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Government Enforcement Exposed - "The GEE"
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08 Mar 2016 DOJ Leaves Much Unsaid After Announcing Need for Corporate Certifications to Finalize Settlements

  On Feb. 4, the Department of Justice’s (DOJ) Fraud Section announced it will start requiring companies involved in white-collar crime investigations to “certify” that it has disclosed all information regarding individuals involved in the alleged misconduct. According to the Wall Street Journal, this corporate certification will be required before the DOJ will finalize a settlement agreement with a company. The new certification process is still in the “development” stage, “according to the department, but it could be a written certification.” While the U.S. Attorney Manual already requires companies “identify all individuals involved in the misconduct” and disclose “all facts relating to the misconduct;” it does not require a formal, written certification as a prerequisite to finalize a settlement. See U.S.A.M. § 9-28.700.   The…

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21 Nov 2014 ASSISTANT ATTORNEY GENERAL URGES COMPANIES TO COOPERATE AND CONDUCT THOROUGH INTERNAL INVESTIGATIONS OF FCPA VIOLATIONS

In remarks prepared for the American Conference Institute’s 31st International Conference on the Foreign Corrupt Practices Act on Nov. 19, 2014, Assistant Attorney General Leslie R. Caldwell emphasized the DOJ’s recent successful prosecutions under the FCPA and urged companies to cooperate and conduct thorough internal investigations of FCPA violations.   Caldwell emphasized the DOJ’s aggressive prosecution of individuals and companies, citing more than 50 convictions of individuals since 2009 (25 of those since 2013) and resolution of cases against more than 50 companies with penalties in forfeiture of approximately $3 billion.   While the DOJ is more aggressively developing and prosecuting cases, Caldwell still called on companies to self-disclose and cooperate.  Caldwell emphasized that she meant a full and timely cooperation, saying, “We do not…

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10 Apr 2014 INSURANCE AND WHITE COLLAR DEFENSE; IF YOU DON’T HAVE ONE, YOU MAY NOT BE ABLE TO HAVE THE OTHER

  The BUGA (“Big Ugly Government Agency”) has just metaphorically pounded on the door of your company, howling about civil and criminal charges, mind-blowing fines and penalties, debarment, seizing your first-born and otherwise threatening your existence. So you seek out a phenomenal white collar firm to defend you and yours and lo, they recommend a vigorous internal investigation, leading to the formation of a rock solid defense that, if needs be, can be deployed to defend against BUGA from here to the Supreme Court and back again.   It will, however, cost a lot of money to defend yourself. But, like many a modern company, you have insurance coverage that, you believe, will fund your defense.  Sadly, when you look to your insurance carrier, it…

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20 Mar 2014 D.C. District Court Order Provides a Warning About Attorney-Client Privilege Protection for Internal Investigations

By Anne DePrez |   A decision earlier this month out of the United States District Court for the District of Columbia serves as a warning that the mere involvement of in-house counsel may not be enough to give attorney-client privilege protection to an internal investigation. In United States ex rel. Barko v. Halliburton Co., Cause No. 05-01276 (D.D.C. Mar. 6, 2014), defense contractor Kellogg, Brown and Root, Inc. (“KBR”) was ordered to produce materials from internal investigations conducted pursuant to its Code of Business Conduct (“COBC”). Because those investigations were conducted to comply with “regulatory law and corporate policy,” the court reasoned, the materials are not privileged.   Barko is a qui tam action brought by a former employee of KBR who alleged that…

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