondent) [2015] UKSC 24 (22 April 2015) on appeal from a judgment of the Court of Appeal (Lloyd Jones LJ, Irwin and Green JJ) reported at [2013] EWCA Crim 2237. Unanimously allowing the appeal of the Director of Public Prosecutions (DPP), giving the only judgment Lord Toulson held at para 47 that the “character of the money did change on being paid into the respondent’s accounts.” This case involved fraud. It had been perpetrated through the Internet via four “ghost” websites falsely pretending to offer cut-price motor insurance. To execute his plans, B used associates who opened bank accounts for transmitting the proceeds generated by the scam and H was an associate of this nature. The Supreme Court held that section 328 of the Proceeds of Crime Act 2002 (POCA) does not require property to constitute criminal property before an arrangement came into operation because such a construction is likely have serious potential consequences in relation to banks and other financial institutions.
最高法院(Neuberger勋爵PSC和Kerr勋爵、Reed勋爵、Hughes勋爵和Toulson勋爵JJSC)就上诉法院(Lloyd Jones LJ、Irwin和Green JJ)在[2013]EWCA Crim 2237号报道的判决提出上诉，于2015年4月22日审理了R诉GH(被告)一案。一致同意公诉署署长(DPP)的上诉，给出了Toulson勋爵在第47段中唯一的判决，即“这笔钱在进入被告账户后确实发生了变化”。这个案子涉及欺诈。它是通过互联网通过四个“幽灵”网站进行的，这些网站虚假地假装提供降价汽车保险。B某为了执行诈骗计划，利用在银行开设账户以转移诈骗所得款项的同伙，而H某是这种性质的同伙。最高法院认为，《2002年犯罪收益法》(POCA)第328条没有要求财产在安排生效之前构成犯罪财产，因为这种建设可能对银行和其他金融机构产生严重的潜在后果。
{"title":"UK Supreme Court Case Note: The Meaning of 'Criminal Property' in POCA 2002","authors":"A. Khan","doi":"10.2139/SSRN.2602485","DOIUrl":"https://doi.org/10.2139/SSRN.2602485","url":null,"abstract":"The Supreme Court (Lord Neuberger PSC and Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson JJSC) heard the case of R v GH (Respondent) [2015] UKSC 24 (22 April 2015) on appeal from a judgment of the Court of Appeal (Lloyd Jones LJ, Irwin and Green JJ) reported at [2013] EWCA Crim 2237. Unanimously allowing the appeal of the Director of Public Prosecutions (DPP), giving the only judgment Lord Toulson held at para 47 that the “character of the money did change on being paid into the respondent’s accounts.” This case involved fraud. It had been perpetrated through the Internet via four “ghost” websites falsely pretending to offer cut-price motor insurance. To execute his plans, B used associates who opened bank accounts for transmitting the proceeds generated by the scam and H was an associate of this nature. The Supreme Court held that section 328 of the Proceeds of Crime Act 2002 (POCA) does not require property to constitute criminal property before an arrangement came into operation because such a construction is likely have serious potential consequences in relation to banks and other financial institutions.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"282 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116082728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Purpose - – This article aims to review popular frameworks used to examine fraud and earmarks three areas where there is considerable scope for academic research to guide and inform important debates within organisations and regulatory bodies. Design/methodology/approach - – The article reviews published fraud research in the fields of auditing and forensic accounting, focusing on the development of the dominant framework in accounting and fraud examination, the fraud triangle. From this review, specific avenues for future research are identified. Findings - – Three under-researched issues are identified: rationalisation of fraudulent behaviours by offenders; the nature of collusion in fraud; and regulatory attempts to promote whistle-blowing. These topics highlight the perspective of those directly involved in fraud and draw together issues that have interested researchers in other disciplines for decades with matters that are at the heart of contemporary financial management across the globe. Originality/value - – In spite of the profound economic and reputational impact of fraud, the research in accounting remains fragmented and emergent. This review identifies avenues offering scope to bridge the divide between academia and practice.
