Breakout Session: Responding to Government Investigations

The federal government’s investigations of corporate misconduct are increasingly focused on cooperation and self-reporting from target companies, with an emphasis on specific information about individuals at the company responsible for the wrongdoing. The DOJ, through the Yates Memo, has made it a priority to pursue, punish, and deter individual wrongdoers. The SEC’s decisions to step back from its traditional “neither admit nor deny” settlement practice and to bring more actions through administrative proceedings rather than in federal court also portend a more difficult litigation path for defendants. The SEC’s bounty program has the potential to increase dramatically the Commission’s ability to bring powerful enforcement proceedings against companies and individuals. What do these changes, and other changes that may arise under the new administration, mean for directors when it comes to government investigations and litigation, whether civil or criminal? What strategies are available to directors who are concerned about government over-reach, not to mention their own personal exposure? And how does the government’s focus on individual accountability affect D&O insurance and indemnification agreements? This panel explores practical strategies for minimizing and insuring against risks to corporations, directors, and senior executives that arise in government investigations and lawsuits.