Instructor(s): Kenneth Jull

For graduate students, the course number is LAW3017HF.

Note: The Quercus program will be used for this course. Students must self-enrol in Quercus as soon as confirmed in the course in order to obtain course information.

Recent high profile cases in the areas of foreign corruption, insider trading, price fixing, deceptive marketing, fraud and sexual assault in the workplace are examples of financial crimes. This course examines the ways in which criminal, regulatory and administrative law prevent harm in the conduct of commercial affairs. The course also considers the role of corporate compliance systems. There is hard data that the more financially successful companies value leadership, fairness and the interests of their constituencies more highly than the lower-yielding firms. In other words, higher risk control and better governance leads to higher rewards financially.

A core concept of this course is that governance and risk management priorities must be related to a theory of justice formulated from behind a conceptual veil of ignorance where persons do not know their own wealth, position, gender, race or attributes. Curiously, the issue of gender and racial diversity has not been in the forefront of most writing about risk management, compliance, or white collar crime. This course attempts to address that gap by encouraging dialogue and research about the link between compliance and both gender and racial equality issues.

The course is designed to cover both litigation skills in the area of financial crimes and corporate compliance skills with respect to risk, governance and mergers and is divided into seven conceptual parts:

Part I, Risk Management explores the relationship between risk and legislative rules or principles. Matrix analysis is utilized in various forms, based on a mathematical model and including thresholds which protect life and safety. The priorities within this matrix requires a theory of justice developed from behind a veil of ignorance. Gender and racial diversity issues are considered at every level of risk management. Justice as fairness within organizations leads to a positive matrix that will increase profitability.

The causes of non-compliance and financial crimes are analyzed from different risk perspectives including economic, behavioral and biological.

Part II, Models of Governance develops a restorative justice pyramid approach starting with warning letters and administrative monetary penalties, escalating up to regulatory offences and true crimes at the apex. Corporate governance and the best interests of the corporation are linked to this statutory framework. Due diligence is analyzed as a concept that applies across all levels of the pyramid. Models of governance includes corporate liability within criminal, regulatory and administrative regimes. The purpose of criminal liability as contrasted with types of individual liability is studied.

Part III, Types of Financial Crimes and Violations examines specific topic areas including foreign corrupt practices, competition offences and/ or violations (price fixing, bid rigging, misleading and deceptive marketing, abuse of dominance), the general criminal offence of fraud, securities offences (such as insider trading), and the #MeToo movement and harm within a working environment ranging from the criminal offence of sexual assault to sexual harassment in the workplace.

Part IV, Operational compliance and change behavior uses behavioral research to effect change at operational levels. Techniques such as flow charts, codes of conduct and checklists are developed.

Part V, Zone of non-discovery and internal investigations deals with internal investigations in the zone of non-discovery. Organizations must decide whether to self-report to the authorities in this zone. This leads to a discussion of various programmes such as immunity, leniency, and deferred prosecution agreements. The Federal government has announced that it will be implementing a deferred prosecution programme.

Part VI, Rights and Privileges in government Investigations concerns the zone of discovery by authorities. Charter rights may apply in relation to dawn raids, search warrants, privilege claims, and interviewing potential suspects. In the context of administrative monetary penalties, a spectrum of procedural justice is reviewed.

Part VII, Remedies and Sentencing is the last topic which is the mirror side of risk management.

Evaluation
Will be based on: Participation in break out groups in each class and general class discussion following break out groups (10%); Outline for the research paper (1,000 words) on a recent topic covered in the news that is relevant to corporate or financial crimes and corporate compliance. The paper should analyze this topic by relating it to the basic concepts covered in the course and textbook, 2018 Student Edition Profiting from Risk Management and Compliance by Archibald and Jull., due after Reading Week (15%); and Research paper (6,000 words) which builds upon the submitted outline with specific research on the chosen topic due after the course is completed and in accordance with U of T guidelines (75%).

At a Glance

First Term
Credits
3
Hours
2
Perspective course

Enrolment

Maximum
40
37 JD
3 LLM/SJD/MSL/NDEGS/SJD U

Schedule

M: 8:30 - 10:20