Corporate Internal Investigations

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Dan K. Webb , Robert W. Tarun, Steven F. Molo

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Suspected wrongdoing can arise in many areas: environmental law, insider trading, tax law and accounting, to name a few.

Corporate Internal Investigations will help you act quickly to address allegations of corporate misconduct and avoid indictment and civil exposure. It provides detailed analysis of the legal and practical issues inherent in internal investigations, including: corporate and individual criminal liability; duties of officers and directors; conducting witness interviews; reviewing and tracking documents; grand jury and other government methods of gathering evidence; supervising experts and investigators; parallel proceedings; the attorney-client privilege and the work product doctrine; reports of investigation and their confidentiality; international investigations; and persuading prosecutors not to indict.

Corporate Internal Investigations keeps you current on developments under the Justice Department's revised “Dual and Successive Prosecution Policy” and “Leniency Policy for Individuals,” and introduces the Department's policy for “Federal Prosecution of Corporations,” including factors to weigh in charging a corporation. It also contains developments on using the Internet to conduct internal investigations and defend clients under criminal investigation.

Book #00620; looseleaf, one volume, 1,542 pages; published in 1993, updated as needed.
ISBN: 978-1-58852-059-3

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1542
  • ISBN: 978-1-58852-059-3
  • Pub#/SKU#: 00620
  • Volume(s): 1

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  • Dan K. Webb
Mr. Webb is a partner in the law firm of Winston & Strawn where he concentrates in major commercial and corporate litigation and white collar criminal defense. Mr. Webb is the Chairman of the Firm's Litigation Department and serves on the Firm's Executive Committee. He served as the United States Attorney for the Northern District of Illinois from 1981 to 1985. Mr. Webb previously served as an Assistant U.S. Attorney for the Northern District of Illinois from 1970 to 1973 and served as the Chief of the Special Prosecutions Division in that office from 1973 to 1975. In 1990 he was appointed Assistant Independent Counsel and acted as Chief Trial Counsel in the Iran/Contra trial of former National Security Adviser John Poindexter. A member of the Illinois Bar since 1970, Mr. Webb is a Fellow of the American College of Trial Lawyers and a Fellow of the International Academy of Trial Lawyers. He is a graduate of Loyola University (Chicago) School of Law (J.D.).

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  • Robert W. Tarun
Mr. Tarun is a partner in the Chicago and San Francisco offices of the law firm of Baker & McKenzie, where he concentrates in major commercial and corporate litigation, internal investigations, white collar criminal defense, and corporate compliance. Mr. Tarun previously served as an Assistant U.S. Attorney for the Northern District of Illinois (1976-1979), as a Deputy Chief of the Criminal Receiving and Appellate Division (1979-1982) and as the Executive Assistant U.S. Attorney (1982-1985) of that office. In 2012 he was appointed the first corporate antitrust monitor in U.S. history. A member of the Illinois and California Bars since 1974 and 1975 respectively, Mr. Tarun is a Fellow of the American College of Trial Lawyers, former chair of its Federal Criminal Procedure Committee and a past Regent for Illinois, Indiana, and Wisconsin (2003 to 2008). He was an Adjunct Professor at Northwestern University School of Law and a Lecturer in Law at the University of Chicago Law School where he taught “White Collar Criminal Practice” and “Business Litigation” from 2000 to 2005. He is also a graduate of Stanford University (B.A.), DePaul University College of Law (J.D.) and the University of Chicago (M.B.A.).

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  • Steven F. Molo
Steven F. Molo is a partner in the law firm of MoloLamken LLP, a national litigation boutique. He represents individuals and companies in complex civil litigation and white collar criminal matters. He was admitted to the Illinois bar in 1982, the New York bar in 2004, and the bar of England and Wales in 2009. Prior to founding MoloLamken LLP, Mr. Molo was a partner in the New York office of Shearman & Sterling LLP and a partner and member of the executive committee of Winston & Strawn LLP. He began his career as a prosecutor in Chicago. Mr. Molo has served as an adjunct professor at Northwestern University School of Law and Loyola University (Chicago) School of Law, and is a member of the faculty of the National Institute for Trial Advocacy. He is a graduate of the University of Illinois College of Communications (B.S.) and the University Illinois College of Law (J.D.).

