Too big to fail,too powerful to jail? On the absence of criminal prosecutions after the 2008 financial meltdown

Various explanations have been offered regarding the causes of the current global economic crisis that was spawned by the collapse of mortgage-based securities in the U.S. that were sold world-wide and that contained "toxic assets" comprised of subprime loans. There is ample evidence that such loans were originated through fraud. Firms recorded huge profits, and executives were awarded large bonuses even though some had led their companies into bankruptcy and plunged both the U.S. and global economies into the greatest recession since the Great Depression. This paper assesses the reasons why there have been no major prosecutions to date, and compares the U.S. government's response to that in the savings and loan crisis. It analyzes the influence of large financial institutions on lawmaking, regulation, and the allocation of enforcement resources, the continued general lack of understanding of financial fraud including control fraud, and problems related to the higher status and power of potential defendants.     

Qui tam actions: best practices for relator's counsel

The False Claims Act empowers the U.S. Government to identify and prosecute fraud. It does so in no small part by engaging qui tam relators who, with their attorneys, are deputized under the Act to help investigate and prosecute these cases. By combining the insight and industry-specific knowledge of the citizenry with the investigative and prosecutorial resources of the government, Congress attempted to facilitate a united front against pervasive fraud and abuse by government contractors, an aggressive effort that has borne fruit, recovering funds and protecting important federal programs. This Article proposes ways in which relators' counsel and government attorneys can work together more effectively in these cases to achieve the goals of the statute.     

The false claims act and the eroding scienter in healthcare fraud litigation

This article addresses the federal government's expansive methods in tackling healthcare fraud, particularly in misapplying the False Claims Act. Although tasked with the obligation to curtail the fraudulent submission of Medicare & Medicaid claims, the U.S. government must rein in the current trend to utilize the False Claims Act against smaller medical providers. As the Act's original focus has ebbed in significance, the government has increasingly applied the False Claims Act to circumstances that do not evince actual fraud. In doing so, federal courts have effectively eroded the statute's critical scienter requirement. The federal common-law doctrines of "payment by mistake" and "unjust enrichment" adequately address the payment of non-fraudulent, albeit false, Medicare & Medicaid claims. Yet the federal government pursues these appropriate remedies only rarely and in the alternative, essentially when the government fails under the False Claims Act. Thus, this article argues for reform, calling for a clearer delineation between remedial and punitive measures. In cases involving smaller medical providers, courts should strictly limit the False Claims Act to those instances where fraud is clearly manifest.     

Corporate compliance and voluntary disclosure

In any event, the decision to institute a corporate compliance program is a relatively simple one. In view of the ambiguity surrounding certain fraud and abuse provisions, and the corporate "death sentence" that may result from program exclusion, a compliance program is always sound corporate policy. To be sure, if the compliance program is administered improperly, it can actually increase the likelihood of whistleblower actions and create a body of potentially hurtful documentation. But these dangers can be minimized by structuring the program to protect the self-evaluative process through relevant privileges. The risks also pale in comparison to the exposure to criminal or exclusionary sanctions when improper conduct goes undetected by an organization.     

Qui tam claims: threat to voluntary compliance programs in health care organizations

The Department of Justice (DOJ) reports that after violent crime, health care fraud is the department's top priority. The number of health care fraud investigations pending at the DOJ increased from 270 cases in 1992 to more than 4,000 in 1997. The DOJ's primary weapon in prosecuting health care fraud is the federal False Claims Act (FCA) of 1863 (31 U.S.C. secs. 3729-3733). Almost unique among federal antifraud provisions, the FCA may also be used by "private prosecutors" to file lawsuits on behalf of the federal government charging organizations with submitting false claims to the government. The FCA rewards such whistle-blowers with a share of any resulting recoveries as a bounty and protects them from discharge for filing false claims lawsuits against their employers. It also requires defendants to pay the costs and attorneys fees of successful claimants. Although the private "bounty hunter" features of the FCA data back to the Civil War, these so-called qui tam claims were nearly dormant until 1986, when Congress amended the FCA to revive their use. Following the 1986 amendments, and paralleling the rapid increase in federal reimbursements for health care costs, private qui tam claims have far expanded beyond their traditional purview of defense contracts into the field of health care. By 1997, health care providers were the targets of 54 percent of the 530 private qui tam lawsuits field that year.     

