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Being Selective: How Companies May Best Protect Privilege When Cooperating With a Government Investigation
In the past few months, the U.S. Department of Justice (DOJ) has placed a renewed emphasis on corporate accountability. Particularly, it has announced exacting new disclosure requirements for companies to receive cooperation credit in any government investigation. While the DOJ does not require the disclosure of privileged materials for cooperation credit, and will not explicitly ask for a waiver, there is often a tension as to where companies may draw the line.
This article explores a key consideration for companies under government investigation: whether voluntary disclosure of privileged information in an effort to obtain cooperation credit waives the privilege vis-à-vis third parties in subsequent litigation. Given the prevalence of follow-on civil litigation for certain types of investigations, the ability to preserve the privilege under the "selective waiver doctrine" may be of critical importance. This article analyzes various views on the selective waiver doctrine by federal courts in different jurisdictions and offers best practices for cooperating with the government in a manner that best protects the privilege.
DOJ's Increased Emphasis on Corporate Enforcement and Heightened Standards for Cooperation Credit
The DOJ is once again highly focused on pursuing investigations of corporations with an emphasis on individual accountability. Notably, on Oct. 5, 2021, John Carlin, Principal Associate Deputy Attorney General, announced that the DOJ will significantly surge resources for corporate enforcement. Carlin specifically mentioned a new squad of FBI agents that will be designated to work full time within the DOJ's Fraud Section as well as increased enforcement of sanctions and export controls. On Oct. 28, 2021, Deputy Attorney General Lisa Monaco, delivering the keynote address at the ABA annual National Institute on White Collar Crime, stated that the DOJ "will not hesitate to take action when necessary to combat corporate wrongdoing."
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.