{"title":"Looking Through the Fraud Triangle: A Review and Call for New Directions","authors":"Clinton Free","doi":"10.2139/ssrn.2590952","DOIUrl":"https://doi.org/10.2139/ssrn.2590952","url":null,"abstract":"Purpose - – This article aims to review popular frameworks used to examine fraud and earmarks three areas where there is considerable scope for academic research to guide and inform important debates within organisations and regulatory bodies. Design/methodology/approach - – The article reviews published fraud research in the fields of auditing and forensic accounting, focusing on the development of the dominant framework in accounting and fraud examination, the fraud triangle. From this review, specific avenues for future research are identified. Findings - – Three under-researched issues are identified: rationalisation of fraudulent behaviours by offenders; the nature of collusion in fraud; and regulatory attempts to promote whistle-blowing. These topics highlight the perspective of those directly involved in fraud and draw together issues that have interested researchers in other disciplines for decades with matters that are at the heart of contemporary financial management across the globe. Originality/value - – In spite of the profound economic and reputational impact of fraud, the research in accounting remains fragmented and emergent. This review identifies avenues offering scope to bridge the divide between academia and practice.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134433586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo.This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not — that preventing purchased political influence, whether generalized or particularized, is central to the federal anti-corruption enterprise. The matter is presented both on a theoretical level, and through examination of Supreme Court cases in what might be called the field of “ordinary corruption.” This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a “stream of benefits” as a means of securing somewhat generalized influence with public officials. The lower courts have thus reached results that further broad anti-corruption goals while ignoring intimations of a narrow view in the campaign finance cases. To the extent that the Supreme Court may extend this narrow view to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.
{"title":"Applying Citizens United to Ordinary Corruption: With a Note on Blagojevich, McDonnell, and the Criminalization of Politics","authors":"George D. Brown","doi":"10.2139/ssrn.2584075","DOIUrl":"https://doi.org/10.2139/ssrn.2584075","url":null,"abstract":"Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo.This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not — that preventing purchased political influence, whether generalized or particularized, is central to the federal anti-corruption enterprise. The matter is presented both on a theoretical level, and through examination of Supreme Court cases in what might be called the field of “ordinary corruption.” This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a “stream of benefits” as a means of securing somewhat generalized influence with public officials. The lower courts have thus reached results that further broad anti-corruption goals while ignoring intimations of a narrow view in the campaign finance cases. To the extent that the Supreme Court may extend this narrow view to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114168401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted conspirators, excluding only those convicted of “planning and initiating” the underlying action. In contrast, the whistleblower program of the Securities and Exchange Commission (“SEC”) under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), which was modeled after the IRS program, precludes rewards for any whistleblower convicted of a criminal violation that is “related to” a securities enforcement proceeding. Therefore, because of his conviction, Birkenfeld would not have been granted a bounty under Dodd-Frank had he blown the whistle on a violation of the federal securities laws, rather than tax evasion. This Article will explore an area that has been void of much scholarly attention — the rationale behind providing bounties to whistleblowers who have unclean hands and the differences between federal whisteblower programs in this regard. After analyzing the history and structure of the IRS and SEC programs and the public policy concerns associated with rewarding culpable whistleblowers, this Article will conclude with various observations justifying and supporting the SEC model. This Article will critique the IRS’s practice of including the criminally convicted among those who are eligible for bounty awards by suggesting that the existence of alternative whistleblower incentive structures, such as leniency and immunity, are more appropriate for a potential whistleblower facing a criminal conviction. In addition, the IRS model diverges from the legal structure upon which it is based, the False Claims Act, which does not allow convicted whistleblowers to receive a bounty. In response to potential counterarguments that tax fraud reporting may not be analogous to securities fraud reporting, this Article will also explore the SEC’s recent trend of acting increasingly as a “punisher” akin to a criminal, rather than a civil, enforcement entity like the IRS. In conclusion, this Article will suggest that the SEC’s approach represents a reasonable middle ground that reconciles the conflict between allowing wrongdoers to benefit from their own misconduct and incentivizing culpable insiders to come forward, as such persons often possess the most crucial information in bringing violations of the law to light.
