Internal Investigations

Subscribe to Internal Investigations

On September 15, 2022, Deputy Attorney General (DAG) Lisa Monaco, announced several significant policy updates impacting the U.S. Department of Justice’s (DOJ) enforcement practices for both corporations and individuals. Speaking to attendees at the NYU Program on Corporate Compliance and Enforcement (PCCE), DAG Monaco detailed a series of initiatives, some of which appear to have emerged from the Corporate Crime Advisory Group formed last fall to conduct a full-scale review of the DOJ’s corporate enforcement efforts. The DOJ simultaneously released a memorandum outlining the guidance announced by DAG Monaco. 

The new guidance bolsters enforcement priorities that DAG Monaco has emphasized over the past year. As discussed in further detail below, the Department’s policy updates are substantive and have significant ramifications on both the individual and corporate level, including: (1) continued focus on individual accountability; (2) enhanced policies to predictably reward voluntary self-disclosure; (3) further clarity on the impact of corporate recidivism considerations on negotiated resolutions with the DOJ; and (4) new metrics for evaluating effective corporate compliance, including compliance conscious compensation structures and policies on the use of personal devices and third party messaging applications.…

Continue Reading DOJ Announces Sweeping Policy Updates Targeting Corporate Criminal Enforcement and Individual Accountability

In a criminal case against two former officers of Cognizant Technology Solutions Corp. (Cognizant), a New Jersey federal district court recently ordered Cognizant to produce unredacted internal interview memorandums and notes prepared by its outside counsel. The court found that the company had waived attorney-client privilege and work-product protection over those documents by disclosing the information contained in them to the U.S. Department of Justice (DOJ). The decision is a cautionary reminder to companies of the risk of waiving privilege when cooperating with the government.…

Continue Reading Court Holds Oral Downloads of Witness Interviews Waive Corporate Privilege

Following up on a recent Public Chatter blog in a series about internal investigations, note that Federal Rule of Evidence 502(g) states:

(1) “Attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

(2) “Work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared

…

In recognition of Mental Health Awareness Month, we are highlighting the use and application of trauma-informed investigation techniques during internal investigations.

In this episode, Perkins Coie White Collar & Investigations partners Gina LaMonica and Caryn Trombino are joined by Dr. Brenda Ingram, EdD, LCSW, of the University of Southern California, to discuss conducting trauma-informed investigations…

When administrators of colleges and universities first learn of misconduct, abuse, or neglect allegations within their communities—especially those involving wrongdoing committed by beloved mentors or authority figures within the institution—it is critical that the institution react swiftly and thoughtfully by conducting appropriately-scaled, rigorous, and credible investigations.  Such investigations are primarily focused on establishing what factually…

Attorneys counseling companies on white collar matters are likely to have discovered crimes such as theft, bribery, and embezzlement committed by current and former employees, as well as by competitors. Such bad acts (and bad actors) are not regularly reported to law enforcement.

In fact, what prevents more widespread reporting is the understandable fear that…

The German Federal Ministry of Justice and Consumer Protection recently presented draft legislation to Parliament that could pose a marked shift in how corporate crimes are sanctioned in Germany. If enacted, this draft legislation, titled the Corporate Sanctions Act (“CSA”), would permit the criminal prosecution and conviction of a corporate entity in circumstances where the entity’s directors or officers committed corporate crimes, and where the entity failed to take reasonable precautions to prevent employees or agents from engaging in criminal wrongdoing. Companies based or doing business in Germany will be subject to the law.
Continue Reading Germany Proposes New Corporate Sanctions Act with Global Reach

Last month, the UK Serious Fraud Office (“SFO”) published non-binding, internal guidance expanding on its view of corporate cooperation in prosecutions. The guidance marks a notable departure from the SFO’s past reluctance to clarify its expectations for corporations seeking cooperation credit, while still making it clear that no outcome will be “guaranteed,” even for companies that have provided “full, robust” cooperation.  Rather, cooperation is just “one of many factors” that the SFO will consider when making a charging decision.
Continue Reading UK Regulator Sets High Bar for Corporate Cooperators

Last month, attorneys from around the world descended upon Buenos Aires to tango with criminal justice and anti-corruption experts at the International Bar Association’s 22nd Annual Transnational Crime Conference.  Conference highlights included remarks from distinguished members of the Argentine government, including the Minister of Justice and Human Rights, President of the Financial Information Unit, and Supreme Court President.  These officials focused their comments on criminal justice reforms in Argentina, the role of regulators and the judiciary in establishing and inspiring confidence in the rule of law, and the hope that such efforts would improve Argentina’s reputation in the global fight against graft and corruption.

Panelists and attendees also discussed similar efforts across the globe, cross-border cooperation, and collateral issues to consider when representing clients subject to international anti-corruption inquiries or enforcement actions. Of note were discussions regarding the following:

Evolving Mechanisms for Detecting and Penalizing Corruption  

  1. Increased use of money laundering statutes and administrative remedies.

Although most anti-corruption laws around the world criminalize the payment of bribes to government officials, the receipt of bribes (passive bribery) is conspicuously absent from laws like the U.S. Foreign Corrupt Practices Act (“FCPA”).  As a result, beneficiaries of bribes have traditionally escaped FCPA liability.  However, panelists noted, recent years have seen an increase in anti-money laundering prosecutions and civil administrative actions targeting profits from corrupt dealings that otherwise fall outside the reach of traditional anti-bribery paradigms.  Using money laundering statutes, U.S. prosecutors were able to prosecute officials working for Venezuela’s state-owned energy company, Petroleos de Venezuela, S.A., who accepted bribes from several U.S. executives (themselves prosecuted under the FCPA).

Panelists noted that more than €2 billion in anti-money laundering fines were assessed globally in 2018 alone, calling banks not yet penalized for money laundering issues “the exception and not the norm.”  Another new norm is the decoupling of predicate offenses (i.e., conduct generating illegal proceeds) from allegations that such proceeds were in fact “laundered,” allowing prosecutors to bring intentional and negligent money laundering cases.  Panelists also warned that lawyers were being targeted more than ever as negligent money launderers, based on the sources of client payments.
Continue Reading Highlights from Transnational Crime Conference: Expanding Anti-Corruption Enforcement & Cross-Border Cooperation

The arrests in the college admissions bribery scandal may have ushered in a new era of scrutiny by federal law enforcement.  Perkins Coie attorneys anticipate questions that prosecutors, civil litigants and the public may ask in the weeks and months ahead, and offer six key foundational steps all institutions of higher learning should take immediately…