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Rethinking Corporate Cooperation

By Jim Walden and Farrah Pepper

In the post-Enron world, many public companies have come under intense scrutiny from the government. A diverse chorus of critics argues that the Department of Justice (DOJ) has gone too far, citing the overzealousness of line-level prosecutors, their failure to adhere to the measured tone struck by higher-level officials in their public pronouncements, and their general tendency to treat companies as racketeering organizations.

Aggressive prosecutors need not instill fear in a company or its counsel. Pushback ' politely delivered and judiciously selected ' is appropriate (and often required) during governmental investigations of alleged corporate wrongdoing. Taking an ber-aggressive prosecutor 'up the line' to supervisory personnel is sometimes a necessity, and often well received. Even if the prosecutors do not like it, corporate directors and their counsel are duty bound to prevent the government from running roughshod over the company, even during a criminal investigation. In other words, companies should not feel 'forced' to abide aggressive demands. As time has shown, DOJ's bark is often worse than its bite.

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