Major Issues in Corporate Prosecution

Synopsis

The presenters of this course address some very important topics regarding corporate prosecution in white collar crime.  The topics discussed include wiretaps, search warrants, whistleblowers, self-reporting, admissions of guilt and court approval of negotiated settlements.

The second portion of the course includes a discussion of ethical considerations of joint representation, prosecutorial disclosure, seizure of property, Upjohn warnings and best practices for interacting with corporate employees. Through the use of hypothetical situations the presenters look at new investigative methods used by prosecutors, reacting to search warrants, and how to avoid conflicts of interest during an investigation.



Outline

I. Restoration of Public Confidence 
    A. Introduction of Attorney General Schneiderman 
    B. Loss of Faith in State Government 
    C. Statewide Focus on Public Integrity 
    D. Restoring Confidence in Government    
    E. A Deeper Look Into the Financial Services Industry 
    F. Equal Justice for All
II. Major Issues in Corporate Prosecutions: A General Counsel’s Perspective 
    A. Corporate Counsel Introductions 
    B. Dodd-Frank Whistleblower Provisions 
    C. Financial Incentives for Whistleblowers 
    D. Escalating Claims and Communicating Outcomes 
    E. Do Incentives Undermine Internal Reporting? 
    F. Self-Disclosure and Cooperation 
    G. Uncomfortable Conversations with Your Regulator 
    H. Reporting to Whom? 
    I. Global Cooperation and Self-Disclosure 
    J. International Waiver and Judicial Review of Settlements 
    K. Admission of Guilt to the SEC 
    L. Negotiated Settlement Versus Trial
III. Conflicts in the Face of Corporate Representations and Government Investigative Techniques 
    A. Introduction of Corporate Counsel and Government Attorneys 
    B. Preemptive Cooperation 
    C. Will There Be An Exchange of Information? 
    D. In-House Counsel Have Little Experience in Criminal Justice     
    E. Reacting to the Search Warrant 
    F. From Warrants to Wiretaps 
    G. Information Beyond the Scope of Cooperation 
    H. Names in the News 
    I. Representation Conflicts of Interest 
    J. My Clients Are Impeaching One Another 
    K. Using Caution with Joint Representation 
    L. Interviewing Within the Control Group 
    M. Corporate Representation of the Ex-Employee 
    N. What is “Genuine Representation?”  
    O. Question and Answer Period



Content Provided
By




 

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.

 





Speakers / Authors:

Photo of David B. Anders

David B. Anders
Wachtell, Lipton, Rosen & Katz LLP

David B. Anders joined Wachtell, Lipton, Rosen & Katz LLP in 2006 and became partner on January 1, 2008. His practice focuses on the representation of Fortune 500 and other companies in connection with the defense of regulatory, white-collar criminal and complex civil litigation matters. He regularly advises clients in connection with internal investigations and corporate governance and compliance reviews.

Prior to joining the firm Mr. Anders served as an assistant U. S. attorney for the Southern District of New York from September 1998 through December 2005. During his time at the United States Attorneys' Office he investigated and prosecuted a wide variety of securities, commodities, and investment fraud schemes, money laundering, immigration, racketeering, and associated violent crime. He tried 13 felony cases to verdict, and briefed and argued numerous appeals before the United States Court of Appeals for the Second Circuit. He was involved in several significant prosecutions during that time, including the investigation and prosecution of the fraud at WorldCom.

Mr. Anders is an officer of the Board of Directors of the Fordham Law School Alumni Association and a director of the Fund for Modern Courts. Recently, Mr. Anders was recognized by Chambers USA as a leading lawyer in litigation; by Lawdragon as one of the 500 leading lawyers in America; by Benchmark: Litigation as one of the leading litigators in New York and in the country; and by Best Lawyers and Super Lawyers as one of the leading lawyers in the field of Criminal Defense: White-Collar Crime.

Mr. Anders is a frequent speaker to bar associations and professional organizations on issues relating to securities and commodities fraud and internal investigations, including the American Bar Association, Federal Bar Council and Practising Law Institute. He was an associate adjunct professor at Fordham University School of Law from 1997 through 2006.