An Overview of Corporate Criminal Liability: The Principles and Process Governing Its Imposition

§ 1.01 Introduction
§ 1.02 Basic Principles of Corporate Criminal Liability
[1] Historical Development of Corporate Criminal Prosecutions
[2] The General Rule for Imposing Corporate Criminal Liability
§ 1.03 Imputing the Acts of Agents to the Corporation
[1] Directors, Managers and Employees as Agents of the Corporation
[2] Subsidiaries as Agents of the Corporation
[3] Independent Contractors as Agents of the Corporation
[4] Successor Corporate Criminal Liability
§ 1.04 Imputing Liability Through the Acts of the Organization as a Whole Rather Than Through the Acts of a Particular Agent
§ 1.05 Liability of the Corporation for Employees Acting Contrary to Express Corporate Policy
§ 1.06 Personal Criminal Liability of the Corporation’s Agents: Officers and Directors, Managers, and Subordinate Employees
[1] Direct Participation in the Crime
[2] Aiding and Abetting Liability
[3] Failure to Supervise
[4] Special Public Company Issue: Chief Executive Officer and Chief Financial Officer Certifications of Financial Reports
§ 1.07 The Special Problem of Criminal Liability for Injuries to Workers in the Workplace
§ 1.08 Criminal Liability of Partnerships and Partners
§ 1.09 Criminal Liability of Private Equity Firms
§ 1.10 The Way in Which Corporate Criminal Liability Is Imposed: An Overview of the American Criminal Justice Process
§ 1.11 Sentencing of Corporations Convicted of Crimes
§ 1.12 Federal Prosecution of Corporations
§ 1.13 Federal Prosecution of Individuals
[1] DOJ Policy in Corporate Criminal Cases
[2] Practical Impact of DOJ Policy
§ 1.14 State Prosecution of Corporations
§ 1.15 Extraterritorial Application of U.S. Criminal Law
[1] Determining When a Criminal Law Has Extraterritorial Applications
[2] Investigations of Extraterritorial Targets
[3] Criminal Statutes That Have Extraterritorial Applications
§ 1.16 Evolution and Trends in Federal Prosecutions of Corporations and Corporate Executives
[1] Evolution of Enforcement Policy
[2] Corporations
[3] Corporate Executives
§ 1.17 Some Examples of Corporate Prosecutions
[1] United States v. Siemens AG: Massive Institutional Bribery
[2] Toyota Motor Corporation: Product Safety and Overseas Conduct
[3] JPMorgan Chase NA: a Significant Civil Resolution of FIRREA and Securities Related Violations
[4] General Motors Corporation: Product Safety and False Statements to the Government
[5] Commerzbank AG: Bank Secrecy and Money Laundering
[6] United States v. Volkswagen AG: Clean Air Act and Obstruction of Justice
§ 1.18 Ten Facts Every Business Person Needs to Understand About Corporate Criminal Liability
§ 1.19 Additional Resources

Overview of Federal Enforcement of Corporate Misconduct

§ 2.01 Introduction
§ 2.02 Organization of the Department of Justice
[1] The Attorney General and the Department of Justice
[2] United States Attorneys
[3] Justice Manual
§ 2.03 Fraud
[1] Overview
[2] Mail and Wire Fraud
[3] Financial Institution Fraud
[4] Securities Fraud
[5] Fraud Against the Government
[6] Conspiracy and Attempts
[7] False Statements and False Claims
[8] Injunctions Against Fraud
[9] Health Care Fraud
[10] Federal Election Campaign Act
§ 2.04 Survey of Other Criminal Enforcement Areas and Statutes
[1] Antitrust
[2] Bribery and Extortion
[3] Commodities
[4] Consumer Products
[5] Energy Facilities
[6] Environment
[7] Exports
[8] Foreign Corrupt Practices Act
[9] Medicare and Medicaid Fraud and Abuse
[10] Immigration
[11] Imports
[12] Insurance 
[13] Money Laundering
[14] Nuclear
[15] Pension Plans
[16] Racketeer Influenced and Corrupt Organizations (RICO) Act
[17] Tax Offenses
[18] Trademarks and Copyrights
[19] Theft of Trade Secrets
[20] Workplace Protection
[21] Computer Fraud and Related Activity
[22] Aviation
§ 2.05 State and Local Authorities
§ 2.06 Foreign Authorities
[1] The UK Bribery Act 2010
[2] Sapin II: French Anti-Corruption Law
[3] Increased Multi-Jurisdictional Anti-Corruption Enforcement
§ 2.07 Additional Resources

