Backdating cases

The best way to achieve this is to state openly in the document that it is recording an earlier oral agreement made on, and so is with effect from, a particular date and then date it the actual date it was signed.

Therefore, if in doubt it is best to say “no” or to take external legal advice if appropriate.

"This dynamic organization is a prominent force in both judicial and regulatory arenas, promoting economic growth and allowing free enterprise to prosper.

The difficult question for a lawyer to answer is to what extent does he have to enquire into the veracity of his client’s statement that the document “is just recording an earlier agreement”?

Does he need to check to see whether that was actually the case or can he take an ostrich-like position and put his head in the sand and not ask any questions?

What confirmation of the earlier agreement did the client or the company for which the client (and lawyer) works provide?

Is the client a longstanding one who has always acted properly in the past? These are questions he will probably be asked by the judge or regulator if things go wrong and to which he will need convincing answers.Options dating is lawful as long as the three conditions exist: (1) the company's board has authorized the backdating, (2) the backdating has been fully disclosed, and (3) the company has reported the transaction under appropriate tax laws. By examining the recent criminal actions against Broadcom executives as an illustrative anecdote, the paper shows how prosecutorial indiscretion not only tampers with the lives of innocent people at taxpayers' expense, but can also complicate the pursuit of convictions against actual guilty persons. Prosecutors can certainly address problems reflected in the Broadcom prosecutions by exercising greater restraint and respect for the rule of law. Alternatively, is there a way of legally trying to achieve the required objective?If the document is putting in place something which “should have been done” but hasn’t been, usually for tax or similar reasons, then the position is straightforward.If you share my beliefs that our country's ability to compete in the world economy should not be hindered by excessive regulation and unreasonable court decisions, I encourage you to join WLF in defending free enterprise." By Sarah Hody, a summer associate at the law firm Fiore & Levine, PLLC in Arlington, Virginia, and Martin Kwedar, a public interest lawyer in Arlington, Virginia.

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