Friday, August 16, 2013

Upcoming Conferences

ABA Sixth Annual Foreign Corrupt Practices Act National Institute, Sept. 18-19, 2013, Washington, D.C. - here

NACDL's 9th Annual Conference - Defending the White Collar Case: In and Our of Court, Oct. 24-25, Washington, D.C. - here


August 16, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, May 17, 2013

NACDL White Collar Crime Conference

NACDL's  3rd Annual West Coast White Collar Conference, titled Turning the Tables on the Government will be held at the  Hyatt Regency Lake Tahoe Resort on June 6-7, 2013.


May 17, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 14, 2013

Upcoming Conferences

New York City Bar - Second Annual White Collar Crime Institute - here

ABA Securities Fraud 2013, Oct. 24-25, New Orleans - here

Georgia's Institute of Continuing Legal Education (ICLE) - International Business Crimes: Foreign Corrupt Practgices Act (FCPA), Criminal Antitrust and Export Controls, June 6 - Download Program Brochure

AALS Midyear Conference on Criminal Justice, June 9-12, San Diego - here  (There's a panel on Culpability and White Collar Crime)

22nd Annual National Seminar on Federal Sentencing Guidelines, May 22-24, 2013 - Orlando, Florida - here


May 14, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, March 29, 2013

Upcoming 2013 Federal Sentencing Guidelines Seminar

22nd Annual National Seminar on Federal Sentencing Guidelines, May 22-24, 2013 - Orlando, Florida - here


March 29, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, February 4, 2013

Irving R. Kaufman Memorial Securities Law Moot Court Competition

Announcement from the Fordham Law Moot Court Board

Each spring, Fordham University School of Law hosts the Irving R. Kaufman Memorial Securities Law Moot Court Competition. Held in honor of Chief Judge Kaufman, a Fordham Alumnus who served on the United States Court of Appeals for the Second Circuit, the Kaufman Competition has a rich tradition
of bringing together complex securities law issues, talented student advocates, and top legal minds.

This year’s Kaufman Competition will take place on March 22-24, 2013. The esteemed final round panel includes Judge Paul J. Kelly, Jr., of the Tenth Circuit; Judge Boyce F. Martin, Jr., of the Sixth Circuit; Judge Jane Richards Roth, of the Third Circuit; and Commissioner Troy A. Paredes, of
the United States Securities and Exchange Commission. The competition will focus on two issues that arise in the fallout of Ponzi schemes: whether the “stockbroker safe harbor” of the Bankruptcy Code applies to Ponzi scheme operators, and the application of SLUSA, which was recently granted cert by the Supreme Court.

We are currently soliciting practitioners and academics to judge oral argument rounds and grade competition briefs. No securities law experience is required to participate and CLE credit is available.

Information about the Kaufman Competition and an online Judge Registration Form is available on our website, Please contact Michael N. Fresco, Kaufman Editor, at or (561) 707-8328 with any questions.


February 4, 2013 in Conferences, News, Scholarship, Securities | Permalink | Comments (0) | TrackBack (0)

Thursday, November 1, 2012

Upcoming Conferences

NACDL Defending White Collar Cases, New York, November 15-16th here

ABA Securities Fraud National Institute, New Orleans, November 15-16th  here

NACDL White Collar Criminal Defense College at Stetson, St Pete Beach, Florida, Jan. 9-13 here


November 1, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2012

ABA Fall Institute - Sentencing Panel

This panel was moderated by James Felman (Kynes, Markman & Felman, P.A.). The opening panelist, Hon. Ketanji Brown Jackson, Vice-Chair, U.S. Sentencing Commission, spoke about the 2012 Guideline Amendments which go into effect soon if Congress does not modify the changes.  Some of these changes are in the white collar crime arena. Specifically, there are modifications to certain frauds – insider trading, mortgage fraud, securities fraud, and financial institution fraud.  Many of these changes regard the determinations of loss.  In some instances the commission changed the application notes.The speaker also noted that the Sentencing Commission is in a multi-year study of economic crimes. (proposed amendments can be found here)

Providing a congressional perspective was Bobby Vassar (Chief Minority Counsel, Subcommittee Crime, Terrorism, and Homeland Security, U.S. House of Representatives) who reminded us that no one gets defeated in an election by being tough on crime.  Providing an executive perspective was Michael Rotker, Criminal Appellate Division, U.S. Department of Justice. From the defense side was Amy Baron Evans, Federal Defenders Sentencing Resource Counsel.