Regulatory Sloth and Activism in the Effervescence of Financial Crisis

Certain financial market practices, previously denied or disregarded by financial market regulators, are being redefined as candidates for active investigation and enforcement. This article contrasts the passive stance of the U.S. Securities and Exchange Commission vis‐à‐vis the Madoff fraud with its relatively diligent but now settled Complaint against Goldman Sachs. The article also explores compromises in the EU's approach to market regulation of information asymmetry, suggesting that grounds for pessimism outweigh those for hope. The introduction sets the context, describing aspects of the first leg of the crisis (states bail out banks) and the second leg (states themselves come under strain).     

Privacy Act; implementation. Office of Inspector General (OIG), HHS. Final rule

This final rule exempts the new system of records, the Healthcare Integrity and Protection Data Bank (HIPDB), from certain provisions of the Privacy Act (5 U.S.C. 552a). The establishment of the HIPDB is required by section 1128E of the Social Security Act (the Act), as added by section 221(a) of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. Section 1128E of the Act directed the Secretary to establish a national health care fraud and abuse data collection program for the reporting and disclosing of certain final adverse actions taken against health care providers, suppliers or practitioners, and to maintain a data base of final adverse actions taken against health care providers, suppliers and practitioners. Regulations implementing the new HIPDB were published in the Federal Register on October 26, 1999 (64 FR 57740). The exemption being set forth in this rule applies to investigative materials compiled for law enforcement purposes.     

White-collar crime or just risky business? The role of fraud in major financial debacles

This paper considers the role of fraud in three major financial debacles; the savings and loan crisis of the 1980s, the Orange County, California bankruptcy of 1994, and the U.S. corporate and accounting scandals of 2002. Using concepts, theories and data drawn from the criminological literature on white-collar crime, and the law and economics literature on corporate governance, a minimal fraud model is compared to a material fraud model in accounting for the massive financial losses in these three historical cases. The available evidence points to the need for corporate governance models and resulting regulatory policies to explicitly account for the potential for fraud in order to avoid future financial meltdowns.Keynote address presented at the Australian and New Zealand Society of Criminology Conference, October 3, 2003, Sydney, Australia.     

Serious tax fraud and noncompliance

Research Summary This article reviews what international evidence exists on the impact of civil and criminal sanctions upon serious tax noncompliance by individuals. This construct lacks sharp definitional boundaries but includes large tax fraud and large-scale evasion that are not dealt with as fraud. Although substantial research and theory have been developed on general tax evasion and compliance, their conclusions might not apply to large-scale intentional fraudsters. No scientifically defensible studies directly compared civil and criminal sanctions for tax fraud, although one U.S. study reported that significantly enhanced criminal sanctions have more effects than enhanced audit levels. Prosecution is public, whereas administrative penalties are confidential, and this fact encourages those caught to pay heavy penalties to avoid publicity, a criminal record, and imprisonment. Policy Implications Although it has yet to be proven that prosecution has a greater or lesser impact on these offenders, increased prosecution might be justified for purposes of moral retribution as well as perceived social fairness.     

