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Government Enforcement Exposed - "The GEE"
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06 Sep 2017 Don’t Let DOJ Defections Fool You: Corporate Conduct Still in the Crosshairs

  Authors: Michael Battle, Roscoe Howard and Patrick Miles   The early months of the Trump administration have brought about the resignations of the two most prominent lawyers behind the U.S. Department of Justice’s recent campaign against corporate wrongdoing. The departures of Deputy Attorney General and Acting Attorney General Sally Yates, and DOJ Compliance Counsel Hui Chen, coupled with the administration’s business-friendly rhetoric, might tempt corporate compliance officers to conclude that the DOJ is shifting its emphasis away from corporate prosecutions.   They shouldn’t. In fact, neither those high-profile defections nor the change in administration is likely to alter the mindsets of the working lawyers in the DOJ’s 94 U.S. Attorney offices. Those prosecutors will not only continue pursuing the same types of cases they…

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01 May 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 7

  *This is the eighth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The seventh of these questions addresses receiving cooperation credit in a civil matter.   Question: Does the “all facts” cooperation requirement apply in civil matters as well?   Answer: Yes. If a company wishes to receive cooperation credit in a civil matter, it must disclose the relevant facts regarding the individuals involved in the misconduct.   In two speeches following the issuance of the Yates Memo, Bill Baer, who was an associate attorney general at the time, provided additional guidance on what the DOJ expects in terms of cooperation in civil matters.   First, on June 9, 2016, Baer identified…

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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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31 Mar 2017 DOJ’s Corporate Compliance Program Guidance Provides Succinct Resource for Companies

  The U.S. Department of Justice (DOJ) Criminal Division, Fraud Section recently issued guidance, “Evaluation of Corporate Compliance Programs,” that provides a succinct resource to guide companies in their review and evaluation of their compliance programs. Notably, this is the first formal guidance on corporate compliance issued by the DOJ under the Trump administration and newly appointed Attorney General Jeff Sessions. Much of the guidance can be gleaned from other sources, such as the United States Sentencing Commission’s “Guidelines Manual” or the “United States Attorneys’ Manual,” however the new guidance is a useful collection of topics and sample questions that may be asked during a fraud investigation.   In its introduction, the guidance references the commonly known “Filip Factors” that “describe specific factors that prosecutors…

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31 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 3

  *This is the fourth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The third of these questions concerns what a company is not required to do to earn cooperation credit.   Question: What is the cooperating company not required to do?    Answer: In order to receive cooperation credit, the Department of Justice (DOJ) has placed certain formal limitations on the Yates Memo’s reach. For instance, a company is not required to embark on an endless fishing expedition for information, nor is a company required to waive any attorney-client privilege to receive cooperation credit. At times, however, although there are formal limitations, the department’s limitations create an apparent conflict with its practical application….

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28 Mar 2017 Recently Announced: DOJ Will Extend the FCPA Pilot Program

  Acting Assistant Attorney General Kenneth A. Blanco recently announced that the Department of Justice (DOJ) will extend the Foreign Corrupt Practices Act (FCPA) Pilot Program (the Program) beyond the one-year period ending on April 5, 2017. This announcement was made on March 10 at the American Bar Association’s National Institute on White Collar Crime. However, it is unknown whether this will result in a permanent implementation of the Program. Blanco specifically stated that the DOJ will soon begin evaluating the worth and efficacy of the Program, noting that “the Program will continue in full force until we reach a final decision on those issues.”   The Program began on April 5, 2016, not necessarily as a new policy initiative, but instead as a means…

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21 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 2

  *This is the third in a series of blog posts that examines seven FAQs issued by the DOJ in an effort to clarify certain aspects of its Individual Accountability Policy—as articulated in the “Yates Memo.” The second of these questions concerns what a company is required to do to earn cooperation credit.   Question: What else, in addition to providing the DOJ with all non-privileged relevant information about individuals involved in misconduct, is a company required to do to earn cooperation credit?   Answer: The United States Attorneys’ Manual (“USAM”) identifies several factors that will be considered by the Department of Justice to determine the level of cooperation credit a company will receive. In short, the level of cooperation credit the DOJ will bestow directly correlates with…

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