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While legal protections for whistleblowers in the United States were first adopted in the late 1970s for federal employees, statutory protections enacted in the last 20 years have substantially increased protection beyond the federal workforce to certain private-sector employees.  These protections create a number of potential issues for companies today, ranging from employee retaliation lawsuits to regulatory investigations. …
Continue Reading Whistleblowers: Who Are They and Why Should You Care?

The overall success of an investigation depends on the flow of communications between those overseeing an investigation, those conducting it and the company’s relevant stakeholders.  As such, it is necessary to identify responsibilities and define the structure of communications at the outset of the investigation…
Continue Reading Dealing with an Investigation: Communication

Effectively dealing with a crisis often requires disclosure to government authorities, shareholders, and other stakeholders, even when many facts remain unknown.  Companies must toe a delicate line when assessing when, to whom, and how much to disclose, especially in the absence of complete information. …
Continue Reading Disclosure and Notification Considerations When Managing a Crisis

Depending on the matter, data collection and management can be among the most daunting and logistically difficult tasks. Ensuring that the full relevant universe of data is being preserved and considered and that accurate recordkeeping is being performed is essential to managing large volumes of information and, in turn, facilitating fact-finding goals and risk assessment.
Continue Reading Dealing with an Investigation: Data Collection and Management

The beginning stages of an investigation are often the most critical.  At the outset of any investigation, information is often limited and events are unfolding quickly.  As a result, it is important to develop a clear and adaptable plan that is appropriately scoped, identifies the right team and sets forth the steps that will be taken as part of the investigation.  Having a written plan in place is crucial to making sure that all relevant stakeholders are on the same page about what activities the investigation will include.  It also ensures that the investigation is managed effectively and is guided by a clear set of objectives. …
Continue Reading Dealing with an Investigation: Planning Ahead

Choices made at the outset of a crisis can play a critical role in a company’s ability to maintain future privilege claims. Recent cases highlight the risks of:

1. Sharing privileged communications with third-party consultants;
2. Conducting witness interviews through non-lawyers; and
3. Discussing the crisis with a former employee.
Continue Reading Preserving Privilege in a Crisis

A company faced with a crisis needs to act quickly to assess and determine the scope of any potential liability in order to guide its first response and frame the forthcoming investigation.  Issues overlooked in the early phases of an investigation could prove very costly down the road, limiting options or potentially subjecting a company to greater penalties.
Continue Reading Assessing Risks and Potential Liability in Responding to a Crisis

On March 25, 2019, partners Lev Dassin and Arthur Kohn participated in a webcast hosted by The Conference Board, entitled “Corporate Prosecutions: What Companies, Boards and Executives Need to Know.”  Daniel Gitner, a partner at Lankler Siffert & Wohl, also participated on the panel.

The panelists and moderator Doug Chia, executive director of The Conference Board, began by discussing corporate prosecutions generally, including the history of corporate prosecutions and how DOJ attitudes regarding corporate prosecutions have changed over time.  Dassin explained that the DOJ has more recently refocused its attention on prosecuting individuals engaged in corporate misconduct.
Continue Reading Cleary Partners Participate in Panel Discussion on Corporate Prosecutions

On September 14, 2018, a federal judge in the Southern District of New York certified as a class action a securities fraud suit against hedge fund Och-Ziff Capital Management Group LLC (“Och-Ziff”) and two of its executives.[1]  Shortly after the decision certifying the class, the parties informed the court that they had reached an agreement in principle to settle the case, which had gone forward on the basis of allegations that Och-Ziff had failed to make adequate disclosures related to its knowledge of the investigation.
Continue Reading Certification of Securities Class Action Against Och-Ziff Relating to FCPA Violations Highlights Potential Collateral Consequences of FCPA Investigations

On June 12, 2018, in People v. Credit Suisse Sec. (USA) LLC the New York Court of Appeals dismissed the Attorney General’s Martin Act claim against Credit Suisse Securities (USA) LLC and affiliated entities on the grounds that this claim was barred by a three year statute of limitations. The Court of Appeals thus overruled…