Category Archives: Corporate Investigations

Banking Regulators’ Examination Authority Does Not Override Attorney-Client Privilege

by Cleary Gottlieb Steen & Hamilton LLP, Covington & Burling LLP, DavisPolk, Debevoise & Plimpton, Simpson Thacher & Bartlett LLP, Sullivan & Cromwell LLP, and Wilmer Cutler Pickering Hale and Dorr LLP

MEMORANDUM[1]

RE: Bank Regulators’ Legal Authority to Compel the Production of Material That Is Protected by Attorney-Client Privilege

I. Introduction

The attorney-client privilege (the “Privilege”) is deeply enshrined in the common law.[2] In protecting the confidentiality of communications between lawyers and their clients, the Privilege both bars the admission of such communications as evidence in legal proceedings and insulates the communications from compelled disclosure by government authorities. Accordingly, absent an explicit exception, neither courts nor government authorities may require a client or the client’s lawyer to produce or reveal privileged information. Continue reading

English High Court Considers Status of Internal Investigation Interview Notes

by Karolos Seeger, Andrew Lee, and Robin Lööf

In R (AL) v Serious Fraud Office,[1] the English High Court considered the SFO’s obligations to individuals prosecuted following the deferred prosecution agreement (“DPA”) in July 2016 with a company anonymised as “XYZ Ltd”. The Court’s decision is likely to force the SFO to adopt a much more aggressive approach in relation to company counsel’s notes of interviews conducted during a company’s internal investigation. In particular, when those interview notes are potentially relevant to the defences of individuals being prosecuted, this judgment is likely to lead to the SFO putting further pressure on companies to produce the notes, through court proceedings if necessary. We analyse these and other issues covered by the judgment below. Continue reading

Supreme Court Hears Argument to Determine Whether Mandatory Federal Restitution Statute Covers Professional Costs Incurred by Corporate Victims

by Joon H. Kim, Rahul Mukhi, Rusty Feldman, and Samantha Del Duca

On April 18, 2018, the U.S. Supreme Court heard oral argument in Lagos v. United States.[1]  On appeal from the United States Court of Appeals for the Fifth Circuit, Lagos presents the important issue of whether a corporate victim’s professional costs—such as investigatory and legal expenses—incurred as a result of a criminal defendant’s offense conduct must be reimbursed under the Mandatory Victims Restitution Act (“MVRA”).[2] 

The issue has been subject to a recurring circuit split and Lagos now offers the Supreme Court an opportunity to resolve the conflict.[3]  Moreover, as noted by the certiorari petition, the Court’s decision will necessarily have implications “every time corporations engage in internal investigations or audits at the suspicion of wrongdoing.”[4]  Continue reading

Singapore Introduces Deferred Prosecution Agreements

by Zachary S. Brez, Brigham Q. Cannon, Mark Filip, Asheesh Goel, Cori A. Lable, Kim B. Nemirow, Abdus Samad Pardesi, Richard Sharpe, William J. Stuckwisch, Marcus Thompson, Satnam Tumani, and Jodi Wu

On 19 March 2018, Singapore passed legislation introducing the concept of the deferred prosecution agreement (“DPA”) to the jurisdiction for the first time. Under the new laws, corporations (but not individuals) facing prosecution for offences of corruption, money laundering or receipt of stolen property may attempt to negotiate the terms of a DPA with prosecuting authorities, under which they would avoid prosecution, in return for adherence to various conditions imposed upon them, for a set period of time.

By introducing the DPA as an enforcement tool, Singapore joins the ranks of the United States[1], Brazil[2], the United Kingdom[3] and France,[4] which form the vanguard of an increasingly consistent global approach to corporate criminal resolutions. Australia and Canada are also both currently evaluating whether to introduce similar legislation. Continue reading

The Clash of Legal Cultures in the Brave New World of International Law Enforcement

by Peter B. Pope, Nancy C. Jacobson, and Kelly Hagedorn

Defense lawyers all around the world have heard loud and clear that prosecutors and police agencies have announced a new age of international cooperation.  Prosecutors from one country have been posted to the offices of another.  Agents from nations around the world now sit at desks next to each other in central locations like London.  Global resolutions of big cases are being announced by enforcers in multiple jurisdictions.  One of the main subject-matter focuses of these joint cases has been anti-corruption – namely the Foreign Corrupt Practices Act in the United States and the Bribery Act in the United Kingdom. Continue reading