Two individuals provided international perspectives: Clarisse Moreno (Kynes, Markman & Felman, P.A.) and Stephan Terblanche (University of South Africa, Pretoria, South Africa).   Ms Moreno noted that in France if you get two years or less, very rarely will you serve prison time. Absent it being a human rights violation, in Norway the maximum penalty is 21 years. Ms. Moreno also noted that the recidivism rate is low in Norway. Stephan Terblanche noted that where movies and other items from the U.S. are looked at elsewhere, the sentencing guidelines do not export very well. Having the international perspective offered by these speakers was particularly fascinating and offered a welcomed dimension to this sentencing discussion.   


October 26, 2012 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

ABA Fall Meeting -Opening Session & Overcriminalization Panel

The ABA Fall Institute opened with welcoming remarks from William Shepherd (Holland & Knight), chair of the Criminal Justice Section, and Laurel Bellows, President of the American Bar Association. 

The opening address was given by Edwin Meese III, former U.S. Attorney General. He talked about how to make our system “effective, efficient, and just.” He noted that the National Association of Criminal Defense Lawyers (NACDL) is aligned with the Heritage Foundation on this important issue of overcriminalization. He spoke about the improper use of the criminal law and process for political reasons and social regulation, emphasizing the misuse of limited resources. He gave some frightening examples of how ordinary law-abiding citizens were caught up in the criminal process.  He said that the estimate today is that there are over 5,000 criminal statutes and then there are also regulatory offenses, and his estimate is over 300,000 federal criminal penalizing statutes and regulations.  He noted the lack of a meaningful mens rea in many of these statutes.  He mentioned how overcriminalization problems in the United States also involve cases in international law. He suggested that we need education  (educating the public and legislators) and also legislators should not be able to delegate criminal responsibility to an agency for the creation of a crime.  The legislature should also make crimes clear with a necessary ingredient being the mens rea. In this regard he advocated for an innovation of using mistake of law, something that is being experimented with in New Jersey. Finally, placing all criminal laws in Title 18 is something that he thinks will assist.

This opening address was a lead into a discussion of the next panel on the topic of Overcriminalization,
a panel moderated by Professor Sara Sun Beale. She started with questions of asking whether we have a problem of Overcriminalization and if so, what do we should do about it. The first speaker was Melodee Hanes, Acting Administrator, Office of Juvenile Justice & Delinquency Prevention, U.S. Department of Justice.  She said that U.S. detains youth five times more than the next industrialized country. She noted that Japan does not detain their youth; they resolve issues in an alternative method. Community based alternatives are needed.  Professor Roger Fairfax (George Washington) discussed the “smart on crime” philosophy. Charles J. Hynes, District Attorney of Kings County, Brooklyn, New York, who created 29 new alternative programs, including a re-entry program, noted the need for criminal law reform.The last speaker was Professor Luis Chiesa (Pace Law School), who offered a comparative perspective from a civil law view. He suggested using rules of construction similar to European courts and others.  This international perspective added another dimension to this discussion.


October 26, 2012 in Conferences, International | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2012

Upcoming Conferences & Programs

NACDL, Defending the White Collar Case, see here

Second Annual White Collar Criminal Defense College at Stetson, see here

International Society for the Reform of Criminal Law, ABA Criminal Justice Section, AALS, Fifth Annual Fall Institute - Sentencing, Reentry, Juvenile Justice, Legal Education, see here


October 14, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, October 5, 2012

Second Annual White Collar Criminal Defense College at Stetson

The NACDL White Collar Criminal Defense College at Stetson is a "boot-camp" program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.  For more information here and to apply here.