中国企业赴美国上市的法律风险和对策

随着大量中国企业赴美国上市,与之相关的法律风险问题也逐渐暴露。当前,中国企业在美国上市的法律风险主要包括集团诉讼风险、证券违法违规处罚风险、退市风险、做空风险和中介机构欺诈风险。因此,中国企业赴美上市应充分了解、熟悉和掌握美国资本市场的相关法律和监管要求,并完善公司治理结构、内部控制和信息披露制度,以及提高应对集团诉讼的能力。     

对价欺诈交易刑民界限的法教义学分析

对价欺诈交易是指行为人采取虚构事实或者隐瞒真相的方法,通过交付相当代价欺骗他人进行交易的行为。对价欺诈交易侵犯的法益是财产权,商业自治权在厘定对价欺诈交易的民刑界限时可以发挥重要的功能导向性作用。作为刑事犯罪的对价欺诈交易中的“财产损失”,包括客观损失以及交易的物品因不具有商业价值而遭受的损失,但应排除边际损失。对价欺诈交易中“欺诈”的刑事处罚范围,因对价之存在需要从性质、对象以及价值判断上进行限制,同时要加以体系性限缩。对行为人归责,需要考虑被害人是否尽谨慎义务。被害人之谨慎义务应采取折中说。认定刑事诈骗之“非法占有目的”,原则上应采取结果性非法占有目的,特殊情形下可采取行为性非法占有目的。     

Fraud: The Characteristic Crime of the Twenty-First Century

In the same way that larceny characterized much of twentieth century, fraud will likely characterize the twenty-first century. Larceny remains the most common oi all serious crimes, but fraud may overtake larceny as the crime of choice in the future, because of changes in our ownership, storage, and movement of property. Fraud involves purposely obtaining the property of another through deception, and its popularity as a crime of choice is growing. Entrusting property to the custody oi others, storing property at remote locations, and electronic movement of property are shown to be major changes in the way we treat property and increase opportunities for theft. The connection between fraud and many of the serious crimes of the twenty-first century are shown in the facts of recent cases. The motivation of thefl behind many frauds is also shown to be used to fund larger criminal objectives, such as illegal immigration and terrorism. The points of view expressed are those of the author and do not necessarily reflect the position or policies of the U.S. Department of Justice. Dr. Albanese is chief of the International Center at NIJ on leave from his position as professor of Government and Public Affairs at Virginia Commonwealth University.     

New directions in policing fraud: The emergence of the counter fraud specialist in the United Kingdom

Fraud and corruption in the public sector have become issues of increasing importance for the government in the United Kingdom. Numerous initiatives have emerged ranging from high profile publicity campaigns against benefit fraud and tax evasion to the establishment of specialist bodies, such as the NHS Counter Fraud and Security Management Service (NHSCFSMS). One of the most interesting developments, however, has been the emergence of the ‘counter fraud specialist (CFS)’ across central and local government, as well as the private sector. These are specially trained civilian personnel who are tasked to prevent, investigate and secure sanctions against fraudsters. They undertake common training packages and are accredited by the Counter Fraud Professional Accreditation Board (CFPAB). This paper first outlines the emergence of the CFS; then draws upon the results of recent survey data to discuss some of their characteristics. The paper also considers some of the main issues raised by the growth of the CFS including the possible emergence of an embryonic ‘fraud police’, the indirect ‘load shedding’ of fraud investigation and the governance of this new breed of policing personnel.     

诉讼欺诈行为定性之探析

诉讼欺诈行为具有严重的社会危害性,但目前我国现行刑法对于诉讼欺诈行为的处罚力度不够,在司法实践中对同一行为处理结果差别悬殊。这主要是由于我国立法上对于该行为没有统一明确的规定,刑法理论上对该行为的定性问题争论颇大所致。对于诉讼欺诈行为,不宜按诈骗罪定罪处罚。对于诉讼欺诈犯罪过程中所实施的触犯现行刑法的行为,应依法定罪处罚,对于刑法没有规定的部分应按无罪处理。我国刑法应单独设立“诉讼欺诈罪”。     

A variable geometry of enforcement?