Congress Passes CLOUD Act Governing Cross-Border Law Enforcement Access to Data

by David Bitkower and Natalie Orpett

On March 23, 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act), amending key aspects of U.S. surveillance law and providing a framework for cross-border data access for law enforcement purposes.  The Act addresses two problems that have been the subject of heated debate for the past five years.  First, by amending the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (SCA), the CLOUD Act clarifies that American law enforcement authorities can compel providers of electronic communication services — such as major email service providers and social media networks — to produce data stored outside the United States.  Second, the Act establishes new rules facilitating foreign law enforcement access to data stored inside the United States.  In short, this new legislation impacts any provider that may receive either U.S. or foreign orders to produce data in furtherance of criminal investigations. Continue reading

Recent Decision Finds Waiver Based on “Oral Downloads” to the SEC

by Brad S. Karp, Jessica S. Carey, Andrew J. Ehrlich, Roberto Finzi, Michael E. Gertzman, Michele HirshmanDaniel J. Kramer, Lorin L. Reisner, Richard A. Rosen, Audra J. Soloway, Richard C. Tarlowe, Andrew D. Reich, and Joseph Delich

A federal magistrate judge in the Southern District of Florida recently ruled that a law firm had waived work product protection over notes and memoranda of witness interviews when it provided “oral downloads” of those interviews to the Securities and Exchange Commission (“SEC”).

In a December 5, 2017 opinion, SEC Herrera, No. 17-cv-20301 (S.D. Fla. Dec. 5, 2017), Magistrate Judge Jonathan Goodman indicated that he was “not convinced” that “there is a meaningful distinction between the actual production of a witness interview note or memo and providing the same or similar information orally.”[1]

The opinion serves as an important reminder of the risks of waiver—and the need to take steps to minimize those risks—when disclosing information to a government agency. Continue reading

English Litigation Privilege in Internal Investigations: Not Quite Dead Yet?

by Kelly Hagedorn

Following the decisions in The RBS Rights Issue Litigation[1] and Serious Fraud Office v Eurasian Natural Resources Corporation Limited[2] (“ENRC”), it was thought that the prospect of claiming legal professional privilege in English proceedings over interview memoranda generated during internal investigations was slim (see our client alert on those two cases here).  However, a recent decision of the English High Court in Bilta (UK) Limited and Others v (1) Royal Bank of Scotland Plc (2) Mercuria Energy Europe Trading Limited[3] (“Bilta”) has refused the disclosure of interview memoranda on the basis of litigation privilege, providing a glimmer of hope for corporates who seek to protect such documents from disclosure. Continue reading

The New DOJ FCPA Corporate Enforcement Policy Highlights the Continued Importance of Anti-Corruption Compliance

by Lisa Vicens, Jonathan Kolodner, and Eric Boettcher

In a significant development for companies relating to the Foreign Corrupt Practices Act (FCPA), in late November the U.S. Department of Justice (DOJ) announced a new FCPA Corporate Enforcement Policy (the Enforcement Policy).

The Enforcement Policy[1] is designed to encourage companies to voluntarily disclose misconduct by providing greater transparency concerning the amount of credit the DOJ will give to companies that self-report, fully cooperate and appropriately remediate misconduct. Notably, in announcing the Enforcement Policy, the DOJ highlighted the continued critical role that anti-corruption compliance programs play in its evaluation of eligibility under the Enforcement Policy. Continue reading

Securities Fraud Class Action Suits following Cyber Breaches: The Trickle Before the Wave

by Michael S. Flynn, Avi Gesser, Joseph A. Hall, Edmund Polubinski III, Neal A. Potischman, Brian S. Weinstein, Peter Starr and Jessica L. Turner

Overview

Large-scale data breaches can give rise to a host of legal problems for the breached entity, ranging from consumer class action litigation to congressional inquiries and state attorneys general investigations.  Increasingly, issuers are also facing the specter of federal securities fraud litigation.[1]

The existence of securities fraud litigation following a cyber breach is, to some extent, not surprising.  Lawyer-driven securities litigation often follows stock price declines, even declines that are ostensibly unrelated to any prior public disclosure by an issuer.  Until recently, significant declines in stock price following disclosures of cyber breaches were rare.  But that is changing.  The recent securities fraud class actions brought against Yahoo! and Equifax demonstrate this point; in both of those cases, significant stock price declines followed the disclosure of the breach.  Similar cases can be expected whenever stock price declines follow cyber breach disclosures.  Continue reading