Are some large firms, financial or otherwise, getting a free pass from prosecution because of their size and scope of operations? How about their responsible officers?  Recent congressional hearings have raised concerns that this may indeed be the case.  Is it ever appropriate for agencies and prosecutors to consider the size of a business when contemplating enforcement actions?  Some would say that the prosecution of the accounting firm Arthur Andersen in 2002 (subsequently overturned by the Supreme Court) put the firm out of business, putting thousands of employees on the unemployment lines and further concentrating the accounting industry.  Others contend that the problem with prosecuting large firms alone justifies limiting the size of firms.  Is it enough for justice and deterrence sake to be able to take enforcement actions against culpable individuals without prosecuting the whole company?

On this previously held conference call, these and other questions are discussed by two people with direct experience with these issues.  As a member of the Securities and Exchange Commission from July 2002 through August 2008, Paul Atkins had to face these questions from the enforcement side.  Former Deputy White House Counsel Timothy Flanigan served as Senior Vice President and Deputy General Counsel for Tyco International after the leadership of the firm was subject to prosecution for alleged significant misdeeds.  Flanigan is credited with a leading role in the efforts to restore the credibility of the firm, allowing it to continue as an ongoing enterprise.

Featuring:

• Hon. Paul S. Atkins, Chief Executive, Patomak Global Partners, and former Commissioner, U.S. Securities & Exchange Commission
• Hon. Timothy E. Flanigan, Partner, McGuireWoods LLP, and former Deputy White House Counsel
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching the Executive Branch Review Project, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide objective resources that identify major government activity, and will provide a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach. The first component of this project is a new blog dedicated to highlighting action or inaction by the executive branch, http://www.executivebranchproject.com/.

To kickoff this new endeavor, U.S. Senator Michael S. Lee (Utah) and Federalist Society founder and Vice Chairman David M. McIntosh discussed the project and provided their perspectives on the use of executive power.

Featuring:

• Hon. Michael S. Lee, United States Senate, Utah
• Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice Chairman, The Federalist Society
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the President's 2012 recess appointments to the National Labor Relations Board were unconstitutional, which means the Board lacks a quorum to conduct business.  The President made these appointments during an intra-session recess shorter than three days, a move no previous President had tried. But the court's reasoning in Noel Canning extended beyond these unusual circumstances. Taking an orginalist approach to the Recess Appointments Clause, the court held that the President cannot make recess appointments during intra-session recesses at all, but only during the recess that occurs between the end of one session of Congress and the beginning of the next. The court held further that the President cannot fill a vacancy with a recess appointment unless the vacancy arises during that same recess. This reasoning calls into question the validity of virtually every recess appointment in modern history. The government has not yet decided whether to appeal the D.C. Circuit's decision, and the NLRB has stated that it will continue to conduct business as usual. Meanwhile, the Noel Canning decision is being invoked to challenge NLRB decisions in dozens of other cases around the country. On this previously recorded conference call held in February, the speakers discuss the Noel Canning case itself, whether the Board can continue to function without Supreme Court resolution of the validity of the recess appointments, and what the decision means for current and past recess appointments to other agencies.

Featuring:

• John P. Elwood, Partner, Vinson & Elkins LLP
• Hon. Howard M. Radzely, Boeing, Inc.
• Moderator: Mrs. Rachel L. Brand, Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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Why did the financial scandals really happen? Why are they continuing to happen? In The Death of Corporate Reputation, Yale's Jonathan Macey reveals the real, non-intuitive reason, and offers a new path forward. For over a century law firms, investment banks, accounting firms, credit rating agencies and companies seeking regular access to U.S. capital markets made large investments in their reputations. They treated customers well and sometimes endured losses in transactions or business deals in order to sustain and nurture their reputations as faithful brokers and “gate-keepers.” This has changed completely. The existing business model among leading participants in today’s capital markets no longer treats customers as valued clients whose trust must be earned and nurtured, but as one-off “counter-parties” to whom no duties are owed and no loyalty is required. The rough and tumble norms of the market-place have replaced the long-standing reputational model in U.S. finance. This podcast is a recording of a previously held conference call and has not been edited for sound quality.

Featuring:

• Prof. Jonathan R. Macey, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale Law School
• Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society

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