2012年，布拉德利·比肯菲尔德(Bradley Birkenfeld)从美国国税局(IRS)获得了1.04亿美元的奖励或“赏金”，因为他揭发了他的雇主瑞银集团(UBS)。瑞银通过帮助数千名美国纳税人将资产隐藏在瑞士，为一项重大的离岸税务欺诈计划提供了便利。比肯菲尔德不符合公众对举报人的普遍看法。他本人也是这一罪行的同谋，甚至因此入狱服刑。尽管他被定罪，但根据美国国税局的举报人计划，比肯菲尔德仍然有资格获得可观的举报人赏金，该计划允许对被定罪的共谋者进行奖励，但只包括那些被判“策划和发起”潜在行动的人。相比之下，美国证券交易委员会(SEC)在《多德-弗兰克华尔街改革与消费者保护法》(Dodd-Frank Wall Street Reform and Consumer Protection Act，简称“多德-弗兰克”)下的举报人计划是仿照美国国税局的计划制定的，该计划禁止对任何被判犯有与证券执法程序“相关”的刑事违法行为的举报人给予奖励。因此，由于他的定罪，如果比肯菲尔德举报的是违反联邦证券法的行为，而不是逃税，他就不会在多德-弗兰克法案下获得赏金。本文将探讨一个缺乏学术关注的领域——向手不干净的举报人提供赏金的理由，以及在这方面联邦举报人计划之间的差异。在分析了美国国税局和美国证券交易委员会计划的历史和结构以及与奖励有罪举报人相关的公共政策问题之后，本文将以各种观察结果来证明和支持美国证券交易委员会模型。本文将批评美国国税局将刑事定罪者纳入有资格获得赏金的人的做法，建议存在其他的举报人激励结构，如宽大处理和豁免，更适合面临刑事定罪的潜在举报人。此外，国税局的模式偏离了其所依据的法律结构——《虚假申报法》(False Claims Act)，后者不允许被定罪的举报人获得赏金。为了回应潜在的反驳意见，即税务欺诈报告可能与证券欺诈报告不同，本文还将探讨美国证券交易委员会最近越来越多地充当类似于罪犯的“惩罚者”，而不是像美国国税局这样的民事执法实体。总之，本文将表明，美国证券交易委员会的方法代表了一个合理的中间立场，它调和了允许不法行为者从自己的不当行为中受益与激励有罪的内部人员挺身而出之间的冲突，因为这些人通常拥有揭发违法行为的最关键信息。
{"title":"Bounties for Bad Behavior: Rewarding Culpable Whistleblowers under the Dodd-Frank Act and Internal Revenue Code","authors":"Jennifer M. Pacella","doi":"10.2139/SSRN.2394687","DOIUrl":"https://doi.org/10.2139/SSRN.2394687","url":null,"abstract":"In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted conspirators, excluding only those convicted of “planning and initiating” the underlying action. In contrast, the whistleblower program of the Securities and Exchange Commission (“SEC”) under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), which was modeled after the IRS program, precludes rewards for any whistleblower convicted of a criminal violation that is “related to” a securities enforcement proceeding. Therefore, because of his conviction, Birkenfeld would not have been granted a bounty under Dodd-Frank had he blown the whistle on a violation of the federal securities laws, rather than tax evasion. This Article will explore an area that has been void of much scholarly attention — the rationale behind providing bounties to whistleblowers who have unclean hands and the differences between federal whisteblower programs in this regard. After analyzing the history and structure of the IRS and SEC programs and the public policy concerns associated with rewarding culpable whistleblowers, this Article will conclude with various observations justifying and supporting the SEC model. This Article will critique the IRS’s practice of including the criminally convicted among those who are eligible for bounty awards by suggesting that the existence of alternative whistleblower incentive structures, such as leniency and immunity, are more appropriate for a potential whistleblower facing a criminal conviction. In addition, the IRS model diverges from the legal structure upon which it is based, the False Claims Act, which does not allow convicted whistleblowers to receive a bounty. In response to potential counterarguments that tax fraud reporting may not be analogous to securities fraud reporting, this Article will also explore the SEC’s recent trend of acting increasingly as a “punisher” akin to a criminal, rather than a civil, enforcement entity like the IRS. In conclusion, this Article will suggest that the SEC’s approach represents a reasonable middle ground that reconciles the conflict between allowing wrongdoers to benefit from their own misconduct and incentivizing culpable insiders to come forward, as such persons often possess the most crucial information in bringing violations of the law to light.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129596445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Various agencies have acknowledged that they would take voluntary disclosure of FCPA misconduct into account in assessing the fine of a transgressing company. However, several scholars questioned whether companies would actually receive that benefit. Previous research set out to answer this question with the use of statistical analysis and found that voluntarily disclosing companies actually face stiffer penalties. While statistical analysis has not traditionally been used in the legal field, it can be a very powerful and beneficial tool. However, this tool must be utilized responsibly. The current study critiques the methods of previous research and finds several flaws which impact findings.
