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Extraterritoriality and Whistleblower Retaliation
Though whistleblower protection statutes take many forms, the frameworks for determining liability are really quite similar. Generally speaking, an employee must first demonstrate that he or she engaged in protected conduct under an act. Next, the employee may be required to prove that the employer actually knew about the employee's protected conduct. Third, the employer must take some sort of adverse personnel action against the employee. Finally, the employee must demonstrate that his or her protected conduct was causally related to the adverse employment action.
In-house counsel for multinational corporations and counsel for foreign plaintiffs often must deal with an even more preliminary issue than any of those cited above. Specifically, can overseas whistleblowers avail themselves of United States whistleblower protection laws? If so, under what circumstances? How can corporations protect themselves against claims of retaliation from company whistleblowers located outside the United States? An answer one way or the other may render meaningless arguments about, for example, whether an employee's conduct should be deemed protected or the appropriate causation standard to be applied. Indeed, understanding the extraterritoriality issues in international whistleblower cases is absolutely critical insofar as it may provide an avenue for defense counsel to seek a dismissal early in litigation.
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.