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Being Selective: How Companies May Best Protect Privilege When Cooperating With a Government Investigation
In the past few months, the U.S. Department of Justice (DOJ) has placed a renewed emphasis on corporate accountability. Particularly, it has announced exacting new disclosure requirements for companies to receive cooperation credit in any government investigation. While the DOJ does not require the disclosure of privileged materials for cooperation credit, and will not explicitly ask for a waiver, there is often a tension as to where companies may draw the line.
This article explores a key consideration for companies under government investigation: whether voluntary disclosure of privileged information in an effort to obtain cooperation credit waives the privilege vis-à-vis third parties in subsequent litigation. Given the prevalence of follow-on civil litigation for certain types of investigations, the ability to preserve the privilege under the "selective waiver doctrine" may be of critical importance. This article analyzes various views on the selective waiver doctrine by federal courts in different jurisdictions and offers best practices for cooperating with the government in a manner that best protects the privilege.
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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.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
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.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
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.