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Government Enforcement Exposed - "The GEE"
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27 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 6

  *This is the seventh in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions raised by the Yates Memo. The sixth of these questions addresses whether companies should enter into joint defense agreements.   Question: Can a cooperating company enter into a joint defense agreement with individuals’ counsel?   As mentioned in a previous post about the Yates Memo, the Department of Justice (DOJ) has certainly cast a pall on joint defense agreements (JDA) in potential criminal investigations. The DOJ’s guidance seems to indicate that any corporation interested in obtaining cooperation credit in the form of a reduced penalty or a deferred prosecution agreement must carefully consider whether entering into a JDA could stymie the corporation’s ability to…

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25 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 5

  *This is the sixth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions raised by the Yates Memo. The fifth of these questions addresses what happens if a company cannot determine who did what within the organization.   Question: What happens if a company cannot determine who did what within the organization or is prohibited from providing that information to the government?   The simple answer to this question is that the company seeking cooperation credit has the burden of providing a compelling explanation to the DOJ if the corporation is not able to identify all wrongdoers and provide all relevant facts.   By way of background, before the Yates Memo was issued, the government typically would…

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07 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 4 (Part 2)

  What does the DOJ’s response to FAQ No. 4 tell us about cooperation?   This is the second of two posts relating to FAQ No. 4. In a previous post, we addressed the DOJ’s response to FAQ No. 4 regarding voluntary disclosure by a company. This post will address what the DOJ’s response says about a company cooperating, which includes, as we noted in Part 1, only a brief but important reference to cooperation:   “In recognition of the significant value early reporting holds for the government, the Principles [of Federal Prosecution Of Business Organizations] were revised to separate voluntary disclosure from cooperation in order to treat prompt voluntary disclosure as an independent factor to be considered.”   While it may be a rare,…

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04 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 4 (Part 1)

  *This is the fifth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The fourth of these questions concerns when a company should voluntarily disclose misconduct.   Question: When should a company report misconduct?   Let’s investigate what the DOJ’s response tells us about voluntary disclosure:   It is fair to say that the Yates Memo focuses on a company’s cooperation with the DOJ, focusing primarily on a company providing information about culpable individuals. For example, five of the seven FAQs refer to “cooperation” or “cooperating.” Yet, FAQ No. 4 relates to reporting misconduct and does not specifically mention cooperation. Similarly, the DOJ’s response to FAQ No. 4 makes only a brief, but…

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