When - January 9-13

Where- Stetson University College of Law, 1401 61st St. S., Gulfport, FL 33707

Hotel - Loews Don CeSar Hotel, 3400 Gulf Boulevard, St. Pete Beach, FL 33706


A. Brian Albritton - Phelps Dunbar, LLP
Michael Attanasio - Cooley, LLP
Henry W. Asbill - Jones Day
Steven Benjamin - Benjamin & DesPortes, P.C. (President of NACDL)
Joseph Bodiford - Bodiford Law
Barry Boss - Cozen O'Connor
Ellen C. Brotman - Montgomery McCracken
Robert M. Cary - Williams & Connolly, LLP
Lee A. Coppock - Stetson University College of Law
David Debold - Gibson Dunn
Lucian E. Dervan -Southern Illinois University School of Law
Ernest Dixon - Navigant Consulting
Donna Lee Elm - Federal Public Defender, Middle District of Florida
James E. Felman - Kynes, Markman & Felman, P.A.
Jack E. Fernandez - Zuckerman Spaeder, LLP
Roberta Flowers - Stetson University College of Law
Todd Foster - Todd Foster Law Group
Ross H. Garber - Shipman & Goodwin, LLP
David Gerger - Gerger & Clarke
Lawrence S. Goldman -Goldman & Johnson
Helen Gredd - Lankler Siffert & Wohl, LLP
John Wesley Hall, Jr. - John Wesley Hall Little Rock Criminal Defense
Jan Lawrence Handzlik - Venable, LLP
Rusty Hardin - Rusty Hardin & Associates, LLP
A. Jeff Ifrah - Ifrah Law
G. Douglas Jones - Haskell Slaughter Young & Rediker, LLC
Anthony A. Joseph - Maynard Cooper and Gale, P.C.
David S. Krakoff - Buckley Sandler, LLP
Sara Kropf - Baker Botts, LLP
Latour Lafferty - Fowler White Boggs
John F. Lauro - Lauro Law Firm
Johnny Lee - Grant Thornton, LLP
Janet Levine - Crowell Moring
Abbe David Lowell - Chadbourne & Parke LLP
Bruce Lyons - Lyons & Sanders Chartered
Edward A. Mallett - Mallett and Saper, L.L.P.
Bruce Maloy - Maloy, Jenkins & Parker
David Oscar Markus -Markus & Markus, PLLC
J. Cheney Mason - J. Cheney Mason, P.A.
Jon May -May & Cohen,P.A.
Michael D.Monico - Monico, Pavich & Spevack
Jane W. Moscowitz -Moscowitz & Moscowitz, P.A.
Kevin J. Napper - Carlton Fields
Susan R. Necheles - Hafetz Necheles & Rocco
William Nortman - Akerman Senterfit
Cynthia Eva Orr - Goldstein,Goldstein & Hilley
J. Edward Page - Carlton Fields
Michael S. Pasano -Carlton Fields
Marjorie J. Peerce - Stillman & Friedman, P.C.
Patricia A. Pileggi -Schiff Hardin, LLP
Barry J. Pollack - Miller & Chevalier
Wes Reber Porter -Golden Gate University School of Law
Mark P. Rankin -Shutts and Bowen, LLP
Rochelle A. Reback -Reback Law, PL
Shana-Tara Regon -Director, White Collar Crime Project, NACDL
Charles H. Rose, III -Stetson University College of Law
Kerri L. Ruttenberg -Jones Day
Brian Sanvidge - Holtz Rubenstein Reminick LLP
Melinda Sarafa -Sarafa Law, LLC
Adam P. Schwartz -Carlton Fields
William N. Shepherd -Holland & Knight, LLP
Gail Shifman -Shifman Group
Neal R. Sonnett -Law Offices of Neal R. Sonnett, P.A.
Edward Suarez - The Law Offices of Ed Suarez, P.A.
Brian L. Tannebaum -Tannebaum Weiss, LLP
Larry D. Thompson - EVP Govt. Affairs, General Counsel & Corporate Secretary PepsiCo, Inc.
Gary R. Trombley -Trombley & Hanes
Lisa M. Wayne -Law Office of Lisa M. Wayne
Morris Weinberg, Jr. -Zuckerman Spaeder, LLP
Jeffrey Weiner -Jeffrey S. Weiner, P.A.
Adrienne Urrutia Wisenberg -Barnes & Thornburg, LLP
Solomon L. Wisenberg - Barnes & Thornburg, LLP


October 5, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, September 30, 2012

Second Annual White Collar Criminal Defense College at Stetson - January 9-13, 2013

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

Seminar Location:
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707

Hotel  Accommodations:
Loews Don CeSar Hotel
3400 Gulf Boulevard St.
Pete Beach, FL 33706

For more information here.


