Tag Archives: Cleary Gottlieb Steen & Hamilton LLP

U.S. Attorney’s Offices Issue Nationwide Corporate Voluntary Self-Disclosure Policy

by Joon H. Kim, Lev L. Dassin, Jonathan S. Kolodner, Lisa Vicens, Andrés Felipe Sáenz, and Roberta Mayerle

From left to right: Joon H. Kim, Lev L. Dassin, Jonathan S. Kolodner, Lisa Vicens, Andrés Felipe Sáenz, and Roberta Mayerle (Photos courtesy of Cleary Gottlieb Steen & Hamilton)

On February 22, 2023, the Department of Justice announced a new corporate Voluntary Self-Disclosure Policy for U.S. Attorney’s Offices nationwide (the “USAO Policy”).[1]  The USAO Policy sets forth clearer and concrete benefits for companies that voluntarily and timely self-report misconduct as had been directed by the September 15, 2022 memorandum from the Deputy Attorney General for the Department of Justice (“DOJ”) (the “Monaco Memorandum”).[2]  The USAO Policy also follows the significant revisions to the DOJ Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy recently announced on January 17, 2023 (the “Corporate Enforcement Policy”).[3] 

The USAO Policy applies to all U.S. Attorney’s Offices and is effective immediately.  As such, it standardizes what was previously a patchwork of different practices across U.S. Attorney’s Offices and fills a gap where no comprehensive voluntary self-disclosure policy previously existed. 

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Incorporating Data Privacy Considerations into Investigations

by Cleary Gottlieb Steen & Hamilton LLP

Many investigations, particularly those that are cross-border in nature, are likely to present data privacy issues, and managing these issues is frequently a key consideration in an investigation.  By keeping data privacy laws in mind as soon as an investigation starts, an organization will avoid the risk that it has failed to satisfy certain requirements, thereby exposing itself to the possibility of a fine or sanction from a regulator.  Below we walk through chronologically how an organization might incorporate data privacy considerations at each stage of an investigation: Continue reading →

Before You Press Send: Protecting Privilege and Complying With Limitations on Data Dissemination When Responding to an Investigative Request

by Cleary Gottlieb Steen & Hamilton LLP

One critical issue to consider in responding to an investigative request is whether by producing the requested data, the company will be waiving a privilege or violating legal confidentiality obligations, including data privacy restrictions.  To avoid inadvertently waiving protections over the company’s information or violating any legal restrictions on the production, companies should consider whether any of the following are implicated by the information requested by the authority: Continue reading →

Disclosure and Notification Considerations When Managing a Crisis

by Cleary Gottlieb Steen & Hamilton LLP

Effectively dealing with a crisis often requires disclosure to government authorities, shareholders, and other stakeholders, even when many facts remain unknown.  Companies must toe a delicate line when assessing when, to whom, and how much to disclose, especially in the absence of complete information. 

Mandatory Disclosure

One of the first things a company should consider in a crisis is whether disclosure to authorities is mandatory.  Mandatory disclosure obligations vary widely across legal regimes and may be imposed by Congress, government regulators, self-regulatory bodies, or even stock exchanges.  For example, regulated entities may face immediate disclosure obligations to report violations of financial laws to FINRA (Rule 4530) or annual disclosure obligations to report misconduct to the CFTC in the entity’s chief compliance officer report (although earlier disclosure of a crisis may be advisable).  Often the relevant laws, rules, and regulations do not specify what information must be disclosed, injecting substantial discretion into what is otherwise a mandatory obligation. Continue reading →

Assessing Risks and Potential Liability in Responding to a Crisis

by Cleary Gottlieb Steen & Hamilton LLP

A company faced with a crisis needs to act quickly to assess and determine the scope of any potential liability in order to guide its first response and frame the forthcoming investigation.  Issues overlooked in the early phases of an investigation could prove very costly down the road, limiting options or potentially subjecting a company to greater penalties.  Understanding the full scope of potential liability early in an investigation allows a company to develop a plan of action through consideration of how such penalties can potentially be mitigated and whether it is sensible to set aside reserves for potential fines and other expenses associated with an investigation.  The severity of such penalties may also shed light on who needs to be informed, including for example, whether any public disclosures will be necessary. 

In determining the scope of that liability and potential consequences, companies should think broadly about:  (1) civil or criminal enforcement liability, (2) the possibility of private civil litigation, (3) individual employee liability, and (4) collateral consequences flowing from the crisis.  The below is a non-comprehensive list of factors that companies should consider when assessing risks and liability at the outset of a crisis. Continue reading →

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 →