Against the backdrop of the recent banking and financial markets crisis, enforcement agencies around the world are increasingly collaborating to investigate allegations of accounting and financial fraud, insider trading, Ponzi schemes, bribery of foreign government officials, other securities law violations, tax evasion, money laundering, and antitrust violations. Accordingly, multinational and domestic companies with substantial overseas footprints are conducting more multijurisdictional and cross-border internal investigations in an effort to respond to the enforcement agencies’ investigations.
These multijurisdictional and cross-border investigations tend to multiply the magnitude of complex investigatory issues that a company faces in government investigations by the Department of Justice, the Securities and Exchange Commission, the New York State Attorney General or other U.S. federal or state enforcement agencies. Among many others, these issues include data privacy laws or other blocking statutes (e.g., state secret laws), employee-friendly labor laws, attorney-client privilege issues, language and cultural barriers, conflicting information technology platforms, document retention policies and practices that fall short of U.S. standards, and improper application by U.S. government agencies of Mutual Legal Assistance in Criminal Matters Treaties (MLATs) or Memoranda of Understanding (MOU). Counsel conducting internal investigations either for purposes of self reporting or in response to government-initiated investigations or enforcement actions must pay close attention to these pitfalls.