September 30, 2012 in Conferences | Permalink | Comments (1) | TrackBack (0)

Sunday, September 23, 2012

Annual Scholarship Conference- October 19-20-Cleveland-Marshall College of Law

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress. The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. 

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at by September 22, 2012.Any late submissions will be considered on a space available basis only.

For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers.  To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at

In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools.  If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at For more information about CSLSA, visit our website at


September 23, 2012 in Conferences | Permalink | Comments (1) | TrackBack (0)

Sunday, June 3, 2012

Federal Sentencing Guidelines Conference - Fraud Panel

The recent federal sentencing guideline conference had a panel moderated by Professor Doug Berman (Ohio State) on fraud/theft - it was part two for this conference on the topic of the fraud/theft sentencing guidelines. The panelists were: Harry Chernoff (AUSA Southern District of NY); Lisa Mathewson (Law Offices of Lisa A. Mathewson); Tracy A. Miner (Mintz Levin Cohn Ferris Glovsky & Popeo).

Harry Chernoff emphasized his belief that who the judge is can make a difference in the sentence received in a fraud/theft case. Lisa Mathewson noted how "loss is an imperfect" statement of culpability. Tracy A. Miner suggested that one needs to "look at the motivation of the particular individual." In this regard there was discussion how a corporation may be getting a pass because of a deferred prosecution.

Looking at 2B1.1 and how to assess "gain or loss," Lisa Mathewson reminded listeners that when the loss is "0" that is a number that can and should be used. Tracy Miner noted that prosecutors are trained to increase the loss figure. In this regard it was noted that loss in some cases can end up as 360 to life, because there are so many potential aggravators. It was noted that is important to look at lack of gain as a mitigating factor that warrants a move downward.

It was noted how courts set the bar extremely low in what will be considered "sophisticated means." Tracy Miner noted that computers being used should not make the conduct sophisticated, as even kindergarten students use computers these days.


Some panelists noted that one needs to look at what was the real conduct and whether it being increased just because this was conduct highlighted in recent days. Tracy Miner reminded listeners to try and convince the government of the benefits of the defendant’s conduct. For example, there may be good collateral consequences such as did special education kids benefit and will there be severe consequences if the loss is placed very high.

The end of the panel discussion looked at commission considerations on the horizon and one position taken by some was that the commission should look at the whole guideline as opposed to just tweaking parts.


June 3, 2012 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2012

Corporate Sentencing Statistics With Commentary

Some have been claiming that corporate prosecutions are down in numbers.  It certainly has not seemed that way, so I was glad to see the numbers, which demonstrate that corporate sentencings have been average over the past few years.

Lisa Rich, Director of the Office of Legislative and Policy Affairs at the United States Sentencing Commission provided the following corporate statistics for the recent Federal Sentencing Conference (although I have reworded some of what she provided): In FY 2011, there were 160 organizational cases and 151 pled guilty and 9 were convicted after jury trials. Probation was ordered in 111 cases and 31 had court ordered compliance/ethics programs. Three cases received credit for self-reporting and 44 received credit for cooperating with the government. But of the approximately 74 cases in FY2011 for which the Commission had Chapter 8 culpability information, there were no entities receiving full credit for having an effective compliance program. Not one of the 74 cases received credit under subsection (f).

These statistics do not reach the full corporate efforts by DOJ since they fail to include non-prosecution agreements or deferred prosecution agreements that have not gone through chapter 8.  So some bottom line observations: 1) if the government decides to prosecute a corporation - it has an incredibly high chance of success; 2) more emphasis needs to be put into teaching corporations how to operate an effective compliance program; 3) studies need to examine whether by using deferred and non-prosecution agreements the government is increasing prosecutions against corporate individuals (it certainly seems likely that this would be the case).


