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On Wednesday, the US Senate’s Judiciary Committee held an oversight hearing of the U.S. Department of Justice at which Attorney General Michael Mukasey was the witness. In response to questions from Senator Arlen Specter (the sponsor of S. 186, which was reborn recently as I blogged about last week), the Attorney General promised that a letter would be sent that would be sent “within a day or so” that would contain “real, significant” improvements to the process.

When pressed by Senator Specter, the Attorney General allowed that the letter could be the basis for a new Justice Department memorandum that would supercede the McNulty Memo. He said that there are “adjustments” that can – and will – be made. In particular, he noted that cooperation would no longer be measured by waiver. The Attorney General said that the memorandum could be prepared “in short order.” Senator Specter responded “the shorter the order the better.”

It appears that the Justice Department is still dedicated to an incrementalist approach to waiver policy in an effort to forestall Congressional action. Here is a WSJ article on this development. We are posting memos regarding this development in our “Sentencing Guidelines” Practice Area. And thanks to Keith Bishop, who starts a new gig at Allen Matkins on Monday!

The SEC’s Credit Rating Proposals

In this podcast, Joe Hall, Partner of Davis Polk & Wardwell and former Managing Executive for Policy for SEC Chairman William Donaldson, discusses the SEC’s recent credit rating proposals, including:

– What has the SEC proposed to change regarding credit rating agencies?
– What sleepers exist in the proposal that might impact public companies?
– What concerns do you have about the SEC’s proposal?

Activists, Swaps & the SEC: A CSX Update

In this DealLawyers.com podcast, Ron Orol, Senior Writer for The Daily Deal, discusses activists, swaps and the SEC in light of the CSX decision, including:

– Can you explain how activist fund managers are attempting to use cash settled swaps to evade SEC reporting?
– How did The Children’s Investment Fund use swaps with respect to CSX and what was the impact?
– Do you expect the CSX decision to have any effect on the SEC’s rules or interpretations?

By the way, Gibson Dunn recently held a webcast on the CSX decision and has posted this archive.

– Broc Romanek