{"title":"Embracing Fragility in Our Data: A Cautionary Example from Research on the FCPA and Voluntary Disclosure","authors":"Peter Leasure","doi":"10.2139/SSRN.2733788","DOIUrl":"https://doi.org/10.2139/SSRN.2733788","url":null,"abstract":"Various agencies have acknowledged that they would take voluntary disclosure of FCPA misconduct into account in assessing the fine of a transgressing company. However, several scholars questioned whether companies would actually receive that benefit. Previous research set out to answer this question with the use of statistical analysis and found that voluntarily disclosing companies actually face stiffer penalties. While statistical analysis has not traditionally been used in the legal field, it can be a very powerful and beneficial tool. However, this tool must be utilized responsibly. The current study critiques the methods of previous research and finds several flaws which impact findings.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126338945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the last years, the design of supervision against money laundering has become increasingly essential in agendas of governments through the creation of specialized agencies: the Financial Intelligence Units (FIUs). The economics of Anti Money Laundering (AML) suggested that the Financial model of FIU (FFIU), which is the regime adopted for example in the US, should be the best choice. Nevertheless, although nowadays the FFIU is still the most common framework, an empirical analysis of the FIUs establishment shows a more nuaced reality; it is discovered that, after the 2001 terrorist attack, the adoption of FFIU is unlikely. September Eleven seems to be the key event in the more recent design of the supervisory architecture against money laundering, signalling that politicians seem to prefer the Law Enforcement model of FIU (LEFIU). Using a political economy model two possible and non-alternative explanations are offered. On the one hand, in order to counteract the terrorist threat, politicians could have preferred the comparative advantages of the LEFIU model in term of police and investigation powers rather than the information gains supplied by the FFIU model. On the other hand, politicians could have used the September Eleven event just as an occasion to avoid the establishment of a FFIU model with its higher risks of having banking capture and/or an over-powerful financial agency.
{"title":"Economics and Politics in Designing Supervision: The Case of the FIUs Against Money Laundering","authors":"D. Masciandaro, Alessio Volpicella","doi":"10.2139/ssrn.2469121","DOIUrl":"https://doi.org/10.2139/ssrn.2469121","url":null,"abstract":"In the last years, the design of supervision against money laundering has become increasingly essential in agendas of governments through the creation of specialized agencies: the Financial Intelligence Units (FIUs). The economics of Anti Money Laundering (AML) suggested that the Financial model of FIU (FFIU), which is the regime adopted for example in the US, should be the best choice. Nevertheless, although nowadays the FFIU is still the most common framework, an empirical analysis of the FIUs establishment shows a more nuaced reality; it is discovered that, after the 2001 terrorist attack, the adoption of FFIU is unlikely. September Eleven seems to be the key event in the more recent design of the supervisory architecture against money laundering, signalling that politicians seem to prefer the Law Enforcement model of FIU (LEFIU). Using a political economy model two possible and non-alternative explanations are offered. On the one hand, in order to counteract the terrorist threat, politicians could have preferred the comparative advantages of the LEFIU model in term of police and investigation powers rather than the information gains supplied by the FFIU model. On the other hand, politicians could have used the September Eleven event just as an occasion to avoid the establishment of a FFIU model with its higher risks of having banking capture and/or an over-powerful financial agency.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134060017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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