white collar crime committee newsletter
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WHITE COLLAR CRIME COMMITTEE NEWSLETTER
ABA CRIMINAL JUSTICE SECTION WCC Committee
MESSAGE FROM THE EDITOR Welcome to the Fall 2014 Edition of the White Collar Crime Committee Newsletter.
The White Collar Crime Committee Newsletter showcases content and opinion of leading experts, scholars, and practitioners through articles written by our Criminal Justice Section members. The White Collar Crime Committee seeks your participation in its 20 regional committees and 20 substantive committees; and encourages your attendance at its national and international
conferences, CLE, and workshops.
For its third straight year, the Criminal Justice Sections International White Collar Crime Institute will host a one and a half day conference in London in October 13-14 that will feature topflight legal practitioners from across the globe tackling such topics as corporate espionage and cybercrimes, international money laundering and sanctions, cross-border evidentiary concerns, whistleblowers, deferred prosecution agreements and international internal investigations. Special focus will be paid to fraud and bribery cases from the perspective of top prosecutors
from various countries.
Closer to home, the White Collar Crime Committee will hold a WCC Town Hall meeting at the Annual CJS Fall Institute in Washington D.C.. This year, on October 23, 2014 at 2PM EST the Committee will host a complimentary CLE panel discussing the ethical obligations of government, in-house and outside counsel in conducting internal investigations and parallel prosecutions, including multiple representation, confidentiality, maintaining and challenging privilege, the duty to disclose or withdraw, and the evolving law relating to lawyers as relators.
The White Collar Crime Committee encourages you to participate year round, and also looks forward to reading your submissions for our upcoming Spring 2015 issue. If you would like to submit an article for our next edition or have ideas on a subject for a topical Newsletter, please contact the WCCC Newsletter Subcommitte Chair, Salma S. Safiedine at S.Safiedine@SPartnersLaw.com.
The Importance of Protecting the Privilege in Internal Investigations
By Stephanie Fleischman Cherny, Lee Stein, and Andrew Breavington
In late June, the District of Columbia Court of Appeals overturned a ruling from earlier this year that had been viewed as eroding the attorney-client privilege in internal investigations. In re Kellogg Brown & Root, No. 14-5055 (D.C. Cir. June 27, 2014) reconfirmed the protection of confidential employee communications made during a companys attorney-directed internal investigation that was mandated in a case familiar to all of us who conduct these investigations Upjohn Co. v. United States, 449 U.S. 383 (1981). More specifically, the Court of Appeals found that the ruling in United States ex rel. Barko v. Halliburton Co., No. 05-cv-1276 (D.D.C. Mar. 6, 2014) constituted legal error that justified a writ of mandamus to prevent production of privileged materials in the underlying false claims act case. READ MORE
DOJ Willfully Corrects Its Stance on False Statement Prosecutions: Change Could Have Major Impact on Future White Collar Investigations
By Joel M. Athey, Vince Farhat, Nicholas B. Melzer, and Kelly J. Cass The U.S. Department of Justice (DOJ) recently adopted a more defense-friendly position on criminal prosecutions under a commonly used federal charging statute, False Statement to Government Agency, 18 U.S.C. 1001 (Section 1001). To be convicted under Section 1001, a person must act willfully in making false statements to federal investigators. Courts are divided over whether Section 1001s willfulness element requires proof that the defendant knew his or her conduct was unlawful. However, in recent court filings, DOJ has quietly clarified that in order to prove a defendant acted willfully, federal prosecutors must show beyond a reasonable doubt that the defendant knew his or her statement was unlawful - not just that the statement was false. This is a material change in the governments position that could have a significant impact on future white collar investigations and prosecutions. READ MORE
Oral Modifications Notwithstanding a No Oral Modification Clause:
Preserving the Right to Contract or Enabling Havoc?
By Salma S. Safiedine, Mary Clarke, and Amanda Galbo A contract can be defined as a promise or set of promises for the specific performance of an agreement, for which the law gives a remedy if not abided by. A contract is comprised of three components: offer, acceptance, and consideration. A contract is also comprised of clauses, whether written or implied, to aid the contracting parties comprehension and interpretation of the acts to be performed by either side. This article will discuss the impact of an oral modification clause on a contractual partys attempt to change obligation; and the impact of the clause, or lack thereof, on facilitating criminal behavior. READ MORE
Nuisance or Nightmare? Responding to Highly Public Allegations
By Kristin Rivera
Its Tuesday, 9 a.m. seven days before the filing deadline for an SEC registrants annual financial statements. The companys CFO has just been notified that a prominent hedge fund manager with a significant short position in the company has posted a document online detailing a variety of allegations against the company, including accounting fraud, improper disclosures, and questions about the CEOs integrity. The CFO immediately convenes other members of senior management, including the general counsel. There is a heated debate about what to do next. Some argue that they should issue a press release categorically stating that the allegations are false. Others suggest that they consult with the audit committee or outside counsel first. The CFO wonders if she should notify their auditors. What should the companys response be? What are their governance obligations with respect to these allegations? READ MORE
CJS UPCOMING EVENTS
MARK YOUR CALENDARS FOR THE NEXT YEARS WCC NATIONAL INSTITUTE:
National Institute on White Collar Crime: March 4-6, 2015, New Orleans, LA
CJS Southeastern White Collar Crime Institute: Sept. 11-12, Atlanta, GA
Bitcoin and Other Virtual Currencies: Emerging Issues in Regulation and Enforcement: Sept. 24, webinar
International Regulation and Compliance, Oct. 1-3, Washington, DC (formerly known as the Foreign Corrupt Practices Act National Institute)
International White Collar Crime Institute: Oct. 13-14, London, UK
CJS Fall Institute, Council and Committee Meetings: October 23-25, Washington, DC
ABA/ABA Money Laundering Conference, Nov. 9-11, National Harbor, MD
Securities Fraud, Nov. 13-14, New Orleans, LA
Criminal Tax Fraud and Tax Controversy, Dec. 10-12, Las Vegas, NV
Visit The Criminal Justice Sections Complete Calendar.
RECENT CJS PUBLICATIONS Immigration Relief: Legal Assistance for Noncitizen Crime Victims, by Elizabeth Anne Campbell, Rachel DeLia Settlage, and Veronica Thronson, is an essential resource that synthesizes, explains, and guides the reader through all of the crucial components of this area of the law. Its careful organization, thorough explanations, and clear presentation demystify the daunting array of immigration statutes, cases, regulations, practice manuals, and policy memoranda that govern the adjudication of applications for immigration relief for immigrant victims of crime.
Criminal Procedure in Practice, Fourth Edition, by Jack B Zimmermann, Melanie Wilson and Paul Marcus, provides practical guidance for attorneys during each stage of a criminal case from the police investigation immediately following the crime to post-conviction reviews.
ABA Standards for Prosecutorial Investigations is one of a multi-volume set of pu