Mr. Anders is a 1991 graduate of Dartmouth College with an A.B. in government and graduated from Fordham University School of Law in 1994. He served as law clerk to the Hon. Denny Chin of the United States District Court in the Southern District of New York (1995-96).

Photo of Denny Chin

Denny Chin

 

Judge Denny Chin serves on the U.S. Court of Appeals for the Second Circuit. He joined the court in 2010, following an appointment by President Obama. Prior to his appointment to the Second Circuit he served on the bench in the Southern District of New York, being nominated to that post by President Clinton in March, 1994.

Judge Chin worked for the law firm of Davis Polk & Wardwell LLP from 1980 to 1982 before serving as an assistant U.S. Attorney for the Southern District for four years. In 1986, Judge Chin left the U.S. Attorney's Office and started a law firm, Campbell, Patrick & Chin, with two colleagues from the U.S. Attorney's Office. In 1990, he joined the law firm Vladeck, Waldman, Elias & Engelhard, P.C., where he specialized in labor and employment law and represented employees and unions.

Born in Kowloon, Hong Kong, Chin came to the U.S. in 1956. He received his A.B., magna cum laude, from Princeton University in 1975. In 1978, he graduated from Fordham University School of Law, where he was the Managing Editor of the Fordham Law Review. From 1978 until 1980 he clerked with Judge Henry Werker in the Southern District of New York.

Judge Chin currently teaches first year Legal Writing at Fordham University.

 

 

Photo of Bruce A. Green

Bruce A. Green

Bruce A. Green is the Louis Stein Professor at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics. He teaches and writes primarily in the areas of legal ethics and criminal law, and is involved in various bar association activities, especially in the field of legal ethics. He has been a full-time faculty member since 1987.

From October 1983 through August 1987 Professor Green was an assistant U. S. Attorney for the Southern District of New York, where he later served as Deputy Chief Appellate Attorney and Chief Appellate Attorney.

 

He is currently a member of the Multistate Professional Bar Examination drafting committee and a member and past chair of the N.Y. State Bar Association's Committee on Professional Ethics. Green currently serves on the executive committee of the N.Y. City Bar, on the Ethics Institute and board of directors of the N.Y. County Lawyers' Association, and as a delegate to the N.Y. State Bar Association. He recently served on the ABA Standing Committee on Ethics and Professional Responsibility and chaired the ABA Criminal Justice Section. 

Mr. Green’s public service record includes membership on the New York City Conflicts of Interest Board, as a member of the attorney disciplinary committee in Manhattan, as Associate Counsel in the office of the Iran/Contra prosecutor, and as a consultant and special investigator for the New York State Commission on Government Integrity. 

Mr. Green served as a law clerk to Judge James L. Oakes of the Second Circuit. He then served as judicial law clerk to Justice Thurgood Marshall at the U.S. Supreme Court.

In 1981 he received his J.D. from the Columbia University School of Law, where he was Associate Editor of the Columbia Law Review. He graduated summa cum laude from Princeton University with an A.B. in 1978. He was both a James Kent, and Harlan Fiske Stone Scholar.  

 

 

 

Photo of Mei Lin Kwan-Gett

Mei Lin Kwan-Gett
Willkie Farr & Gallagher LLP

Mei Lin Kwan-Gett is a partner in the Litigation Department of Willkie Farr & Gallagher LLP in New York. Ms. Kwan-Gett specializes in white collar criminal defense, regulatory enforcement matters, internal investigations, and complex commercial litigation. She has lectured on securities fraud, federal criminal prosecution, and trial practice.

Ms. Kwan-Gett is a member of the Federal Bar Council, the Asian American Bar Association of New York, and the American Bar Association. She is also a member of the New York American Inn of Court and the Committee on White Collar Litigation of the N. Y. State Bar Association. Additionally, she serves on the Board of Directors of the City Bar Justice Center.