Duties of Directors and Officers

§ 3.01 Introduction
§ 3.02 The Board of Directors
§ 3.03 Directors’ Fiduciary Duties and the Business Judgment Rule
§ 3.04 The Duty of Oversight: In Re Caremark and Its Progeny
[1] In re Caremark International Inc. Derivative Litigation
[2] Stone v. Ritter Derivative Litigation
[3] In re Citigroup Inc. Shareholder Derivative Litigation
[4] Proactive Multinational Director Actions
§ 3.05 Sarbanes-Oxley Certifications by Public Company Officers
§ 3.06 Reasons to Authorize an Internal Investigation
§ 3.07 Selection of Outside Investigation or Defense Counsel
§ 3.08 Compliance Programs
[1] DOJ Evaluation of Effective Compliance Programs
[2] DOJ-SEC Resource Guide to the U.S. Foreign Corrupt Practices Act: “One Size Does Not Fit All”
[3] Tone at the Top
[4]  Codes of Conduct
[5] Risk Assessments
[6] Periodic Risk Assessments, or “Audit Lites”
[7] DOJ Corporate Compliance Program Elements
[8] Common Compliance Program Failures
§ 3.09 Written Legal Opinions
§ 3.10 Internal Audit
§ 3.11 The Basic Structure of a Directors and Officers Insurance Policy
[1] The Coverage Grant
[2] How Much Coverage Is There? Limits of Liability, Excess Policies and Self-Insured Retentions
[3] The Nature of “Claims-Made” Coverage
[4] The Essentials of Getting Defense Costs Covered Under D&O Policies
[5] The Policy’s Definition of “Loss” Impacts the Scope of Coverage
[6] Exclusions
[7] Allocating Policy Proceeds
[8] The Impact of Misrepresentations in the Application for Insurance: Misrepresentation, Rescission and Severability
[9] Coverage for Internal Investigations and Regulatory Actions
§ 3.12 Ten Practical Tips for Handling Sensitive Corporate Internal Investigations in the Sarbanes-Oxley Era
§ 3.13 Additional Resources

Overview of Corporate Internal Investigations

§ 4.01 Introduction
§ 4.02 The Investigation Strategy
[1] Formulating Objectives
[2] Factors Influencing a Client’s Decision to Investigate
§ 4.03 Five Essential Steps
[1] Step One: Determining the Nature and Seriousness of the Allegations
[2] Step Two: Developing the Facts
[3] Step Three: Legal Issue Development and Analysis
[4] Step Four: Reporting to the Client
[5] Step Five: Remedial Recommendations and Their Implementation
§ 4.04 The Potential Investigative Team: Lawyers, Internal Auditors, Paralegals, Forensic Accountants, Investigators, and Individual Counsel
§ 4.05 Investigation Work Plan
§ 4.06 Practical Pointers Regarding Developing and Implementing a Strategy
§ 4.07 Additional Resources

Multiple Representation and Issues Involving Separate Counsel for Directors, Officers and Employees