This paper locates the control of fraud against the Community budget within the wider context of the tensions engendered by fiscal crises and successive enlargements of the European Union. Funds allocated to the Member States for agriculture, whether in the form of subventions or structural grants, take up more than half of total budget expenditure, so the Common Agricultural Policy has been at the heart of the discussion on budgetary control. Since the 1980s the Common Agricultural Policy has been blamed for the repeated fiscal crises affecting the Community budget, and for frauds and irregularities. In this historical context, the control of fraud has not been static, but has gone through distinct phases, beginning with benign neglect in the 1960s and 70s, followed by transitional and active phases up to and including today's media focus on the Community budget, and the fraud affecting it. The paper analyses the prospects for future enforcement.     

Privacy Act of 1974; report of altered systems--HCFA. Notice of the global addition of three new routine uses to designated HCFA systems of records

HCFA is adding three additional routine uses to the Systems of Records specified in Appendix A. These routine uses will permit HCFA to disclose individual-specific information for the purpose of combating fraud or abuse in the health benefit programs administered by HCFA and for other compatible purposes. These new routine uses will permit HCFA to make disclosures as follows: (1) To a HCFA contractor, including but not necessarily limited to fiscal intermediaries and carriers under title XVIII of the Social Security Act, to administer some aspect of a HCFA-administered health benefits program, or to a grantee of a HCFA-administered grant program, which program is or could be affected by fraud or abuse, for the purpose of preventing, deterring, discovering, detecting, investigating, examining, prosecuting, suing with respect to, defending against, correcting, remedying, or otherwise combating such fraud or abuse in such program; (2) To another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States, including any state or local government agency, for the purpose of preventing, deterring, discovering, detecting, investigating, examining, prosecuting, suing with respect to, defending against, correcting, remedying, or otherwise combating fraud or abuse in a health benefits program funded in whole or in part by Federal funds; and, (3) To any entity that makes payment for or oversees the administration of health care services, for the purpose of preventing, deterring, discovering, detecting, investigating, examining, prosecuting, suing with respect to, defending against, correcting, remedying, or otherwise combating fraud or abuse against such entity or the program or services administered by such entity, subject to certain conditions.     

电信诈骗罪立法问题研究

电信诈骗犯罪的社会危害日益严重.与普通诈骗犯罪相比,电信诈骗犯罪在发生的场域、侵害的法益与构成要件上都有其特殊性,在对现行刑法规定及司法解释存在的不足进行分析的基础上,提出相应的立法完善建议.     

Exporting Gender Injustice: The Impact of the U.S. War on Drugs on Ecuadorian Women

Numerous researchers have documented the gendered impact of the United States’ domestic war against drugs. Women incarcerated for non-violent drug offenses are the fastest growing segment of America’s prison population because of the harsh penalties for using, selling and transporting illegal substances. The impact of U.S. drug policy on women in other countries, in contrast, has been overlooked. This paper argues that the greatly increased imprisonment of women in Ecuador for drug-related offenses is collateral damage of the U.S. war on drugs. The impact of the expansion of women’s imprisonment in Ecuador appears to be particularly damaging to the inmate’s children who frequently join their mother in prison. U.S. policy should not be exported to other countries before having a clear picture of the unintended negative consequences.     

Differentiating identity theft: An exploratory study of victims using a national victimization survey

Despite the widespread attention given to identity theft, there is much confusion on how best to define and measure it. Recent attempts to measure its extent through victimization surveys or law enforcement files have varied considerably in the types of crimes included as identity theft. Some studies include credit card fraud, while others exclude it. This inconsistency in data collection has made it difficult to assess properly the extent of the crime. The current study uses data from the National Public Survey on White Collar Crime to determine the degree to which including credit card fraud as a type of identity theft affects victim profiles encompassing demographic characteristics, risky activities, and reporting decisions. Specifically, we compare victim profiles for victims of existing credit card fraud, new credit card fraud, and existing bank account fraud. Findings from our exploratory study suggest that including existing credit card fraud may obscure the fact that those who are female, black, young, and low income are disproportionately victimized by existing bank account fraud, which is the type of identity theft most financially damaging and most difficult to clear up for individuals.