Legislation Proposed to Govern Use of Deferred Prosecution Agreements - 01/08
Special Matters & Investigations
January 25, 2008
ATTORNEYS
R. Joseph Burby, IV
Ann W. Ferebee
On January 22, 2008, Representative Frank Pallone, Jr. (D-NJ) introduced legislation in the U.S. House of Representatives that would require the Department of Justice to meet specific guidelines, and obtain judicial approval, prior to entering into deferred prosecution agreements with corporations under federal criminal investigation.
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Guilty Verdict in First Options Backdating Trial May Embolden Prosecutors - 08/13/07
Special Matters & Investigations
August 13, 2007
ATTORNEYS
R. Joseph Burby, IV
Stacey Godfrey Evans
W. Scott Sorrels
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Department of Justice Revises Policies on Waiver of the Attorney-Client Privilege in Corporate Fraud Investigations - 12/18/06
December 18, 2006
ATTORNEYS
R. Joseph Burby, IV
Jennifer Devine Odom
The Department of Justice has announced major changes to its guidelines for charging corporations. Most significantly, in evaluating whether a company has cooperated with a government investigation, and should therefore receive leniency, prosecutors may no longer consider the company's refusal to waive its attorney-client privilege or cut off payment of attorneys' fees for employees under investigation. Prosecutors must also now obtain approval from senior DOJ officials before requesting that a company waive its privilege and produce, for example, the results of an internal investigation or legal advice from the company's lawyers.
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Legislation Proposed to Restrict DOJ Practices on Waiver of Attorney-Client Privilege - 11/28/06
Health Care
November 28, 2006
ATTORNEYS
R. Joseph Burby, IV
On November 21, 2006, Senator Arlen Specter (R-Pa.) introduced a bill that would prohibit the U.S. Department of Justice ("DOJ") from compelling companies to waive their attorney-client and work product privileges to avoid indictment or otherwise receive credit for cooperating with a federal investigation. Because health care fraud enforcement remains a top priority for the DOJ, the issue of waiver of attorney-client privilege is critical for health care providers because it affects providers' expectations that they can retain the confidentiality of internal investigations conducted by counsel and legal advice on compliance matters.
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Georgia Legislature Approves Amendments to Georgia Corporation Code - 04/03/06
Business & Finance and Securities & Corporate Litigation
April 3, 2006
ATTORNEYS
Thomas R. McNeill
Thomas S. Richey
Louis C. Spelios
Last week, the Georgia Legislature approved Senate Bill 469, a bill which affects how Georgia corporations conduct their affairs by modernizing the Georgia Corporate Code. Specifically, the bill contains provisions which relate to: the approval process for corporate transactions; the advancement of expenses to persons entitled to indemnification as corporate directors and officers, as well as the obligation of a corporation to indemnify; proceedings during bankruptcy; and the process by which corporations, limited liability companies, and partnerships, may elect another legal form. The bill is awaiting signature by Georgia Governor Sonny Perdue.
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Necessity to Preserve Evidence Remains despite Reversal of Second Government Conviction regarding Destruction of Documentary Evidence - 03/22/06
Securities Litigation
March 22, 2006
ATTORNEYS
Jason R. Curles
Jennifer Devine Odom
The US government suffered its second setback in its effort to uphold convictions for companies charged with obstruction of justice related to the destruction of documents.
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SEC Clarifies Position on Imposing Civil Penalties - 1/04/06
Securities, Corporate & Fiduciary Litigation
January 4, 2006
ATTORNEYS
Jason R. Curles
W. Scott Sorrels
On January 4, 2006, the SEC Chairman announced a unanimously adopted policy designed to guide the market about how the SEC may use its enforcement powers to fine public companies for securities law violations.
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Federal Banking Agencies Release New BSA Manual - 8/12/05
Financial Institutions Client Alert
August 12, 2005
On June 30, 2005, the federal banking agencies jointly released a new Bank Secrecy Act/Anti-Money Laundering Examination Manual. Over the last two years examiners have imposed new requirements on institutions following unfavorable BSA examinations or as part of memoranda of understanding or consent orders. However, it was not always clear that the examiners would expect all institutions to implement the same procedures. The Manual clarifies that many of the requirements we have observed in consent orders and the like are now expected of all institutions.
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Corporate Special Investigations: Sharing Reports with the Government and the Loss of Privilege - 05/23/05
Special Matters & Investigations
May 20, 2005
ATTORNEYS
Daniel G. Ashburn
W. Bard Brockman
Ralph J. Caccia
Jennifer Devine Odom
W. Scott Sorrels
The first article in a series on issues relating to corporate special investigations.
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The "Loss Causation" Element of Securities Fraud - 04/20/05
Securities, Corporate & Fiduciary Litigation
April 20, 2005
ATTORNEYS
John R. Bielema
Michael P. Carey
Thomas S. Richey
On April 19, 2005, the United States Supreme Court unanimously held that a securities fraud plaintiff who files suit for fraud under Section 10(b) of the Securities Exchange Act of 1934 and the SEC's Rule 10b-5, in order to successfully plead the required element of "loss causation," must allege more than that a security's price at the time of purchase was inflated because of the alleged misrepresentation.
