Indemnification Revisited
August 18, 2003
A recent <i>Wall Street Journal</i> story asked, 'How much does it cost to defend a company and its executives when they are under investigation for accounting fraud?' In the case of Qwest Communications International, Inc., the Denver-based telephone company currently under parallel SEC and Department of Justice investigations, the answer is staggering.
The Perils of Confidentiality Agreements
August 18, 2003
The tidal wave of corporate scandals reminds us that the most popular and perhaps viable response for the corporation under siege remains cooperation with government investigators. Reports of disclosure of internal company investigations and documents have come pouring out of Enron, WorldCom, Global Crossing and many others. When corporations divulge potentially privileged materials to the government, concerns about whether such disclosure results in the waiver of the company's attorney-client privilege and the loss of its work product protection inevitably follow.
Criminal Antitrust Violations: Current Limits
August 18, 2003
The two federal statutes that create criminal liability for antitrust violations are arguably the broadest and most poorly defined of all federal criminal statutes, even recognizing the tortured draftsmanship of the RICO statute and the securities laws' criminal provisions.
In the Courts
August 18, 2003
Analysis of the cases important to you and your practice.
Search Warrant Affidavits: What to Do
August 18, 2003
Federal agents descend upon a manufacturing facility of a publicly traded client that makes parts for Department of Defense contractors. The agents conduct a day-long search and drive away with hundreds of boxes of documents, as well as data downloaded from company computers. You are the company's counsel, and within 2 days you piece together the government's core theories and many of the 'facts' that caused it to conduct the search.
Fifth Circuit <i>En Banc </i> Narrows FCA
August 18, 2003
On April 1, 2003, the Fifth Circuit <i>en banc</i> filed an opinion that might seriously restrict the application of the False Claims Act (FCA) for the Department of Justice. <i>United States v. Southland Management Corp.</i>, 326 F. 3d 669 (5th Cir. 2003) (<i>en banc</i>). The court <i>en banc</i> overturned a controversial decision by a divided panel last year that essentially eliminated the materiality element of the FCA.
An Offer You Can't Refuse?
August 18, 2003
The Department of Justice is drafting defense counsel to fight its latest war: this one on corporate crime. At the beginning of this year, the DOJ effectively imposed an obligation of self-disclosure of crimes on corporations, accelerating a government-wide trend where companies, through their lawyers, are expected not only to obey the law, but also to investigate and enforce it as well.
'Red Flags and Iceberg Tips'
August 18, 2003
Congress and the Department of Justice (DOJ) are driving home an important point: A company's central management is ultimately responsible for any criminal conduct by its business divisions and employees, and must therefore implement policies and procedures to ensure that it promptly discovers and corrects any potential violations.