§ 5.01 Introduction
§ 5.02 Multiple Representation
[1] Introduction
[2] Constitutional Considerations
[3] Standards of Professional Conduct
[4] Client Discussions, Full Disclosure and Consent
[5] Client Disclosure Letter
[6] Waiver of Conflict of Interest
[7] Conservative and Liberal Schools of Thought
[8] Common Scenarios of Multiple Representation
[9] Government Challenges to Multiple Representation and the Risk of Total Disqualification
§ 5.03 Separate Counsel for Individual Officers, Directors and Employees
[1] Employer Payment of Legal Fees
[2] Selection and Management of Individual Counsel
[3] Cost Controls
§ 5.04 Indemnification
[1] General
[2] Mandatory Indemnification
[3] Permissive Indemnification
[4] Advancement of Fees
[5] Sarbanes-Oxley and the Right to Indemnification and Advancement of Fees
§ 5.05 Joint Defense Agreements
[1] Doctrine
[2] Ethical Considerations
[3] Leading Cases
[4] Advantages and Disadvantages
[5] Written or Oral Agreements
[6] Waiver
[7] Withdrawal
[8] Distribution of Memoranda and Documents
[9] Clients at Joint Defense Meetings
[10] Sample Joint Defense Agreement
§ 5.06 Practical Pointers
[1] Multiple Representation
[2] Separate Counsel
[3] Indemnification
[4] Joint Defense Agreements
§ 5.07 Additional Resources

The Attorney-Client Privilege

§ 6.01 Introduction
§ 6.02 The Privilege
§ 6.03 The Rationale for the Privilege
§ 6.04 The Elements of the Privilege
[1] Identifying the Protected Communication
[2] The Requirement of Confidentiality
[3] Identifying the Client
[4] The Requirement that the Communication Be with an Attorney
[5] The Requirement that the Communication Be in Connection with the Rendering of Legal Advice or Assistance
§ 6.05 Control of the Privilege
§ 6.06 Exceptions to the Privilege
[1] The Crime Fraud Exception
[2] The Waiver Exception
[3] The Good Cause/Fiduciary-Beneficiary Exception
§ 6.07 The Complicating Factor of the Law of Privilege in the State Courts
§ 6.08 Privilege Issues Fundamental to Internal Investigations
[1] Commencement of the Investigation: “The Upjohn Memo”
[2] Employee Interviews
[3] Security of Documents
[4] Reports of Investigation
[5] Public Relations Firms
[6] In Re: General Motors LLC Ignition Switch Litigation Attorney-Client Communication and Attorney Work Product Opinion (2015)
[7] Banneker Ventures v. Graham: Work Product Privilege and Attorney-Client Communications (2017)
[8] Issues in Cross-Border Investigations
§ 6.09 Practical Pointers on Preserving the Attorney-Client Privilege in the Corporate Setting
[1] Preserving the Privilege in the Context of the Corporation’s Regular Activity
[2] Preserving the Privilege in the Context of an Internal Investigation
§ 6.10 Additional Resources

The Work Product Doctrine

§ 7.01 Introduction
§ 7.02 The Doctrine
[1] Development
[2] Supreme Court Trilogy
§ 7.03 The Elements of the Doctrine
[1] Materials
[2] Prepared in Anticipation of Litigation or of Trial
[3] By or for the Party to the Litigation or His Representative
[4] Substantial Need for the Materials in Question and an Inability to Obtain Substantially Equivalent Information Without Undue Hardship
§ 7.04 Types of “Work Product” and Applicable Protection
[1] Opinion Versus Ordinary Work Product
[2] Witness Lists
[3] Memoranda or Notes of Interviews
[4] Oral Statements
[5] Questionnaires
[6] Reports of Investigation
[7] “Selection and Compilation of Documents”
[8] Draft Affidavits
§ 7.05 Who May Assert the Privilege
§ 7.06 Exceptions to the Doctrine
[1] Voluntary Waiver
[2] Inadvertent Disclosure
[3] Testimonial Waiver
[4] Crime Fraud Exception
[5] Unprofessional Attorney Behavior
[6] Issues in Cross-Border Investigations
§ 7.07 Practical Pointers on Preserving the Work Product Privilege
[1] Preserving the Privilege in the Context of the Corporation’s Regular Activity
[2] Preserving the Privilege in the Context of an Internal Investigation
§ 7.08 Additional Resources

