How Criminal Cases Affect Bankruptcy: Debunking The Myths

Law360, New York (June 2, 2016, 12:49 PM EDT) -- Bankruptcy cases have long been complicated by criminal allegations of malfeasance as either against former executive managers or as against the debtor itself. So, this phenomenon is not new. However, the increased intensity of white collar prosecutions by state and federal law enforcement officials, especially over the past several years, has made the intersection between corporate bankruptcy cases and the criminal law more complicated. Criminal cases alleging fraud against corporate managers have more recently implicated relatively more complex statutes, including the Foreign Corrupt Practices Act, and managers now stand to be accused of longer lists of criminal wrongdoing in single cases. Cases that might have previously primarily included only embezzlement (grand larceny), for example, now allege violations of federal securities laws, FCPA violations, tax fraud, mail and wire fraud and might also include criminal Racketeer Influenced and Corrupt Organizations (RICO) Act claims. Moreover, while the number of corporate bankruptcies has not materially increased, fraud cases resulting in a final adjudication, either a plea or conviction at trial, have practically exploded. In 2011, such cases represented approximately 19 percent (or 307) of all criminal sentences in the Southern District of New York. By 2013, such cases accounted for over 23 percent (or 360) and in 2014 approximately 22 percent of such cases (or 376).[1] In other words, more fraud is being prosecuted, and successfully....

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