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D&O Coverage for Corporate Criminal Investigations
Surprisingly few reported decisions discuss whether criminal investigations of corporate wrongdoing are covered under directors' and officers' liability (“D&O“) insurance policies. This is amazing because the past decade has been marked by waves of corporate scandals, and federal and state prosecutors and regulators will likely continue to launch broad investigations of corporate conduct in the decade to come. Meanwhile, the costs and risks of defending against these investigations are growing.
A criminal indictment can spell disaster, if not death, for a corporation. The most infamous example of this was Arthur Andersen LLP's indictment and conviction in 2002 for obstructing justice ' a conviction that was overturned by the Supreme Court three years after the accounting giant collapsed. Arthur Andersen LLP v. United States, 544 U.S. 696, 708 (2005). Despite the perceived or actual pro-corporate bent of the Bush Administration, federal prosecutors have resorted to aggressive enforcement tactics, prompting corporations anxious to avoid Arthur Andersen's fate to engage in unprecedented cooperation with the government. For example, federal prosecutors have successfully pressured corporations to refuse indemnification to corporate officers, to refrain from entering into joint defense agreements with their employees or others under investigation, and to waive the benefits of the corporation's attorney-client privilege.
On Nov. 13, 2007, the House of Representatives passed the Attorney-Client Privilege Protection Act (H.R. 3013) which, if enacted, would prohibit these aggressive tactics. Last year, federal judge Lewis A. Kaplan of the Southern District of New York dismissed an indictment against 13 former partners and employees of the accounting firm KPMG, LLP, because the prosecutors had induced KPMG to place onerous conditions on the indemnification of legal expenses for employees and eventually to stop indemnifying them altogether. United States v. Stein, 495 F. Supp. 2d 390, 393 (S.D.N.Y. 2007). On Aug. 28, 2008, the Second Circuit Court of Appeals affirmed Judge Kaplan's decision, noting that “KPMG faced ruin by indictment” and had no choice but to follow the prosecutors' dictates regarding treatment of the employees, which effectively made KPMG a government agent in depriving the employees of their Sixth Amendment right to counsel. No. 07-3042-cr, 2008 WL 3982104, at *16 (2d Cir. Aug. 28, 2008). On the very same day, the Department of Justice announced new guidelines that instruct prosecutors to avoid the most aggressive tactics when investigating and prosecuting corporate crime. Dept. of Justice, Principles of Federal Prosecution of Business Organizations (2008), available at www.usdoj.gov/opa/documents/corp-charging-guidelines.pdf, on Aug. 30, 2008. The new guidelines appear to be an effort to dissuade the Senate from passing the Attorney-Client Privilege Protection Act.
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.