Gathering, Organizing and Controlling Documents

§ 8.01 Introduction
§ 8.02 Relevance of Documents to the Investigation
§ 8.03 Supervising the Gathering of Documents: Organization and Control
§ 8.04 The Gathering Process
[1] Proceeding with a Purpose in Mind
[2] Getting Started: Knowing Where to Look
[3] Collection Interviews
[4] Preserving Documents Until They Can Be Retrieved
[5] Retrieving the Documents
[6] Retrieving Documents and Data in Electronic Investigations
[7] ESI Discovery in Federal Criminal Cases
§ 8.05 Organizing and Controlling Documents
[1] The Need for Organization
[2] The Three Primary Types of Document Organization Systems
§ 8.06 The Privilege List
§ 8.07 Security of Documents and Databases
§ 8.08 Divulging Information to the Government
[1] Grand Jury Subpoenas
[2] Searches and Seizures
§ 8.09 Understanding the Pitfalls
[1] Obstruction of Justice
[2] Inadvertent Destruction of Documents
§ 8.10 International Investigations
[1] Data Protection Laws
[2] Privilege Laws
[3] Practical Mechanics in International Investigations
§ 8.11 Practical Pointers for Gathering, Organizing and Controlling Documents
§ 8.12 Additional Resources

Conducting and Memorializing Witness Interviews

§ 9.01 Introduction
§ 9.02 The Purpose of Interviews
§ 9.03 Who Should Be Interviewed
§ 9.04 The Timing of Interviews
§ 9.05 Preparing for the Interview
[1] Deciding on the Interviewer
[2] The Place of the Interview
[3] Background Information
§ 9.06 Conducting the Interview
[1] Warnings to Witnesses
[2] Asking the Questions
§ 9.07 Memorializing the Interview
[1] Whether to Create a Record
[2] Format of the Record of the Interview
§ 9.08 Understanding the Pitfalls—Obstruction of Justice and Subornation of Perjury
[1] Obstruction of Justice
[2] Subornation of Perjury
§ 9.09 The Special Problem of Interviews of Non-Employees without the Presence of Counsel
[1] The Model Rule
[2] Current Employees
[3] Former Employees
[4] Possible Safeguards for Counsel
§ 9.09A Retaliation Against Informants
[1] Civil Action to Protect Whistleblowers
[2] SEC Whistleblower Awards
[3] Criminal Prosecution of Retaliators
[4] Employee Confidentiality Agreements
§ 9.10 Practical Pointers Regarding Witness Interviews
§ 9.11 Additional Resources

Experts, Summary Witnesses, Accountants and Investigators

§ 10.01 Introduction
§ 10.02 Experts
[1] Use of Experts
[2] Federal Rules of Evidence 702, 703, 704 and 705
[3] Trends in the Admissibility of Expert Testimony
[4] Selection and Retention
[a] Selection
[b] Retention 
[5] Preparation of Experts
[6] Reports
§ 10.03 Summary Witnesses
[1] Use of Summary Witnesses
[2] Federal Rule of Evidence 1176
[3] Selection and Retention
§ 10.04 Accountants, Auditors and Tax Experts
[1] Use of Accountants and Auditors
[2] Use of Tax Experts
[3] Accountant Privileges
[4] Selection and Retention
[5] Practical Tips for Dealing with External Auditors
§ 10.05 Investigators
[1] Use of Investigators
[2] Selection and Retention
[3] Reporting
§ 10.06 Psychiatrists
[1] Use of Psychiatrists
[2] Selection and Retention of Psychiatric Experts
[3] Federal Insanity Defense
[4] Preparation of Psychiatric Defenses
§ 10.07 Practical Pointers Relating to Experts, Summary Witnesses, Accountants and Investigators
[1] Experts
[2] Summary Witnesses
[3] Accountants, Auditors and Tax Experts
[4] Investigators
[5] Psychiatrists
[6] Crisis Communication
§ 10.08 Additional Resources

