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In the Courts
D.C. Circuit Rules on Attorney-Client Privilege Protections for Corporate Internal Investigations
On June 27, 2014, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “Circuit”) vacated the order of the U.S. District Court for the District of Columbia (“District Court”) that directed Kellogg Brown & Root, Inc. (“KBR”) to turn over internal investigation materials and granted KBR's petition for a writ of mandamus. In stating that “the District Court's decision is irreconcilable with Upjohn,” the court concluded that “[so] long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.” In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 WL 2895939, at *1, 4 (D.C. Cir. June 27, 2014). In dissecting and disagreeing with the trial court's reasoning, the D.C. Circuit cited an amicus brief “joined by numerous business and trade associations,” and pointed out that “the District Court's novel approach has the potential to 'work a sea change' in the well-settled rules governing internal corporate investigations.'” Id. at * 8, 7.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.