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A Magistrate Judge of the U.S. District Court for the Southern District of Florida held that an “oral download” of outside counsel’s interview notes to the SEC resulted in a limited waiver of protection under the attorney work-product doctrine over the underlying interview notes and memoranda. The decision is a significant one, and underscores one of the core challenges facing companies seeking to cooperate with the government during the course of its investigations.
In December 2017, a Magistrate Judge of the U.S. District Court for the Southern District of Florida held that an “oral download” of outside counsel’s interview notes to the Securities and Exchange Commission (SEC) resulted in a limited waiver of protection under the attorney work-product doctrine over the underlying interview notes and memoranda. Order on Defendants’ Motion to Compel Production from Non-Party Law Firm, SEC v. Herrera, et al., No. 17- 20301 (S.D. Fl. Dec. 5, 2017). The decision is a significant one, and underscores one of the core challenges facing companies seeking to cooperate with the government during the course of its investigations — namely, the delicate balance between seeking to maximize its potential to receive cooperation credit while avoiding an actual waiver of attorney-client or work-product privileges.
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Federal Public Corruption Prosecutions
By Elkan Abramowitz and Jonathan S. Sack
This article describes pending federal prosecutions, which level corruption charges against high-level officials, considers how the theories of prosecution in these cases might be viewed in light of court decisions in other public corruption cases, and concludes with some observations about the outer limits of federal public corruption prosecutions.
Corporate ESG Integration Not Optional
By Alexandra Poe and Bryan Sillaman
Corporate ESG (environmental, social and governance) integration is becoming less optional every day, driven by increasing regulation, investor demand and the recent embrace of stakeholder capitalism.
Congress Leaves SEC Subject to Litigation Over Disgorgement
By Sarah Aberg and Chris Bosch
Buried in the massive National Defense Authorization Act for Fiscal Year 2021 is §6501, a provision authorizing the SEC to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others.
Criminal Liability of Executives and In-House Attorneys for Corporate Actions
By Joseph G. Poluka and David J. Oberly
Data breaches, while frequent in number and severity, remain big news events today. Even more newsworthy is when a corporate in-house attorney is criminally prosecuted in connection with his role in responding to a data breach event.
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