Internal Investigations Flashcards
What contexts trigger the need for an internal investigation
Regulatory reporting requirements, whistleblower complaints
What regulatory requirements most frequently trigger an internal investigation
Securities laws, environmental laws, banking laws, SRO rules
What are the requirements for cooperation credits under the Yates memo
A full investigation and ID of the people involved; cooperation in both civil and criminal investigations; no individual immunity for corporate settlements; settlements are deferred until problem individuals have been analyzed; civil cases focus on actual wrongdoing
Under the Yates memo what should you do if there is criminal conduct?
Self-report before anyone else (you must be the first)
What does the cooperation credit get you?
reduced fines, shorter sentences, deferred prosecution agreements
What factors should be considered when deciding to investigate?
Is there an obligation under statute or regulation; is there a requirements to act under civil or criminal law ; what is the extent of the misconduct?
What are the pros of ordering an investigation?
Cooperation credits; can reduce exposure to prosecution fines penalties and damages; can help you get ahead of the evidence; can be used to proactively remediate
What are the cons of ordering an investigation?
Can create a document trail of misconduct; can create a roadmap for your adversaries; missteps can fuel the litigation fire; can expose individuals to liability; once you’ve started there’s no turning back; can be expensive and time consuming
How can you protect attorney-client privilege in an investigation?
Keep the investigation team small; create joint defense agreements; understand the laws that apply
Upjohn v. US
Attorney client privilege applies to all employees who work with the attorney and provide information re: the investigation
Arthur Andersen v. US
Intent is required for a charge of obstructing justice
