The Government's Evolving Position on Privilege
January 03, 2006
As recently as 6 months ago, many commentators were proclaiming the demise of the attorney-client privilege and work product protection in the context of corporate internal investigations. It now appears that these predictions were premature. Law enforcement officials are becoming more sensitive to the legitimate reasons for protecting a corporation's ability to assert these privileges. Although, from the viewpoint of business, there's still a long way to go, companies have reason to be hopeful.
'Just Trust Me'
January 03, 2006
Senate Majority Leader Bill Frist (R-TN) has publicly defended himself against allegations of insider trading by insisting that he was not aware of inside information when he sold his stock in Hospital Corporation of America (HCA), the hospital chain founded by his father and brother. He has also stated, numerous times since his election to the Senate, that because his HCA securities were in a "qualified blind trust," he could not even be certain about the extent of his holdings at any given time. Frist's civil and criminal exposure under the securities laws is likely to turn on interpretations of SEC Rule 10b5-1, which addresses trading "on the basis of" material nonpublic information in insider trading cases.
Never the Twain Shall Meet?
January 03, 2006
The June 2005 acquittal of HealthSouth founder and Chief Executive Officer Richard M. Scrushy on all charges in a high-profile federal corporate fraud prosecution was widely considered a surprising setback for the Department of Justice (DOJ). But even before the final acquittals in Scrushy, the trial judge's finding that the government's civil and criminal investigations had "improperly merged" resulted in the suppression of Scrushy's SEC deposition and the dismissal of three perjury charges based upon that testimony. <i>United States v. Scrushy</i>, 366 F. Supp.2d 1134, 1137 (N.D.Ala. 2005). Judge Karon Bowdre's decision provides an opportunity to review the law governing the proper conduct of parallel proceedings, and to ask when co-operation between civil enforcement and prosecutorial authorities contravenes those standards.
Employee Blogging: What Employers Don't Know Could Hurt Them
November 30, 2005
Technology offers employers significant advantages, but it can be a double-edged sword. Technology has created issues that employers have never dealt with before ' and bases for liability employers have never confronted before.
In the Courts
November 28, 2005
Recent rulings of importance to you and your practice.
Multiple Jeopardy
November 28, 2005
A combination of factors has coalesced to spell trouble, or at least unwelcome complications, for federal prosecutors and aspiring cooperators and their counsel in the white-collar criminal arena. The factors include the political ambitions of state attorneys general (AGs), the broad overlap of state and federal financial-fraud crimes, the fully justified emphasis of federal prosecutors on pursuing nationwide financial-fraud offenses, and the persistence of the federal courts in refusing to limit the outmoded "dual sovereignty" doctrine that allows concurrent or consecutive federal and state prosecutions for the same offenses.
Statements During Settlement Negotiations As Evidence in a Criminal Trial
November 28, 2005
Your client, a corporate executive, is being investigated in connection with whether the stock of her employer was artificially inflated. The company is in a "full cooperation mode" with the SEC and the DOJ, and is negotiating the terms of a consent decree. You learn that the company's attorneys have met with DOJ and SEC attorneys and have admitted (as they felt was necessary to maintain credibility) to certain wrongdoing by various corporate employees. Can the company's statements during negotiations be used against your client, or are they protected by Rule 408 Fed. R. Evid.?