Prior to joining Willkie Farr & Gallagher LLP , Ms. Kwan-Gett was a Deputy Chief in the Criminal Division of the U.S. Attorney's Office for the Southern District of New York, where she oversaw the Securities and Commodities Fraud, Major Crimes, and Public Corruption units. During her eight years as an assistant U.S. Attorney, Ms. Kwan-Gett worked on a wide variety of cases, including securities fraud, accounting fraud, market manipulation, insider trading, money laundering, obstruction of justice, Foreign Corrupt Practices Act, embezzlement, perjury, corruption, health care fraud, and immigration matters. She has tried numerous jury trials and argued and briefed several appeals. She received the Director's Award for Superior Performance as an Assistant U.S. Attorney.

From 2001 to 2003, Ms. Kwan-Gett served as Special Investigative Counsel for the U.S. Department of Justice, Office of the Inspector General, where she investigated the espionage of FBI Special Agent Robert Hanssen and the FBI's performance in preventing and detecting espionage, at the request of the Senate and House Intelligence Committees and the U.S. Attorney General. For this work, Ms. Kwan-Gett received the Inspector General's Award of Honor and the President's Council on Integrity and Efficiency's Award for Excellence.

Ms. Kwan-Gett served as a Law Clerk to the Honorable George C. Pratt of the United States Court of Appeals for the Second Circuit and was a George Slaff Fellow at the ACLU Foundation of Southern California.

Ms. Kwan-Gett graduated with an A.B. from Harvard University in 1989. She was Editor-In-Chief of the Yale Law Journal, where she received her J.D. in 1992. She was an Adjunct Assistant Professor of Clinical Law at New York University Law School, where she taught the Prosecution Clinic.  

Photo of Lorin L. Reisner

Lorin L. Reisner

Lorin L. Reisner is Chief of the Criminal Division at the U.S. Attorney's Office for the Southern District of New York. He supervises the investigation and prosecution of federal crimes by a team of more than 160 Assistant U.S. Attorneys. He was appointed in January 2012.

From 2009 until his appointment as Chief of the Criminal Division, Mr. Reisner served as the Deputy Director of the Enforcement Division of the U.S. Securities and Exchange Commission. In that position, he helped set enforcement priorities, supervised the work of the Division's more than 900 investigative professionals nationwide, made enforcement recommendations to the Commission and oversaw the trial and related litigation activity of the Enforcement Division.

While at the SEC, Mr. Reisner helped oversee and implement the most significant reorganization of the Enforcement Division in more than thirty years. He helped lead the highly successful launch of five national specialized units within the Division and was personally involved in the investigation and filing of many important cases brought by the Commission, including enforcement actions against Goldman Sachs, Citigroup, JP Morgan, Wachovia Corporation, New Century Financial, IndyMac Bancorp and others.

Before joining the SEC, Mr. Reisner was a litigation partner at Debevoise & Plimpton LLP in New York from 1996-2009. In private practice, Mr. Reisner was a nationally recognized leader in white collar matters, government investigations and business litigation.

Mr. Reisner served as an Assistant United States Attorney for the Southern District of New York from 1990-1994, where he investigated and prosecuted financial crimes, public corruption and racketeering. Mr. Reisner received the Director's Award for Superior Performance as an Assistant United States Attorney for his successful prosecution of a series of corruption cases.

He served as a law clerk to the Honorable Milton Pollack, U.S. District Judge for the Southern District of New York, from 1986-1987. Mr. Reisner received his J.D. from Harvard Law School in 1986 and his undergraduate degree from Brandeis University in 1983.

Photo of Elizabeth M. Sacksteder

Elizabeth M. Sacksteder
Citigroup Inc.

Elizabeth Sacksteder joined Citigroup in July 2009 as Deputy General Counsel and Global Head of Litigation and Regulatory Investigations. Before joining Citi, Ms. Sacksteder was Deputy General Counsel in the Law Department of The Hartford Financial Services Group, Inc., where she was Director of Litigation for seven years.

Before going in-house in 2002 she was a litigation partner at Sidley Austin Brown & Woods LLP in New York.

Ms. Sacksteder has handled a wide range of antitrust, commercial, and regulatory disputes for manufacturing, telecommunications, and financial service companies. She has argued for the prevailing party in a number of federal appeals and has extensive experience in the federal and New York state trial-level courts. She has handled regulatory matters before both federal and state agencies and has represented parties in arbitrations and mediations under the auspices of the American Arbitration Association, J.A.M.S./Endispute, and Resolutions, LLC.

