Breakout: Responding to Government Investigations

The federal government’s investigations of corporate misconduct are increasingly focused on cooperation and self-reporting from target companies. The Department of Justice (DOJ) policy for Foreign Corrupt Practices Act cases creates a presumption that, absent aggravating circumstances, companies that self-report, fully cooperate and timely and appropriately remediate will not face criminal prosecution, and the DOJ has begun using this policy as “nonbinding guidance” in other areas of white-collar enforcement. The Securities and Exchange Commission (SEC) and DOJ have stated their intention to pursue, punish, and deter the individuals who are responsible for corporate misconduct. The SEC’s bounty program has increased its ability to bring powerful enforcement proceedings against companies and individuals. The change in administration and resulting turnover in agency personnel has also raised uncertainty around longstanding enforcement priorities and practices. What do these and other potential changes in 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? This panel explores practical strategies for minimizing and insuring against risks to corporations, directors, and senior executives that arise in government investigations and lawsuits.