Creating Private-Sector Standards of Conduct
Whether certain conduct is a crime depends on more than legislatures, judges, and juries. When prosecutors decide whether, whom, and what to charge, the policies underlying their decisions create operative standards of conduct. So, too, do those of agencies administering regulatory programs backed by criminal sanctions. But what about the private sector? Sensible standards of conduct articulated by trade associations can and should play a substantial role in drawing the line between acceptable business practices and bad conduct that can be subject to criminal sanctions.
In the Courts
Analysis of rulings of importance to your practice.
Indemnification Revisited
A recent <i>Wall Street Journal</i> story asked, 'How much does it cost to defend a company and its executives when they are under investigation for accounting fraud?' In the case of Qwest Communications International, Inc., the Denver-based telephone company currently under parallel SEC and Department of Justice investigations, the answer is staggering.
The Perils of Confidentiality Agreements
The tidal wave of corporate scandals reminds us that the most popular and perhaps viable response for the corporation under siege remains cooperation with government investigators. Reports of disclosure of internal company investigations and documents have come pouring out of Enron, WorldCom, Global Crossing and many others. When corporations divulge potentially privileged materials to the government, concerns about whether such disclosure results in the waiver of the company's attorney-client privilege and the loss of its work product protection inevitably follow.
Criminal Antitrust Violations: Current Limits
The two federal statutes that create criminal liability for antitrust violations are arguably the broadest and most poorly defined of all federal criminal statutes, even recognizing the tortured draftsmanship of the RICO statute and the securities laws' criminal provisions.
In the Courts
Analysis of the cases important to you and your practice.
Search Warrant Affidavits: What to Do
Federal agents descend upon a manufacturing facility of a publicly traded client that makes parts for Department of Defense contractors. The agents conduct a day-long search and drive away with hundreds of boxes of documents, as well as data downloaded from company computers. You are the company's counsel, and within 2 days you piece together the government's core theories and many of the 'facts' that caused it to conduct the search.
