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In the wake of corporate scandals and high-profile prosecutions, many companies have avoided prosecution or have otherwise negotiated reduced sanctions in recent years by cooperating with prosecutors or regulators and entering into agreements that often include accepting a monitor. The monitor generally continues to investigate and proposes further changes where appropriate, reporting directly to the government at the company's expense.
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Although a corporation obviously cannot be put in prison, saber-rattling by the government concerning a possible indictment is indeed a draconian threat. In January 2007, Sen. Arlen Spector (R-PA) introduced Senate Bill 186, the 'Attorney-Client Privilege Protection Act of 2007' ('S. 186'). If enacted, S. 186 would straightforwardly 'prohibit' U.S. Attorneys from conditioning any <i>civil or criminal</i> charge decision upon, or use in deciding whether an organization is 'cooperating' with the government, 'the provision of counsel to, or contribution to the legal defense fees or expenses of, an employee of that organization.' In July 2007, Rep. Robert C. Scott (D-VA) introduced House Bill 3013 ('H.R. 3013'), a virtually identical bill (and bearing the same name) in the House. Here's why.
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This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect during the last three months, including amendments to Nevada's corporation and unincorporated entity laws. This edition also discusses recent decisions of interest from the courts of Delaware, New York and California.
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Congress enacted the Americans with Disabilities Act ('ADA') as an attempt to provide physically and mentally disabled Americans with a means to combat a long history of discrimination in nearly all areas of civic life. To achieve this goal, Congress divided the Act into five titles, the first of which focuses exclusively on employment discrimination. While the statutory language and regulations seem straightforward, the corresponding legal realities to employers have caused many to come to the realization that 'even the most conscientious employer, without clear guidance as to what the [ADA] statute and implementing regulations require in a given situation, may find itself defending a lawsuit because of business decisions made in good faith, but adversely to an allegedly disabled individual.' 42 Am. Jur. 3d <i>Proof of Facts</i> Sec. 1 (2007).
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Recent rulings across the states.
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Cases of interest to you and your practice.
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The Energy Policy Act of 2005 (EPACT) gave FERC the authority to assess penalties under the Natural Gas Act and Federal Power Act of up to $ 1 million per day per violation. FERC has expanded its Office of Enforcement, called for heightened industry compliance programs and self-disclosure of misconduct, and is newly focused on enforcement rather than on traditional ratemaking. Two years into the EPACT era, FERC has used its newly acquired authority vigorously.
The proposed Attorney-Client Privilege Protection Act of 2007 would prohibit the Justice Department and other federal agencies from: 1) demanding, requesting, or conditioning the treatment of a private party on the disclosure of communications protected by the attorney-client privilege or as attorney work product; and 2) taking into account when making any civil or criminal charging decision as to an organization or a person affiliated with it: a) any valid assertion of the attorney-client privilege or work-product protection; b) payment for attorneys' fees for an employee of the organization; c) a joint-defense or common-interest agreement between the organization and one of its employees; d) the sharing of information between the organization and one of its employees; or e) the organization's failure to take action adverse to an employee who has refused to cooperate with the government.
The KPMG tax shelter case brought to light heavy-handed attempts by federal prosecutors to exert economic coercion on indicted former KMPG partners and deprive them of the counsel of their choice, of resources that would otherwise be available for their defense, and of their Fifth Amendment right against compelled self-incrimination. Judge Lewis A. Kaplan's landmark decisions on motions by various defendants held many of the government's actions unlawful. <i>See United States v. Stein</i>, 488 F Supp. 2d 350 (S.D.N.Y. 2007); 435 F. Supp. 2d 330 (S.D.N.Y. 2006). But what are counsel for corporate employees to do when prosecutors attack their clients' reputation and pocketbook, but there's no judge to complain to?
Professionals are often asked to assist in the wind-down and liquidation of a company by the company's legal counsel. The requesting attorney, who may have a history with the company, knows the company is in trouble and may even expect a bankruptcy filing will come relatively soon. This in-depth article describes how to hire a wind-down specialist and what to expect.
