Edited by Daniel J. Fetterman and Mark Goodman, West, $186
Every day, it seems, another news story sharpens the focus on government investigations of alleged misconduct in the financial markets. Changes in the regulatory landscape and increasing law enforcement in the wake of the 2008 financial crisis have gripped the white-collar defense bar over the past few years.
Now, more than ever, in-house and outside counsel must be adept at handling multi-faceted and fast-paced government investigations. To address this challenge, counsel can draw on a new resource, “Defending Corporations and Individuals in Government Investigations,” a 2011 treatise edited by Daniel J. Fetterman of Kasowitz Benson Torres & Friedman and Mark P. Goodman of Debevoise & Plimpton.
In this comprehensive practice guide, the editors emphasize the reality that every company is bound to face some type of governmental inquiry eventually, and the authors of each chapter uniformly stress the importance of understanding how to best prepare for and achieve a successful resolution of any such investigation.
The editors have created a comprehensive primer not only for lawyers at varying stages in their careers whose focus is on government investigations, but also for any lawyer “whose practice touches government investigations,” including in-house lawyers trying to navigate the current regulatory climate.
The editors emphasize a single theme running through the 15 chapters, namely “the paramount importance of maintaining credibility with regulators once an investigation has begun.” Every experienced white-collar practitioner knows this to be, perhaps, one of, if not the most important aspects of the job of a defense lawyer, particularly in criminal matters.
The emphasis on this theme reflects the collective experience and perspective of the seasoned practitioners who wrote each chapter. In her foreword, former Southern District U.S. Attorney Mary Jo White highlights the fact that the authors have worked on high-profile cases on both sides of the table and thus have a “dual perspective,” which makes this work an invaluable “insider’s nuts-and-bolts guide.”
The organization of the guide is thoughtful and logical, beginning in the first chapter with a sobering account of recent enforcement activity and government priorities in the wake of the economic crisis, including the exponential increase in the penalties at stake, the new whistleblower program under the Dodd-Frank Act, the unprecedented enforcement actions, including against individuals, under the Foreign Corrupt Practices Act (FCPA), and the focus on investigating insider trading using atypical investigative techniques like wiretaps.
The second chapter focuses on the importance of establishing robust compliance programs. The authors, Douglas M. Lankler and Carl E. Wessel, current and former senior in-house lawyers at pharmaceutical companies (as well as former federal prosecutors), emphasize that compliance programs that are constantly updated and tested through risk assessments are crucial not only to prevent and detect wrongdoing but to serve as a mitigating factor should the company find itself facing an investigation.
The authors provide specific tips for drafting written policies and procedures, including suggesting that policies be written in plain English and that a general code of conduct be separated from policies addressed to particular areas of legal risk and coupled with effective training.
In the third chapter, James B. Comey, a former general counsel and senior Justice Department official, provides insight on the role of general counsel in handling a regulatory inquiry. This is a must read for any in-house lawyer certainly, but also for outside counsel, as it is a good reminder of the challenges and pressures faced by general counsel.
The fourth chapter follows with a detailed overview of the key aspects of conducting internal investigations. The authors encourage practitioners to develop and re-evaluate investigation plans, and address recent trends, including prosecuting witnesses for lying to in-house counsel.
The next chapters of the guide, in turn, discuss defending clients in connection with investigations by U.S. attorney’s offices, the Department of Justice, the Securities and Exchange Commission, FINRA, and the Public Company Accounting Oversight Board. The authors of these chapters are well-known and highly experienced former prosecutors and other government officials, including, among others, Lev L. Dassin, who recently served as Southern District acting U.S. attorney; Guy Petrillo, formerly chief of the Southern District’s Criminal Division; Reid M. Figel, former chief of the Securities and Commodities Fraud Task Force in the Southern District; Karen Patton Seymour, former chief of the Southern District’s Criminal Division; and Bruce M. Bettigole, who served with the SEC and NASD for over a decade.
To emphasize the importance of understanding the mission and practices of each investigative agency, which greatly affects how an investigation will proceed, the authors of these chapters recount the history of the various regulatory bodies and how their practices and priorities have evolved over recent years. The guide also dedicates chapters to specialized areas of practice, including the continually growing area of FCPA investigations, civil and criminal forfeiture actions, and managing parallel criminal and civil proceedings.
The last three chapters, two of which focus on responding to subpoenas and other requests and managing electronic information during government investigations, are especially valuable. To assist counsel with less experience in these areas, in Chapter 13, Elkan Abramowitz and Jeremy H. Temkin, former federal prosecutors and leading white-collar criminal defense attorneys, include a sample litigation hold memorandum, interview outline for document custodians, and a request for confidential treatment for materials produced under the Freedom of Information Act.
Chapter 14 provides a detailed accounting of complex data sources and production issues that frequently arise. The last chapter focuses on handling the media during government investigations and the risks associated with making public statements and using media consultants.
We have indeed reached “a high water mark for government investigations in which the risk of becoming swept up in such an investigation is greater than ever before,” as the editors conclude.
This timely compilation of guidance from highly experienced and talented practitioners is an invaluable resource that will serve the white-collar bar and others well in preparing their clients to weather the storm.
William F. Johnson and Lisa H. Bebchick are partners at Fried, Frank, Harris, Shriver & Jacobson.