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Recent Fallout from Corporate Cooperation

BY Andrew P. Gaillard
October 28, 2005

Ever since the indictment and demise of Arthur Andersen in 2002, the stakes for businesses under governmental scrutiny could not be higher. The pressure on companies to cooperate and reach agreement with government investigators is no longer simply a matter of “doing the right thing,” but has become a practical necessity for survival. Issues being litigated in two high-profile cases right now — one involving the Enron Task Force's prosecution of Messrs. Lay, Skilling and Causey, and the other involving an investigation by the Connecticut Attorney General's office into corporate governance issues at Mass Mutual — are exposing severe pressure points, and potentially serious breaking points, in the current realm of corporate cooperation.

The Enron Defendants' Motion to Dismiss

In early September, the individual Enron defendants filed a pre-trial motion charging that the Enron Task Force was engaged in serious acts of misconduct by directly and indirectly denying the individual defendants access to fact witnesses. In part, the motion charges that the prosecution has threatened potential government witnesses with possible prosecution should they agree to meet with defense counsel. According to the defense motion, the government maintains a non-public list of more than 100 unindicted co-conspirators, virtually none of whom has been willing to meet with the defense. (The briefing on the motion is ongoing, and the parties have attempted to resolve the issue of witness access via a form letter from the court to potential witnesses.) A wholly separate prong of the motion turns on the “acceptance of responsibility” provisions contained in cooperation and deferred prosecution agreements that the Task Force entered into in 2003 with two financial institutions that did business with Enron.

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