May 31, 2012 in Conferences, Deferred Prosecution Agreements, Government Reports, News, Prosecutions, Settlement, Think Tank Reports | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 10, 2012

Upcoming Conferences & Webcasts

NACDL 2d Annual West Coast White Collar Conference - June 7-8, Lake Tahoe here

New York City Bar, 1st Annual White Collar Crime Institute - May 14, 2012 here (50% discounts off of member and non-member prices for government and public interest attorneys, students and academics; 50% discounts off of member and non-member prices for attorneys working for the District Attorney’s Office, U.S. Attorney’s Office, Legal Aid, New York Inspector General’s Office and other Law organizations; 20% discounts off of member and non-member prices for firms and corporations that register 4 or more people for this program).

WestLegalCenter, Defending Corporations and Individuals in Government Investigation - Conducting Effective Internal Investigations, (includes Daniel J. Fetterman and Mark Goodman) here  (provides an interesting discussion on different aspects of an internal investigation).


April 10, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, March 15, 2012

NACDL White Collar Criminal Defense College at Stetson

The inaugural NACDL White Collar Criminal Defense College at Stetson opened tonight with a standing ovation for Terri MacCarthy, who spoke about cross-examination.


March 15, 2012 in Conferences, Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Saturday, March 3, 2012

2012 ABA White Collar Crime Program - Summary of Posts

Five posts from the 2012 ABA White Collar Crime Conference in Miami Beach, Florida can be found here, here, here, here, and here. For materials from the conference, see here. Next year is Las Vegas.


March 3, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

2012 ABA White Collar Crime Conference - Ethics

The 2012 ABA White Collar Crime Conference had two ethics panels. The first, Top Ten Reasons You’ll Wish You Had Become a Trusts & Estates Lawyer: Ethical Pitfalls and Blunders in White Collar Practice, was moderated by Professor Bruce Green (Fordham). On this panel was Helen Gredd, Daniel R. Alonso, Evan A. Jenness, and Laura Ariane Miller. Professor Green skillfully walked the panel through a hypothetical that included a host of ethical problems. The panelists did not agree on everything - which is so common when discussing ethics issues. One thing was very clear - the white collar practice comes with many ethics dilemmas and defense counsel has to consider these issues throughout all facets of the case.

The second ethics panel also emphasized the difficulty for white collar practitioners, the title of the program being the Prosecution of Attorneys in Connection With Providing Legal Advice. This panel was moderated by Morris "Sandy" Weinberg, Jr., with the panelists discussing the prosecution of the associate general counsel of GlaxoSmithKline.

Sara M. Bloom started the discussion of the Lauren Stevens case by saying that this was not a case about a discovery dispute. This, she said, was a case of statements that were made to the government. Reid H. Weingarten , in response, emphasized how his client’s actions were not criminal. It was clear that Lauren Stevens was a strong enforcer at the company and that she was well-respected as being ethical. Further, she hired well-respected outside counsel. The question was - what more, if anything, could she have done.

Hon. Roger W. Titus noted that this was the only Rule 29 he has ever granted. He said that he talked to jury after this and they were pleased with the decision. He said, no one expressed concern about it being taken away from them – they just could not understand the prosecution.

Sandy Weinberg turned the tables around on this case to discuss prosecutors who fail to turn over Brady material - he asked - is it any different from what was being alleged here? Mary Patrice Brown, from the Department of Justice, said prosecutors must self report when there is a finding of a discovery violation. One hopes that others in DOJ will take her position - unless someone is going to die – give them the evidence. She noted that it can boil down to the "intent" – and reasonable minds can differ as to what the difference is with respect to intent. In this regard she said that attorneys are treated the same as any other person, although she did note that the DOJ Manual requires approvals for prosecuting an attorney (9-2.032).

