When a company is under the government’s scrutiny, one lawyer often represents a group of employees as its pool counsel. However, problems can arise, like whether all of the clients’ interests are truly aligned.
One way to look at the situation: It’s like a pool party.
“The pool counsel is like the lifeguard who keeps the pool clean and keeps the clients safe,” said Jessica Nall, partner at Farella Braun + Martell LLP in San Francisco. “If somebody in the pool has a conflict, they risk making the pool dirty and they may need to leave the party.”
Nall, based in San Francisco and leading the firm’s white-collar crime and corporate investigations practice, is one of more than 125 panelists next week at the American Bar Association’s Annual Institute on White-collar Crime in New Orleans. This marks the conference’s 33rd year, with about 1,300 legal professionals expected to attend and learn new trends from heads of the U.S. Department of Justice criminal division, the U.S. Securities and Exchange Commission and general counsel of global corporations.
Others include defense attorneys, corporate in-house counsel and prosecutors. Over four days, panelists will cover topics ranging from defending sexual harassment investigations and crisis management to money laundering, and trends in enforcement of the Foreign Corrupt Practices Act and antitrust laws.
A keynote speaker will be former U.S. Department of Justice Fraud Division Head Sandra Moser, who just joined Quinn Emanuel in January. Other keynote speakers include Hon. Bernice B. Donald, U.S. Circuit Judge, Seventh Circuit and Brian Benczkowski, the recently confirmed Assistant Attorney General of the Criminal Division of the U.S. Department of Justice.
Here are some of the expected panels.
Jan Neilsen Little, a partner with San Francisco-based Keker, Van Nest & Peters LLP, said that a securities enforcement panel will be discussing how the laws around insider trading have changed since the 2016 U.S. Supreme Court opinion in Salman v. United States, which decided that a “tippee” of confidential information can be liable for trading on inside information even if she or he is not compensated.
One of the panelists will be the former head of enforcement at the SEC and now Deputy U.S. Attorney from the Southern District of New York Robert Khuzami, who has been leading the DOJ’s investigation into Donald Trump’s former attorney Michael Cohen.
“Khuzami’s the real deal,” Neilsen Little said.
Sexual Misconduct and #Metoo
Over the past two years, companies have started dealing with sexual misconduct allegations more publicly, presenting different challenges for attorneys in the investigation, prosecution and defense of the cases. The panel includes Uber’s Deputy General Counsel Tammy Albarrán, New York County District Attorney Cyrus Vance Jr., Covington & Burling LLP partner Nancy Kestenbaum and Ropes & Gray partner Joan McPhee.
Domestic and International Money Laundering
A panel covering anti-money laundering will have speakers including the U.S. Department of Justice Criminal Division Chief of Money Laundering and Asset Recovery Deborah Connor and Mara Senn of the World Bank.
San Francisco-based Lisa Tenorio-Kutzkey of DLA Piper is set to moderate a panel about new trends in the investigation, prosecution and defense of criminal antitrust matters. Others on the panel include Acting Deputy Assistant Attorney General for the U.S. Department of Justice Criminal Enforcement Antitrust Division Richard Powers, Hogan Lovells partner Kathryn Hellings, David Oscar Markus of Markus/Moss in Miami and Mark Rossman of Rossman Saxe in Troy, Mich.
Priorities for the U.S. Department of Justice and U.S. Securities and Exchange Commission’s handling of FCPA violations will be covered in a panel led by former Baker McKenzie partner Robert Tarun, author of The Foreign Corrupt Practices Handbook. Also on the panel will be the Foreign Corrupt Practice Act Unit’s chief at the U.S. Securities and Exchange Commission, Charles Cain.
A panel is focused on how the 24-7 news cycle affects the criminal justice system will discuss balance of what defense attorneys communicate that can affect a jury pool, as well as how to handle communications with social media, said Ira Raphaelson, a partner at White & Case in Washington, D.C. who will be on the panel.
“Rules for prosecutors are quite clear,” Raphaelson said. “The rules for defense counsel are what we will be discussing. You’re not supposed to make statements that will affect a jury pool. Our mission is to show the difficulty in handling these issues in modern times.”
Bruce Gerstman is the Director of Investigations for Waterfront Intelligence Inc. based in Berkeley, Calif.