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Conducting an internal investigation into questionable company conduct is universally a stressful experience ' stressful for the organization and its employees, for the witnesses who are questioned, and for the attorneys who structure and carry out the exercise. The organization demands quick answers: What exactly was done, and who did it? Do we need to make a disclosure to regulators or shareholders and if so, when? What is the dollars-and-cents impact on our business?
Employees who have been notified that they need to answer questions from outside counsel are anxious about the impact on their employment status, wonder whether they should retain their own counsel, and are concerned about potential discipline and even civil or criminal liability. And the outside lawyers who have been retained to deliver answers on a compressed timetable are required to master vast amounts of data, review thousands of documents and prepare for and conduct multiple interviews.
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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.
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.
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.
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A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.