Corporate Enforcement

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Many investigations, particularly those that are cross-border in nature, are likely to present data privacy issues, and managing these issues is frequently a key consideration in an investigation.  By keeping data privacy laws in mind as soon as an investigation starts, an organization will avoid the risk that it has failed to satisfy certain requirements, thereby exposing itself to the possibility of a fine or sanction from a regulator.
Continue Reading Incorporating Data Privacy Considerations Into Investigations

Companies that face non-public government investigations frequently confront challenging questions regarding whether and when to disclose the existence of the investigation, how much to disclose, and any duty to update the disclosure as the investigation proceeds. The SEC recently filed a settled complaint alleging that Mylan committed accounting and disclosure violations for failing to timely…

When a company receives a request for information from an investigating authority, one initial issue is whether to cooperate with the request or to assume an adversarial (or at least non-cooperative) position.  Even if the company ultimately decides to contest the authority’s characterization of the conduct, it is often in the company’s best interest to agree to cooperate with the investigation and the authority’s requests (to the extent they are reasonable and lawful).  In this vein, there are three important ways to establish and maintain a cooperative posture with an investigating authority, while also protecting the company’s interests in the process.
Continue Reading Best Practices for Negotiating the Scope of an Investigative Request

One critical issue to consider in responding to an investigative request is whether by producing the requested data, the company will be waiving a privilege or violating legal confidentiality obligations, including data privacy restrictions.
Continue Reading Before You Press Send: Protecting Privilege and Complying With Limitations on Data Dissemination When Responding to an Investigative Request

The SFO recently released its much anticipated Corporate Co-Operation Guidance (the “Guidance”). It provides details of the types of behaviour expected by the SFO in order for an organisation to receive credit for its cooperation, including through the offer of a Deferred Prosecution Agreement (“DPA”) or by the SFO determining that it is not in…

In what appears to be an industry-wide sweep involving American Depositary Receipts (“ADRs”), over the last few years the SEC has brought enforcement actions against 13 financial institutions – including depositary banks and brokers that borrow and lend “pre-released” ADRs.  On August 16, 2019, the SEC announced the latest of these actions against two brokers…

Upon receiving a request for information from a governmental authority or other agency, it is critical to make early strategic decisions about how to respond to the request and effectively frame the scope of the inquiry.  Generally speaking, there are two overarching goals that typically inform a company’s strategy for responding to requests for information: (i) to provide the requesting authority the information it seeks as efficiently as possible while maintaining credibility and (ii) to appropriately frame and cabin the scope of inquiry to minimize the burden on the company.  To do so, the party receiving the request should first explore a number of foundational questions to understand the context of and motivation for the request.
Continue Reading Five Important Questions for Addressing an Investigative Request

In an increasingly global, regulated, and litigious environment, companies face unanticipated and potentially destabilizing events that often play out in the public eye.  Frequently, the issues organizations face during large-scale, often public, crises require more than exclusively legal skills, but also communications skills.  Below we discuss three key steps in the process for handling the public relations aspects of any crisis: (1) assembling a crisis-response team, (2) deciding whether or not to make a public statement, and (3) crafting the public message.
Continue Reading Public Relations Considerations When Managing a Crisis

On August 26, 2019, New York Governor Andrew Cuomo signed into law legislation extending the statute of limitations for claims brought under the Martin Act from three to six years. The statute reverses a New York Court of Appeals decision holding that Martin Act claims must be brought within three years.
Continue Reading New York States Extends the Statute of Limitations for Claims Brought Under Martin Act to Six Years

The Dodd-Frank Wall Street Reform and Consumer Protection Act goes further than other statutes in providing protection to whistleblowers.  In addition to broadening prohibitions against retaliation, the Securities and Exchange Commission promulgated Rule 21F-17 to ensure companies could not interfere with an individual’s efforts to raise concerns and communicate directly with the SEC.
Continue Reading Rule 21F–17: Guidance on Drafting Confidentiality and Non-Disclosure Agreements