White-Collar Crime

Free With Registration: Self-Detection: So Key, So Difficult

Laura A. Brevetti, a partner at K&L Gates, writes: When it comes to white-collar crime, popular opinion today is to view American corporations solely as perpetrators. However, this public ire ignores the documented reality that corporations and institutions are just as likely to be the victims of internal fraud and financial crimes, suffering direct losses in the hundreds of billions of dollars. Rather than act as sitting ducks hoping to be unaffected, corporations and institutions must remain vigilant in their efforts to detect fraud and other criminal violations and respond immediately upon detection to mitigate the harm.

The 'Upjohn' Pitfalls of Internal Investigations

Robert J. Jossen and Neil A. Steiner, partners at Dechert, discuss the wide range of Upjohn warnings currently in use and the recent actions involving the options backdating investigation at Broadcom Corporation and the SEC investigation of Stanford Financial Group that highlight the pitfalls that even very experienced counsel may encounter.

Target Health Care Fraud

John J. Carney and Robert M. Wolin, partners at Baker Hostetler, write: Considering significant actions against corporations accused of violating federal health care statutes over the past several years, the newly enacted Fraud Enforcement and Recovery Act and the growing "saber rattling" by the Department of Justice and the Department of Health and Human Services, the question arises: Can proactive internal investigative and compliance measures make a difference?

Walking the Privilege Line

John A. Nathanson, counsel with Shearman & Sterling, and K. Mallory Tosch, an associate at the firm, write: Recent changes to DOJ and SEC guidelines now forbid requests that corporations waive privilege and preclude consideration of whether the corporation waived privilege in assessing cooperation. Currently pending legislation would formalize these revisions and extend them to all government agencies. But even if codified by Congress, these changes are probably insufficient to fully exorcise the "culture of waiver" that developed under earlier guidelines. The revised guidelines mandate that all relevant facts be disclosed to the government, so corporations will still have to choose between disclosing protected information and being deemed "uncooperative."