Reports of Investigation: Their Contents and Their Confidentiality

§ 11.01 Introduction
§ 11.02 The Need to Report
§ 11.03 Should the Report Be Oral or Written
§ 11.04 The Content and Presentation of Reports
[1] Written Report
[2] Oral Reports
[3] PowerPoint Presentations
§ 11.05 Whether to Retain Drafts and Notes
§ 11.06 Avoiding Liability for Defamation and Other Causes of Action Brought by Persons Named in the Report
§ 11.07 Whether Confidentiality Can Be Maintained After Selective Disclosure of a Report
[1] The Strict Waiver Approach
[2] The Absolute Limited Waiver Approach
[3] Conditional Limited Waiver Approach
[4] Sample SEC-Client Letter Agreement re: Confidentiality of Disclosed Special Investigative Committee Report
§ 11.08 A Possible Legislative Solution: The “Self-Evaluative Privilege”
§ 11.09 The Special Situation of Shareholder Access to Reports in Derivative Litigation
§ 11.10 Practical Pointers in Preparing Reports of Investigation and Maintaining Their Confidentiality
§ 11.11 Additional Resources

The Grand Jury

§ 12.01 Introduction
§ 12.02 The Grand Jury Process
[1] Background
[2] General Client Instructions
[3] Subpoenas
[4] Grand Jury Reports
§ 12.03 Privileges
[1] Fifth Amendment Privilege
[2] Attorney-Client Privilege
[3] Work Product Doctrine
[4] Appealability of Grand Jury Rulings
§ 12.04 Grand Jury Appearances
[1] Three Cardinal Rules of Advice to Clients
[2] Preparation of the Client for the Appearance
[3] Role of Defense Counsel During Grand Jury Proceedings
[4] Typewritten Statements
[5] Debriefing Memorandum
[6] Reappearances Before the Grand Jury
[7] Opportunity to Appear
[8] Presentation of Exculpatory Evidence
§ 12.05 Immunity
[1] Introduction
[2] Use v. Transactional Immunity
[3] Court-Ordered Immunity
[4] State Statutory Immunity
[5] Federal-State Immunity Reciprocity
[6] Informal Immunity
[7] Perjury and False Statements
§ 12.06 Practical Pointers in Analyzing Grand Jury and Immunity Matters
[1] Grand Jury Practice
[2] Immunity
[3] Grand Jury Testimony
§ 12.07 Additional Resources

Other Government Methods of Gathering Evidence

§ 13.01 Introduction
§ 13.02 Government Interviews
[1] Initial Contact
[2] Contact of Represented Persons
[3] Debriefing
[4] Advantages and Disadvantages of Formal Client Interviews
[5] Terms of Formal Client Interviews
[6] Preparing Employees Who May Be Contacted by the Government
§ 13.03 Searches and Seizures
[1] Overview
[2] Search Warrants
[3] Administrative Searches
[4] Consent Searches
[5] Preparing for and Responding to Searches
[6] Special Computer Problems
§ 13.04 Access to Records by Contract or Law
[1] Examination of Records Clause
[2] Audit Clause
[3] Statutes
§ 13.05 Electronic Surveillance
[1] Court Ordered Interceptions
[2] Interception with Consent of One Party
[3] Title III Interception of Cell Phone Calls in Massive Insider Trading Investigation
§ 13.06 Handwriting Exemplars and Fingerprints
§ 13.07 Pen Registers and Trap and Trace Devices
§ 13.08 International Evidence Gathering
[1] Letters Rogatory
[2] Mutual Legal Assistance Treaties
[3] MLAT-Type Requests
[4] SEC and CFTC Memoranda of Understanding
[5] Extraterritorial Grand Jury Subpoenas
[6] Coordinated Efforts with the Immigration and Naturalization Service
[7] Extended Statute of Limitations in Grand Jury Investigations Involving Foreign Evidence
§ 13.09 Administrative Process
[1] Civil Investigative Demands
[2] SEC Subpoenas
[3] HIPAA Subpoenas
§ 13.10 Practical Pointers Relating to the Government’s Other Methods of Gathering Evidence
[1] Government Interviews
[2] Search Warrants
[3] Access to Records by Contract or Law
[4] Handwriting Exemplars and Fingerprints
§ 13.11 Additional Resources