Carl D. Liggio, Sr., a general counsel for 22 years, pointed out the huge challenges today for general counsel, with so many new law and regulations. You don’t know all that you need to know, he said. He told how he outlines all the negatives more forcefully then the positives and explains how it is not prudent for them to take risks. He said when it is blatantly illegal you need to put your foot down. He expressed concern that general counsel are facing reduced budgets. But he stressed the importance of supporting good valuable employees. "If you don’t support your people you have long term problems." He noted that when he accompanies someone to the SEC, he reminds the government that they too could be liable under 1001 for being misleading.

In response to Reid Weingarten’s comment that a proffer can make it difficult to put a client on the witness stand, Sara Bloom said that prosecutors who meet the person can find it much harder to prosecute the person.

(esp)(blogging from Miami)

March 3, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

ABA 2012 White Collar Crime Conference - Environmental Enforcement

This panel was moderated by Joseph G. Block (Venable). Panelists were Richard E. Byrne (Exxon), Marc R. Greenberg (Keesal, Young, & Logan), Gregory F. Linsin (BlankRome), and Stacey H. Mitchell (Chief, Environmental Crimes Section of the Environment and Natural Resources Division of the Department of Justice). The panel covered issues related to the ongoing investigation into Deepwater Horizon, Lacey Act violations, vessel pollution, and a host of other white collar related environmental matters.

The panelists talked about how to handle legal issues arising with emergency responders. Several panelists noted that the most important thing is to mitigate damages to injured, being candid to first responders, and telling them what they need to know - such as where folks may be.

When there is death or significant environmental damage occurs, you can expect that the government might investigate. Richard Bryne said you need to presume investigation - you need to set up a privileged internal investigation

The panelists talked about how to handle searches. Some panelists on the corporate side commented that you should have a developed plan in place; get to the facility as quickly as possible; instruct individuals to cooperate with the search warrant but also telling them that there is no way they must agree to be interviewed. The importance of truthfulness was stated. From the government perspective there is concern about the safety of agents.

The corporate and defense attorney panelists discussed approaches in giving Upjohn warnings to employees being interviewed. It was noted that Upjohn warnings can trigger questions from the employees being interviewed. It may be difficult for the company because they may not know at this point whether they will cooperate with the government in resolving the matter. There is also the question of whether to appoint counsel for company employees.

(esp)(blogging from Miami Beach, Florida)

March 3, 2012 in Conferences, Environment, Investigations | Permalink | Comments (0) | TrackBack (0)

2012 ABA White Collar Crime Conference - Internal Investigations

Internal Investigations in the Age of Voluntary Disclosure

This breakout session, moderated by Keely Rankin (Dechert), concerned internal investigations. A hypothetical, about a telephone message left by a rambling anonymous whistleblower reporting on activities from another country, was used to discuss a variety of issues unique to internal investigations.

Catherine Razzano started the discussion from the perspective of corporate counsel trying to decide whether to investigate and who should do the investigation. She said that you need to do some immediate investigation just to decide how to proceed (e.g., can you do a routine audit; can you trace the call; can local counsel be of assistance). It is important to keep in mind that if it is a public company it has certain reporting obligations. If an HR person does the initial investigation, and the individual is not an attorney, you may lose the privilege. In house counsel brings a certain expertise and outside counsel brings a certain independence. It was emphasized that one needs to take a measured and consistent approach – these investigations cost money.

Angela M. Machala (Scheper Kim & Harris) looked at whether there might be a reason to launch more of an investigation and she also spoke to the advantages and disadvantages of starting with the most culpable employees in setting up interviews. Cultural differences can play a part in how you proceed.

Jonathan Leiken (Jones Day) looked at the problem of what happens when you're reviewing emails and you find more problems. He said to remember - when the movie gets played back, how will the client look the most responsive.

Ryan K. Stumphauzer (O'Quinn Stumphauzer) emphasized the importance of sitting down with the control group to define expectations.

On one hand you don’t want to give incomplete or inaccurate information and on the other hand you want to act quickly. The panelists discussed the possibility that the whistleblower could beat the company to the DOJ in reporting a problem.

One thing was clear - Dodd-Frank is very scary for counsel. Ms. Razzano notes - "[w]e want to protect our employees but we want to protect company to."

(esp)(blogging from Miami)

March 3, 2012 in Conferences, Investigations | Permalink | Comments (0) | TrackBack (0)