Presenting a live 90 ‐ minute webinar with interactive Q&A Responding to Government Investigations: p g g Legal and Ethical Considerations Strategies for In ‐ House Counsel to Meet Corporate Obligations and Avoid Individual Liability THURS DAY, MARCH 10, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: T d ’ f l f Jonathan S . S ack, Principal, Morvillo Abramowitz Grand Iason Anello & Bohrer , New Y ork Eric Corngold, Partner, Friedman Kaplan Seiler & Adelman , New Y ork Thomas M. Merritt, Deputy General Counsel, Knight Capital Group , Jersey City, N.J. The audio portion of the conference may be accessed via the p y telephone or by using your computer's speakers. Please refer to the instructions emailed to regist rants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Responding to Government Responding to Government p p g g Investigations: Legal and Ethical Investigations: Legal and Ethical Considerations Considerations Considerations Considerations March 10, 2011
Jonathan S. Sack M Morvillo, Abramowitz, Grand, Iason, ill Ab i G d I Anello & Bohrer, P.C. Jonathan S. Sack is a principal of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C. His practice includes the representation of corporations and individuals in federal and state investigations and prosecutions civil and criminal and state investigations and prosecutions, civil and criminal enforcement actions, regulatory proceedings and internal investigations. Before joining Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., Mr. Sack served for more than 12 years as an Assistant U.S. Attorney for the Eastern District of New York, where he held a number of supervisory positions, including Chief of the Criminal Division. Mr. Sack has written and spoken on issues relating to attorney-client privilege, work product protection and internal investigations. He is also an adjunct professor at St. John's University School of Law, where he teaches a (212) 880 9410 (212) 880-9410 course in White Collar Crime He is also co author with the course in White-Collar Crime. He is also co-author with the Hon. Jed S. Rakoff, of Federal Corporate Sentencing: jsack@maglaw.com Compliance and Mitigation , published by Law Journal Press. 5
Eric Corngold F i d Friedman, Kaplan, Seiler & Adelman LLP K l S il & Ad l LLP Eric Corngold is at partner at Friedman, Kaplan, Seiler & Adelman, LLP, where he leads the firm's white-collar criminal defense and investigations practice. He represents businesses, their executives, and their practice He represents businesses their executives and their employees during federal and state criminal investigations, as well as in regulatory matters involving the Securities and Exchange Commission and other federal and state government agencies. He also conducts internal investigations for corporations and other institutions on behalf of officers, boards of directors, and audit committees. Before joining j g Friedman, Kaplan, Mr. Corngold served as New York State's Executive Deputy Attorney General for Economic Justice from 2007 to 2009, where he was the principal advisor to the New York Attorney General on litigation and policy concerning financial markets, antitrust matters, corporate and consumer fraud, and housing. Prior to his time in the New Y k Att York Attorney General's Office, Mr. Corngold was an Assistant United G l' Offi M C ld A i t t U it d States Attorney in the Eastern District of New York for more than a decade. In that office, Mr. Corngold had a number of different positions, (212) 833-1114 including serving as the office's Chief Assistant United States Attorney ecorngold@fklaw.com from 2005 to 2007, and the Chief of the office's Business and Securities Frauds Unit from 1999 to 2005 Mr Corngold frequently lectures on Frauds Unit from 1999 to 2005. Mr. Corngold frequently lectures on white-collar crime, securities law, and criminal procedure topics, and is currently an adjunct Professor of Law at St. John's University School of Law, where he teaches that school's course on White Collar Crime. 6
Thomas M. Merritt Deputy General Counsel, Knight D G l C l K i h Capital Group, Inc. Thomas M. Merritt is Senior Managing Director and Deputy General Counsel of Knight Capital Group, Inc. He has over 15 years of experience in the securities industry and has 15 f i i th iti i d t d h been with Knight Capital Group, Inc. since June 2000. From December 1996 to June 2000, Tom served as an enforcement attorney with NASD (now FINRA) in New York. Prior thereto, Tom was an Assistant County Attorney in Suffolk County New York and was in private practice in Suffolk County, New York and was in private practice. Tom received a B.S. degree in Business Administration in 1986 from SUNY Albany and a J.D. in 1989 from Hofstra University School of Law. tmerrritt@knight.com 7
Agenda Agenda 1:00-1:05 Introduction: Why Discuss In-House Lawyers’ Role in Government Investigations and Related Role in Government Investigations and Related Ethical Issues? 1:05-1:30 Preparing for Investigations 1:30-2:00 Conducting Investigations 2:00 2:15 2:00-2:15 Post Investigative Best Practices Post-Investigative Best Practices 2:15-2:30 Questions and Concluding Remarks 8
Program Scope I I. Preparing for investigations Preparing for investigations II. Conducting investigations III. Post-investigative best practices g p 9
I. Preparing for investigations A A. Determining whether to investigate Determining whether to investigate B. Determining who should conduct the investigation – in house or outside counsel in-house or outside counsel C. Determining whether to self-report investigation to the government government D. Determining scope of investigation E. Clarifying role of in-house counsel 10
A. Determining whether to investigate 1. Under what circumstances should a company commence an internal investigation on its own initiative? a. Internal company information b. News stories b. Government inquiry q y 2. What considerations should be kept in mind when responding to whistleblower complaints? a a. Seriousness of offense Seriousness of offense b. Source of allegation c. Specificity of information d. Affected individuals e. Regulatory requirements 11
A. Determining whether to investigate ( (cont’d) ’d) 3. Whistleblower issues a. Section 922 of the Dodd-Frank Act requires the SEC to pay between 10% and 30% of any recovery over $1 million to persons who voluntarily provide the SEC with original voluntarily provide the SEC with original information regarding a violation of the securities laws that leads to a successful enforcement action by the SEC. i. Except when the entity does not act within a reasonable time period or conducts itself in bad faith, information from certain sources (including attorney-client sources (including attorney client communications; information obtained by auditors; and information obtained in violation of the criminal laws) will not be considered original considered original. 12
A. Determining whether to investigate ( (cont’d) ’d) 3. Whistleblower issues (cont’d) ( ) b. SEC proposed rules were released in November 2010 and can be found at November 2010, and can be found at www.sec.gov/rules/proposed/2010/34- 63237.htm c. Concern that proposed rules undermine corporate compliance programs. 13
A. Determining whether to investigate ( (cont’d) ’d) 4 4. Would a shareholder demand letter typically trigger the need Would a shareholder demand letter typically trigger the need for an internal investigation? 5. 5 Ethical and statutory obligations of in house counsel Ethical and statutory obligations of in-house counsel. a. Rules of Professional Conduct b b. Sarbanes Oxley Act Section 307 Sarbanes-Oxley Act, Section 307 14
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