Parallel Proceedings

§ 14.01 Introduction
§ 14.02 The Constitutionality of Maintaining Simultaneous Parallel Proceedings
§ 14.03 The Improper Purpose Doctrine
§ 14.04 Obtaining a Stay of the Civil or Administrative Proceedings
[1] Whether to Seek a Stay
[2] How to Obtain a Stay
[3] The Four Main Factors in Deciding Whether a Stay Will Be Granted
§ 14.05 Obtaining a Protective Order in the Civil or Administrative Proceedings
[1] Whether to Seek a Protective Order
[2] How to Obtain a Protective Order
§ 14.06 Limitations on the Use of Grand Jury Materials in Civil or Administrative Proceedings
[1] The Rule of Grand Jury Secrecy
[2] Exceptions to the Rule of Grand Jury Secrecy
§ 14.07 Gaining Access to Materials Developed Through the Administrative Investigation or Non-Grand Jury Materials Developed in the Criminal Investigation
[1] Freedom of Information Act Requests
[2] Civil Process
§ 14.08 Fifth Amendment Issues Arising Frequently in Parallel Proceedings
[1] Assertion of the Privilege in a Later Proceeding After Waiver in an Earlier Proceeding
[2] The Impact on the Company of Employee Assertions of the Privilege
[3] The Government’s Duty to Provide Miranda Warnings in the Course of Administrative Questioning
§ 14.09 Securities and Exchange Commission Enforcement Actions
[1] Introduction
[2] The SEC’s Enforcement Process: Statutory Framework and Organization
[3] Informal Investigations
[4] Formal Investigations
[5] Possible Outcomes of SEC Investigations
[6] Trend Toward Cooperation With SEC Investigations
[7] Representative Cases
[8] SEC Proceedings Against Lawyers
§ 14.10 Collateral Estoppel and Related Issues
[1] Collateral Estoppel
[2] The Related Issues of Admissions and Prior Statements
§ 14.11 Double Jeopardy Limitations on Parallel Proceedings
§ 14.12 Global Settlements
§ 14.13 Practical Pointers for Dealing with Parallel Proceedings
§ 14.14 Additional Resources

Dealing with the Prosecutors During the Investigation

§ 15.01 Introduction
§ 15.02 Inception of Government Corporate Criminal Investigations
§ 15.03 Initial Contact with Prosecutor
§ 15.04 Status of Clients
[1] Determination of Client Status
[2] Targets
[3] Subjects
[4] Non-Subjects
[5] Pre-Trial Diversion
[6] Immunized Witnesses
§ 15.05 Responses of Individual Clients to Government Status Notification
[1] Conventional Wisdom
[2] Negotiating for Immunity
[3] Unconventional Strategies
§ 15.06 Responses of Corporate Clients to Government Status Notification
§ 15.07 The Initial Conference with the Government
[1] Preparation
[2] Client Attendance at Initial Conference with the Government
[3] Case Agent or Other Law Enforcement Officer Assigned to the Investigation
[4] Identification of Specific Areas of Inquiry
[5] Discussion of Ground Rules, Timetables, Requests for Continuances, and Other Housekeeping Matters
[6] Memorandum of Initial Conference
[7] Privileges
[8] Criminal Liability and Fines
§ 15.08 Proffers
[1] Background
[2] Government Use of Proffers
[3] Oral and Written Proffers
[4] Proffer Preparation
[5] “Off the Record” Interviews
§ 15.09 Ongoing Negotiations with the Government
[1] Maintenance of Contact with Primary Prosecutor
[2] Memoranda of Meetings
[3] Conference with United States Attorney Before Indictment Decision Is Made
[4] Practical Advice for Dealing with Prosecutors
§ 15.09A Calculation of United States Sentencing Guideline Exposure
[1] Preliminary Calculations
[2] Overview
[3] Sentencing Guidelines for Individuals
[4] Sentencing Guidelines for Corporations
§ 15.09B Restitution
§ 15.10 Statute of Limitations
[1] Introduction
[2] General Standard for Determining When a Crime Is Completed
[3] Principal Federal Statute of Limitations
[4] Specific Crimes
[5] Potential Three Year Suspension of Limitations to Obtain Foreign Evidence
[6] Extension of Statute of Limitations
§ 15.11 Practical Pointers for Dealing With Prosecutors
§ 15.12 Additional Resources

