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To Disclose or Not to Disclose
Recent corporate accounting scandals have brought to light disturbing revelations concerning the business practices of many American companies. New ' and more severe ' penalties for corporate fraud in the Sarbanes-Oxley Act of 2002 have caused companies to step up their internal efforts to detect and prevent wrongdoing.
Companies discovering possible unlawful activity frequently hire outside counsel to perform an internal investigation. The attorneys and their agents, such as accountants, interview key personnel and review business records. Investigators typically generate interview memoranda, chronologies, legal analyses, and summary reports. These investigative documents are shielded from disclosure to third parties by the attorney-client privilege and work product doctrines. See e.g., Better Government Bureau v. McGraw, 106 F.3d 582 (4th Cir. 1997). But see In re Grand Jury Subpoena Dated May 9, 2001, 179 F. Supp. 2d 270 (S.D.N.Y. 2001) (business advice and lobbying not protected).
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.