Ms. Sacksteder clerked for the late Eugene H. Nickerson in the Eastern District of New York. She graduated from Princeton University with an A.B. and received her J.D. from Yale Law School in 1988, where she was the Coordinating Articles Editor for the Yale Law Journal.  

Photo of Eric T. Schneiderman

Eric T. Schneiderman

Eric T. Schneiderman was elected the 65th Attorney General of New York State on November 2, 2010. As Attorney General, Schneiderman is the highest ranking law enforcement officer for the State, responsible for representing New York and its residents in legal matters.

In his first weeks in office Attorney General Schneiderman launched a new "Taxpayer Protection Bureau" which has yielded significant returns. He also bolstered the Attorney General’s Medicaid Fraud Control Unit, which has recovered tens of millions of dollars. As part of his effort to crack down on corruption and restore the public’s trust in government, Schneiderman expanded his office’s authority to investigate public corruption involving taxpayer funds by partnering with the state Comptroller. He has taken a leading role in the national fight for a comprehensive investigation of misconduct in the mortgage market. 

As the state’s top law enforcement officer, Attorney General Schneiderman brings with him a wealth of experience, in both the public and private sectors. Before becoming Attorney General, Schneiderman was praised as a leading reformer in the State Senate. Among his many legislative accomplishments, Schneiderman passed sweeping ethics reforms and enacted the toughest law in the nation to root out fraud against taxpayers.

The Attorney General previously spent 15 years in private practice as an attorney, and later as a partner, at the firm of Kirkpatrick & Lockhart LLP, where he handled complex litigation. He was also a public interest lawyer for many years, representing clients such as the New York Urban League.

Mr. Schneiderman served as a law clerk to Judge Richard Owen in the Southern District of New York. He graduated from Amherst College in 1977 and Harvard Law School in 1982.

Photo of Amy W. Schulman

Amy W. Schulman
Pfizer Inc.

Amy W. Schulman serves as Executive Vice President and General Counsel for Pfizer Inc., as well as Business Unit Lead for the Consumer Healthcare division and President and General Manager of the Nutrition division. Since 2008 she has led the Pfizer Legal Division, which handles some of the most complex, challenging legal matters within a highly regulated industry. As of August 2012, Ms. Schulman also leads Pfizer's Consumer Healthcare (PCH), a global $4 billion business, which operates in more than 90 countries.

In 2010, Ms. Schulman took over responsibility for Pfizer Nutrition, a $2.1 billion global business and leading provider of infant formulas and other nutritional products. She led the business to increased profitably and above-market performance and was instrumental in the agreement to sell the business to Nestle for $11.85 billion.

At Pfizer, Ms. Schulman devised a groundbreaking approach to engaging outside counsel that transforms the traditional billable-hour model and produces better results for the company and its firms. In a December 2009 cover story, The American Lawyer wrote: "Amy Schulman knows how the game is played and has set out to change all the rules." Ms. Schulman and the Pfizer Legal Alliance also have been featured in numerous other publications, including The Wall Street Journal, The Financial Times, The New York Times and The American Lawyer.

The National Law Journal included her on its inaugural list of the 20 Most Influential General Counsel in 2009, and Forbes magazine included her on its list of "The World's Most Powerful Women" the same year. She was one of 10 "leading lights" featured in The Financial Times' 2011 U.S. Innovative Lawyers report and in 2012 the American Bar Association honored her with the Margaret Brent Women Lawyers of Achievement award. She is also a visiting professor at Harvard Law School, and has been a frequent guest lecturer at Harvard Law and Business Schools, Yale Law School, and Tsinghua University in Beijing, among others.

She serves on the Board of Directors for Wesleyan University and the Brooklyn Academy of Music. A Phi Beta Kappa graduate of Wesleyan University, Ms. Schulman earned her J.D. from Yale Law School in 1989.

Photo of Jane C. Sherburne

Jane C. Sherburne

Jane Sherburne is a Senior Executive Vice President of BNY Mellon and the company's General Counsel and Corporate Secretary. She is also a member of the company's Executive Committee, its most senior management body, which oversees day-to-day operations. She also has overall responsibility for government affairs. BNY Mellon is the corporate brand of The Bank of New York Mellon Corporation.