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New Regulations Concerning Relationships With Auditors and Preapproval of Services Performed by Auditors - 2003
Corporate Compliance - Security Series 2003 - 8
In This Alert: General Considerations; Disclosure Requirements; Prohibited Non-Audit Services; Audit Committee Preapproval of Auditor Services; Hiring Auditors for Employees; Partner Rotation; Prohibited Auditor Compensation
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SEC Adopts Final Rules Related to Professional Conduct for Attorneys - 2003
Corporate Compliance - Security Series 2003 - 9
In This Alert: Attorneys Covered by the Rules; Reporting Requirements; The QLCC Reporting Alternative; Issuer Confidences; Responsibilities of Supervisory Attorneys and Subordinate Attorneys;
Sanctions and Disciplinary Actions; "Noisy Withdrawal" Revisited and an Alternative Proposed
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Mandatory Electronic Filing and Website Posting of Section 16 Reports - 2003
Corporate Compliance - Security Series 2003 - 10
In This Alert: Effective Date; Methods of Electronic Filing; Extension of Same Day Filing Deadline; Disclosure of Late Filings; Access Codes
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SEC Implements "Internal Control" Provisions of the Sarbanes-Oxley Act and New Filing Requirements for Sections 302 and 906 Certifications - 2003
Corporate Compliance - Security Series 2003 - 11
In This Alert: SEC Implements Internal Control Provisions of the Sarbanes-Oxley Act and New Filing Requirements for Sections 302 and 906 Certifications; New Filing Requirements for Certifications Accompanying Exchange Act Reports
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Requirements for Public Company Websites - 2003
Corporate Compliance - Security Series 2003 - 12
Key Points: Periodic Reports; Section 16 Filings - Forms 3, 4 and 5; Earnings Releases; Code of Ethics; Proposed NYSE Requirements; Preparation
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SEC Proposes Rules Requiring Electronic Filing and Website Posting Of Forms 3, 4 And 5 - 2003
Corporate Compliance - Security Series 2003 - 5
In This Alert: What Companies Should Do Now; Required Electronic Filing of Forms 3, 4 and 5; Required Website Posting of Forms 3, 4 and 5
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SEC Adopts Rules Regarding Codes of Ethics and Audit Committee Financial Expert - 2003
Corporate Compliance - Security Series 2003 - 6
In This Alert: Codes of Ethics Disclosure; Audit Committee Financial Expert Disclosure; Safe Harbor for Audit Committee Financial Experts; Additional Guidance
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Standards Related to Listed Company Audit Committees - 2003
Corporate Compliance - Security Series 2003 - 7
In This Alert: Audit Committee Member Independence; Responsibilities Relating to Registered Public Accounting Firms; Procedures for Handling Complaints; Authority to Engage Advisors; Funding; Other Factors; Changes in Audit Committee Disclosure Requirements
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SEC Compliance Reminders - 02/03/03
Corporate Compliance - Security Series 2003 - 1
During the past several months, the Securities and Exchange Commission adopted several new rules and issued a number of releases affecting the content or timing of filings that publicly-held companies are required to make with the SEC. Most of these new requirements were adopted by the SEC as a result of the Sarbanes-Oxley Act of 2002. Some of these provisions are currently in effect while others will become effective later in 2003.
The attached checklist summarizes regulatory developments that will affect SEC filings during this proxy season and for the balance of the calendar year 2003 and, for those rules or requirements not currently in effect, highlights the applicable compliance deadlines.
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Client SEC Issues Final Rules Revised - 02/24/03
Compliance - Securities Series No. 2003-2
In This Alert:
Application of New Requirements; "Off-Balance Sheet Arrangement;" Contractual Obligations.
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Questions Directors Should Ask RE: D&O Liability Insurance
Securities, Corporate & Fiduciary Litigation
February 16, 2005
ATTORNEYS
Thomas S. Richey
Recent class action settlements involving payment by outside directors from their personal funds have heightened concerns about the adequacy of director and officer liability insurance coverage. This may appear to be a new issue, but directors have had to pay their own way on many not well-publicized occasions in the past, either because the company on whose board they served had no Directors & Officers (D&O) insurance, because the policy limits were inadequate, or because the insurer denied coverage based on exclusions or sought to rescind the policy for alleged misrepresentations in the application for coverage or accompanying financial information.
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Increased SEC Aggressiveness in Investigations and Enforcement Actions: New Initiatives, Tougher Stances, Wider Exposure and Stiffer Penalties for Non-cooperation - 09/04
Securities & Corporate Litigation
September 15, 2004
ATTORNEYS
Jennifer Devine Odom
Thomas S. Richey
W. Scott Sorrels
The SEC's new aggressive approach to investigations and enforcement has significantly raised the stakes for public companies in crisis, their officers and directors, and third parties who do business with them. The SEC's treatment of "cooperation" in its investigations requires immediate decisions by companies, their officers and directors and their counsel upon the first hint of employee misconduct or financial irregularities. These early decisions will likely affect the course of future litigation against the company and insurance coverage.
What do you need to know as an officer or director of a public company, as an individual or company doing business with a public company, or as counsel or auditors of a public company?
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