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Government Enforcement Exposed - "The GEE"
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29 May 2015 THE BENEFITS OF COOPERATION – HYPERDYNAMICS AVOIDS INDICTMENT

On May 21, 2015, the Department of Justice (DOJ) announced that it has closed its investigation involving Hyperdynamics Corporation regarding possible violations of the Foreign Corrupt Practices Act (FCPA). In doing so, Patrick Stokes, Deputy Chief of DOJ’s Fraud Section noted that “the Department values cooperation with investigations such as shown here.”   In September of 2013, Hyperdynamics received a subpoena from the DOJ seeking company records pertaining to its operations in Guinea, West Africa. The Guinean operations involved obtaining and retaining oil and gas concession rights off the coast of Guinea. The DOJ also inquired about Hyperdynamics’ relationship with various charitable organizations.   Hyperdynamics cooperated with the government during the investigation, conducted its own internal investigation into issues raised by investigators and provided information…

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28 May 2015 RENEWED GOVERNMENT INTERFERENCE IN ATTORNEY FEE ARRANGEMENTS?

For decades, employees who were not in a position to be covered by Director’s & Officer’s insurance have relied upon employment agreements or the simple generosity of their employer to pay legal fees associated with government investigations and prosecutions. Moreover, in an age where the Department of Justice’s jurisdictional reach seems to be growing by the minute, companies facing long-lasting and wide-reaching government investigations many times rely upon one single law firm to represent multiple employees who may be interviewed by the government or serve as a grand jury witness. The benefits to the company are obvious and numerous – the company does not have to pay an additional set of lawyers to familiarize themselves with the facts of the investigation and it is able…

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26 May 2015 THE SEC EXPLAINS ITS RATIONALE IN FORUM SELECTION IN CONTESTED CASES PART II – THE SEC’S GUIDANCE AND FURTHER QUESTIONS

Our post last week explained the background behind the growing concern regarding the potential home-court advantage the SEC may have in contested matters it litigates as in-house administrative proceedings rather than in federal district court. Since “in recent years an increasing percentage of enforcement actions have been filed as contested matters, as opposed to being fully settled at the outset,” and those figures are “expected to continue to grow,” as Chair Mary Jo White testified recently to Congress, the SEC’s choice of forum takes on increasing significance.   Against this backdrop, earlier this month, the SEC’s Enforcement Division issued a memorandum describing the factors the agency considers when deciding the proper forum in which to bring a contested action. The Commission began by saying it…

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22 May 2015 THE SEC EXPLAINS ITS RATIONALE IN FORUM SELECTION IN CONTESTED CASES Part I - Complaints About SEC's Forum Selection

  Earlier this month, after substantial criticism from defendants, practitioners, and even a federal judge, the SEC’s Enforcement Division issued its first formal guidance explaining how it determines whether to bring an enforcement action in federal district court before the SEC’s own administrative law judges. The Enforcement Division’s “guidance” makes clear that it leaves itself with substantial discretion to decide the appropriate forum in which to bring a contested case. Just as interesting, however, is what the SEC does not say factors into that decision. This post discusses some of the issues surrounding the SEC’s forum selection issues. Part II will address the agency’s just-published guidance to address those concerns.   By way of background, the SEC has long had the ability to choose the venue…

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05 May 2015 Extradition from Japan: The Gamble

It is no secret amongst criminal antitrust practitioners that the U.S. Department of Justice (DOJ) has had difficulty extraditing foreign nationals indicted for Sherman Act violations.  Indeed, the extradition process is complex and uncertain given the multitude of hurdles the DOJ faces when attempting to extradite a citizen of a sovereign country.   Japanese nationals are no exception. The reality is that Japanese law and extradition proceedings afford the Japanese government a huge amount of discretion as to whether or not to comply with an extradition request made by the United States government.  Interestingly, despite the nearly insurmountable challenges faced by the DOJ in extradition proceedings, a surprising number of Japanese executives and employees have acquiesced to the U.S. justice system, the result of which…

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