What Jurors Think Of American Corporations ' and What You Can Do About It
June 28, 2006
These are challenging times for those of us who represent and defend corporations in litigation. The recent criminal convictions of Enron's Ken Lay and Jeffrey Skilling only confirm what we have known for quite some time ' jurors are skeptical of, and even hostile toward, corporations and corporate executives. <br>But in order to formulate an effective defense strategy, it is important to understand why jurors hold these attitudes.
Achieving Optimal Evaluation of Business and Commercial Cases
June 28, 2006
Perhaps one of the most important services an attorney can provide to a client is discerning the merits of a case and the likely outcomes during the course of litigation. But what is the best way to go about evaluating a case? And if, as experience has taught, there is no 'best' way to evaluate a case, are there some really good ones that can be counted on to give the client sound advice over a broad range of potential types of cases?
Deferred Prosecution Agreements: What Questions Should We Be Asking?
June 28, 2006
In the post-Enron era, corporate counsel are seeing more government investigations that lead to 'deferred prosecution agreements' (DPAs). In these arrangements, the government formally accuses a company of criminal conduct, but agrees to hold the prosecution in abeyance pending the company's efforts to make amends. These cases include such well-known names as KPMG, Computer Asso-ciates and Bristol Myers Squibb. <br>Why are these settlements suddenly coming onto the scene? In a sense, they are not entirely new.
Internal Investigations: <i>Upjohn</i> Warnings Are No Longer Enough
June 28, 2006
Much has been written recently about the government's continued insistence, in both criminal and SEC enforcement investigations, that corporations waive the attorney-client privilege in order to 'fully cooperate' with the government. This pressure has been augmented by the increasing reluctance of auditors for public companies to sign off on their audits unless they review the client's internal investigatory report ' an act that also may cause waiver of the privilege. See, In re: Subpoena Duces Tecum Served on Willkie Farr & Gallagher, (1997 WL 118369 (SDNY 1997)). What has received less attention is the countervailing pressure for truth and candor toward prospective witnesses, not only by government attorneys in the context of parallel criminal and civil investigations, but also by private attorneys when conducting corporate internal investigations.<br>The increased likelihood in the post Sarbanes-Oxley world that a corporation will waive the privilege and produce the substance of its internal investigation, including its investigative reports, needs to be juxtaposed with the duty to be honest with a corporation's employees when conducting an internal investigation. The relationship of these two duties raises serious doubt that the standard Upjohn warnings ' ie, we represent the company, our conversation is privileged, but the company may 'waive' the privilege in its sole discretion ' is consistent with the reasonable expectations of employees and a lawyer's ethical duty to be honest and candid.
Confidential Client Communications? Maybe Not
June 28, 2006
Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that SOX was needed to deal with 'a general erosion of standards of integrity and ethics in the corporate and financial world ... The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus.' Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers.
Programs Keep Alumni Close to Old Firms
May 31, 2006
As firms strive to differentiate themselves through marketing techniques and stave off mergers through network affiliations, they are gearing up alumni programs to net referrals and maintain positive relationships with former employees.
Making Your Employee Handbook Work For You, Not Against You
May 30, 2006
Is your handbook truly up to date? One of the points in the employment relationship where the employer can best position itself to achieve its business objectives is in the setting of policy ' a process in which the law affords employers broad latitude. A properly drafted policy manual can help foreclose or limit a lawsuit, and a manual that is prepared or updated carelessly can serve as the foundation for a legal claim. Here are several ways to tell at a glance whether your organization has postured itself to best advantage.
Clearing Up Executive Compensation
May 30, 2006
In Part One, the authors summarized the SEC's proposal to revamp the rules governing the disclosure of executive and director compensation. They focused on the proposal's treatment of current compensation. Part Two picks up with a look at outstanding equity interests, covers post-employment and other types of compensation and benefits, and also discusses other effects of the proposal on corporate counsel.
Antitrust Liability For Joint Ventures
May 30, 2006
The term 'joint venture' encompasses a wide range of business combinations, some of which are simply contractual agreements between independent parties, others of which involve the creation of new entities through consolidation, and some of which involve both integration and contractual agreements. Because joint ventures comprise such a diverse array of business structures, they often defy easy characterization for antitrust purposes: Is a venture best viewed as a merger? A price-fixing agreement? Something in between? This characterization problem contributed to significant confusion in the courts over the proper scope of antitrust liability for joint ventures. <br>At one time, courts routinely declared unlawful a variety of joint ventures, many of which were plainly pro-competitive. The Supreme Court's decision in <i>Texaco, Inc. v. Dagher</i>, clarifies the application of the antitrust laws to joint ventures, and narrows the scope of potential liability for these types of business combinations.
Employers Face Uncertainty of Immigration Reform
May 30, 2006
For years, the government has downplayed interior enforcement of our immigration laws. Inspections of I-9 compliance were nearly extinct; illegal workers thrived under a 'catch and release' deportation standard and lenient I-9 standard; and no one seemed to care about the Social Security mismatch problem. All of that is changing.
