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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.
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.
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.
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.
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.
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.