Persuading the Prosecutor Not to Indict

§ 16.01 Introduction
§ 16.02 The Real Standard Used in Deciding Whether to Indict
[1] Factual
[2] Legal
[3] Policy
§ 16.03 Defense Counsel’s Role in the Indictment Decision
§ 16.04 Understanding the Factors Motivating the Prosecutor
[1] The Principles of Federal Prosecution and Standards for Initiating Prosecution
[2] The Organizational Sentencing Guidelines and the Policy Concerns They Reflect
[3] Department of Justice Policies Regarding the Impact of Voluntary Disclosure and Compliance Efforts on Indictment Decisions in Environmental Cases
[4] Department of Justice Policies Regarding Federal Prosecution of Corporations
[5] The December 2006 McNulty Memorandum
[6] The Filip Factors: Amendment to DOJ Manual 9-28.000 (2008)
[6A] Prosecuting Individual Misconduct
[7] Dual Prosecutions
§ 16.04A Understanding the Factors that Motivate SEC Enforcement Staff
[1] Introduction
[2] Securities and Exchange Commission Charging Policies
§ 16.05 Pre-Trial Diversion as an Alternative to Indictment
§ 16.05A Non-Prosecution Agreements
§ 16.05B Deferred Prosecution Agreements
[1] Factors
[2] Select Deferred Prosecution Agreements
§16.05C Potential Remedial Measures
[1] General Remedial Measures
[2] Specific Offense Remedial Measures
[3] Follow-Up
§ 16.05D Monitors
[1] Background
[2] Independent Corporate Monitor Terms
§ 16.05E Corporate Inability to Pay
§ 16.05F Avoiding the Imposition of a Monitor
§ 16.06 Whether to Present a Written Submission
[1] Risks Inherent to Using a Written Submission
[2] Advantages to Using a Written Submission
[3] Interim Written Submissions
§ 16.07 The Organization and Content of Pre-Indictment Written Submissions to the Government
[1] Introduction
[2] Description of the Subject
[3] Brief Description of the Allegation
[4] Description of the Charges Under Consideration
[5] Key Evidence Favoring the Prosecution
[6] Key Evidence Favoring the Defense
[7] Legal Arguments
[8] Policy Interests at Issue
[9] Alternatives to Prosecution
§ 16.08 Oral Pre-Indictment Presentations to the Prosecutor
[1] Who Should Attend the Presentation
[2] Contents and Structure of an Oral Presentation
§ 16.09 Review of a Line Prosecutor’s Indictment Recommendation
§ 16.10 Factors Relevant to Selecting Charges
§ 16.11 Staying Ahead of the Game
§ 16.12 Individual and Corporate Amnesty Negotiations
§ 16.13 Plea Negotiations and Alternative Resolutions
[1] Evidence
[2] Enforcement Policies
[3] Comparable Plea Agreements and DPA and NPA Resolutions
[4] United States Sentencing Guidelines
[5] Federal Rule of Criminal Procedure II
§ 16.14 Practical Sentencing Advice for Counsel Representing Executives
§ 16.15 Practical Pointers in Persuading the Prosecutor Not to Indict
§ 16.16 Additional Resources

The Internet

§ 17.01 Company Web Sites
§ 17.02 Government Web Sites
[1] Department of Justice and the Justice Manual
[2] SEC Enforcement Manual
[4] Antitrust Division: Example of a Useful Site
§ 17.03 Directory of Web Sites