Content area
Full text
It isn't enough just to mention that you represent the company and not the employees. You have to make sure that there is no doubt about it.
THE GOVERNMENT HAS become aggressive in its investigation, auditing, and prosecution of large corporations. In the post-Enron climate, an indictment alone can devastate a company's public reputation, and hence its financial integrity. Naturally, the less attention a corporation receives from the government, the better. One way to avoid high-profile government investigations and concomitant negative press is through cooperation with the government in achieving its goals of corporate compliance. see generally Report of Investigation Pursuant to section 21(a) of the securities Exchange Act of 1934 and Commission Statemmt on the Relationship of Cooperation to Agency Enforcement Decisions, securities and Exchange Commission, at www.sec.gov/litigation/investreport/34-44969.htm (2001) (hereinafter the "Seaboard Report"); Larry D. Thompson, Principles of Federal Prosecution of Business Organizations, U.S. Dep't. of Justice (2003), available at www.usdoj. gov/dag/cftf/business_organizations.pdf (hereinafter the "Thompson Memo").
This effort will often involve internal investigations to uncover instances of misconduct, followed by the report of relevant findings to the government. Whether such internal investigations are the result of government inquiries, arise from private allegations, or are purely self-initiated, the end result is the same: When a company actively ferrets out and deals with impropriety and keeps the government abreast of uncovered misconduct, it earns the favor of the government. The Seaboard Report lists various factors that the sec will consider when deciding "whether, and how much, to credit self-policing, self-reporting, remediation and cooperation-from the extraordinary step of taking no enforcement action to bringing reduced charges, seeking lighter sanctions, or including mitigating language in documents [it] use[s] to announce and resolve enforcement actions." Seaboard Report at *2. Despite the Report's disclaimer that the factors listed are not binding on it, the message of the Report is clear: If companies cooperate with the sec in investigating and reporting misconduct, they will likely receive favorable treatment. Seaboard Report at *l-4.
The Thompson Memo echoes these sentiments. Describing the factors to be considered when deciding whether, and to what extent, federal prosecutions of corporations should occur, the Thompson Memo lists the following as a major factor: "the corporation's timely and voluntary disclosure of wrongdoing and its willingness to...