Ms. Sherburne served as General Counsel of Global Consumer Group (GCG) at Citigroup Inc., and oversaw all its legal matters. She also served as Senior Deputy General Counsel and Deputy General Counsel of Citigroup Inc. where she oversaw its global litigation. She joined Citigroup in July 2001.

Formerly general counsel for Wachovia Corporation, Ms. Sherburne was a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, D.C. and special counsel to President Bill Clinton before shifting the focus of her practice to financial services. She served as the Chief of Staff and Executive Assistant to the Commissioner of Social Security in the Carter Administration.

Ms. Sherburne received a B.A. and M.A. from the University of Minnesota, and earned her J.D. from Georgetown University Law School in 1983. She was Editor of the Georgetown Law Review

Photo of David Szuchman

David Szuchman

David Szuchman was recently appointed to serve as Executive Assistant District Attorney and Chief of the Investigation Division of the Manhattan District Attorney’s office. He had been in charge of the Cybercrime and Identity-Theft Bureau and served as Deputy Chief of Investigation since 2010. Prior to returning to Manhattan, he served two years as New Jersey’s Director of Consumer Affairs.

On Oct. 16, 2012, Manhattan District Attorney Cyrus R. Vance Jr. said, “Since returning to the Office, David has led the expansion of our Office’s High Technology Analysis Unit, greatly expanding our computer and phone forensic capabilities. Under his leadership, CITB investigated and prosecuted major cyber fraud rings, theft of intellectual property, computer intrusions and malware attacks, and organized money laundering operations. His Bureau’s training sessions have educated our paralegals, analysts and investigators in cutting-edge cyber investigation techniques, and his presentations to community organizations and schools on cyber bullying have made a significant impact. Due in large part to the efforts of David and his remarkable team, the Office recently secured more than $4 million from the New York City Council to expand our computer forensics capabilities.”

Mr. Szuchman began his government career as an assistant District Attorney in New York County. He was a trial attorney in the criminal division of the U.S. Justice Department for three years before becoming Assistant Attorney General in the New York Attorney General’s Office in 2005.

Mr. Szuchman graduated from the University of Vermont in 1994 with a bachelor’s degree in political science, and received a law degree in 1997 from Hofstra University School of Law.

Photo of Gerson Zweifach

Gerson Zweifach

Gerson Zweifach is Group General Counsel and a Senior Vice President at News Corporation. In August 2012 he was also designated Chief Compliance Officer. Prior to joining News Corporation in February, 2012 he spent more than three decades at Williams & Connolly LLP.

Mr. Zweifach’s litigation practice at Williams & Connolly LLP covered a wide variety of substantive areas including media and first amendment cases, as well as patent, antitrust and securities matters. He handled a number of high profile cases as both plaintiff’s and defendant’s counsel in courts throughout the U.S., including representing Richard A. Grasso in Spitzer vs. Grasso in the New York state courts. He tried antitrust, securities, libel, and complex commercial cases to juries and courts across the United States.

In the securities field, Mr. Zweifach has represented both plaintiffs and defendants in a wide variety of actions, including the successful defense at a jury trial of an issuer sued for allegedly imposing unauthorized trading restrictions on the company's shares. Mr. Zweifach has also been called upon to defend major law firms in securities and malpractice litigation and before the Securities and Exchange Commission.

In the antitrust field, Mr. Zweifach has successfully defended monopolization, tying, and patent antitrust actions brought in federal courts across the country.

Following law school he clerked for two judges; Judge Pierre N. Leval, United States District Court for the Southern District of New York, 1979-1980 and Judge David L. Bazelon, United States Court of Appeals for the District of Columbia Circuit, 1980-1981.

Mr. Zweifach graduated with an A.B. magna cum laude from Brown University in 1975, Phi Beta Kappa. At Yale University he served as Note Editor for the Yale Law Journal, receiving his J.D. in 1979. 

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Course Code : 773135

Release Date: 1/16/2013 12:00:00 AM
Recorded Date: 5/14/2012
Length: 2hr 38min
Format Type: Video

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