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WHITE COLLAR CRIME Director and Officer Liability in Financial Institutions: A Deskbook By Samuel Rosenthal A comprehensive guide to civil, criminal, and administrative liability Director and Officer Liability in Financial Institutions: A Deskbook is designed to protect those at the forefront of liability—directors and officers—and to offer the practitioner a guide to defend them against civil, criminal, and administrative proceedings by either governmental or private parties. This guide provides an understanding of the liability that may arise in several areas, exploring what lawsuits have been filed seeking damages; whether criminal exposure exists; what criminal statutory provisions may be triggered by conduct at issue; and whether administrative agencies are likely to bring charges. The Deskbook explores developments that have created today’s climate of increased regulation and enforcement and analyzes criminal, civil, and administrative cases relating to the existing financial crisis, including the mortgage-backed security litigation. In addition, it discusses areas unrelated to the financial crisis, including how each of the following areas impacts directors and officers in the discharge of their duties: • The Consumer Financial Protection Bureau (CFPB) and its role in policing unfair, deceptive, and abusive practices violations • The Safeguards Policies issued by the Federal Trade Commission, and likely agency initiatives targeted to directors and officers of financial institutions regarding privacy policies • Enforcement related to money laundering, including having appropriate policies in place and the filing of suspicious activity reports Samuel Rosenthal is chair of the Government Investigations and Litigation practice group at Patton Boggs LLP, New York, N.Y. –––––––––––––––––––––––––––––––––––––––––––––––––––––––––– “This book is an essential resource that everyone involved in D&O liability issues should have on their desks.” —The D&O Diary, published by Kevin M. LaCroix, Esq. –––––––––––––––––––––––––––––––––––––––––––––––––––––––––– SUMMARY OF CONTENTS Chapter 1. From Crisis to Crisis: Learning From the Past Part I. Sources of Liability Chapter 2. The Statutory Landscape Chapter 3: Duties of Directors, Officers, and Other Insiders Chapter 4. Civil Liability of Insiders Chapter 5. Civil Liability of Directors and Officers Under Federal Statutes Chapter 6. Civil Liability of Consultants to Financial Institutions Chapter 7. Criminal Liability Chapter 8. Consumer Protection and Privacy Chapter 9. Administrative Actions Part II. Government Enforcement Chapter 10. Governmental Agencies Involved in Enforcement Actions Chapter 11. Recent Civil Agency Initiatives and Policies by the Federal Agencies Chapter 12. Recent Criminal Actions Against Directors, Officers, and Consultants to Financial Institutions Chapter 13. The Government Investigation Part III. Defense Techniques and Tactics Chapter 14. The Prelitigation Defense Investigation Chapter 15. The Civil Case Chapter 16. Criminal Proceedings Chapter 17. Special Problems of Parallel Proceedings Chapter 18. Joint-Defense Agreements and Privileges Chapter 19. Paying for the Cost of Defense Appendices Table of Cases Index Responding to Corporate Criminal Investigations By Kirby D. Behre and Morgan J. Miller Proven strategies and techniques to effectively defend each stage of criminal prosecution Federal investigations and prosecutions of corporations and their employees continue to increase, and corporate counsel are spending more time and effort responding to those government inquiries. Corporate counsel must be familiar with everything from nuts-and-bolts issues such as document collection, retention, and production, to legal doctrines imposing criminal liability on corporations and their employees. A former federal prosecutor and a former SEC enforcement attorney, collectively with decades of experience in both bringing and defending against such cases, have teamed up to provide a guide on how to respond to federal government investigations and how to develop proactive strategies to prevent corporate criminal liability. Responding to Corporate Criminal Investigations is an essential resource for defense counsel and corporate executives. The authors provide an insider’s roadmap, based on their own experiences with a wide variety of federal cases, for counsel and professionals to navigate every stage of the investigative process. A true desk reference, Responding to Corporate Criminal Investigations covers each of the essential topics, including: • The bases for corporate criminal liability and the fundamentals of prosecution • Best practices for responding to government inquiries • Subpoenas and warrants • Managing documentary evidence • Maintaining attorney-client privilege • Undertaking internal investigations • Corporate indemnification and insurance • The expanded use of corporate monitors and deferred and non-prosecution agreements The resource includes discussion of the complex steps for conducting an effective and efficient internal investigation, including the methods used and practical tips to avoid the pitfalls most often encountered. Recognizing that many corporations also face simultaneous inquiries by the SEC, the treatise also includes relevant considerations for defending parallel proceedings and understanding the impact of a multifaceted investigation. Kirby D. Behre is a partner in the Litigation Practice of Paul Hastings LLP, Washington, D.C. Morgan J. Miller is a partner in the Litigation Practice of Paul Hastings LLP, Washington, D.C. SUMMARY OF CONTENTS Chapter 1. Corporate Criminal Investigations—An Overview Chapter 2. The Responsible Corporate Officer Doctrine Chapter 3. Best Practices for Managing Documents in Government Investigation Chapter 4. Application of the Attorney-Client Privilege to Corporate Representation Chapter 5. Grand Jury Subpoenas Chapter 6. Search Warrants Chapter 7. Conducting Corporate Internal Investigations Chapter 8. Corporate Plea Agreements Chapter 9. Corporate Monitors Chapter 10. Deferred Prosecution and Non-Prosecution Agreements Chapter 11. Corporate Indemnification and Advancement Policies—Insurance Coverage 2013/568 pp. Hardcover/ISBN 978-1-61746-006-7 Order #2006/$395.00 www.bna.com/bnabooks/rcci 2012/1,084 pp. Hardcover/ISBN 978-1-61746-225-2 Order #2225/$395.00 New Supplement Due Winter 2014. www.bna.com/bnabooks/dol 30 www.bna.com/bnabooks
WHITE COLLAR CRIME False Claims Act: Whistleblower Litigation, Sixth Edition By James B. Helmer, Jr. Effectively litigate qui tam cases with this definitive guide Last published in 2007 by Top Gun Publishing LLC (Cincinnati, Ohio), False Claims Act: Whistleblower Litigation, Sixth Edition provides guidance and analysis of the False Claims Act (FCA) and the many different legislative developments and judicial opinions surrounding it. In the Sixth Edition, practitioners will find discussion of pharmaceutical company liability; circuit-by-circuit analysis of Civil Rule 9(b) to complaints; bankruptcy proceedings; statute of limitations for whistleblower employment protections; identifying alternate proceeding; disclosure of defendants’ fee information; settlement challenges; and state and municipal statutes. The treatise also provides samples of motions in limine used in recent cases; HIPAA and PHSA complaint protective orders; U.S. Bankruptcy Court Proof of Claim and Application of Trustee to Employ Special Counsel; and more. The Sixth Edition comes with a searchable CD-ROM, providing letters, complaints, statements, interrogatories, requests, motions, and affidavits. SUPPLEMENT INFORMATION >>> The 2013 Supplement includes recent decisions applying the FCA to the Davis- Bacon Act, including United States ex rel. Windsor v. Dyncorp, Inc.; United States ex rel. Wall v. Circle C Construction, LLC; and United States ex rel. IBEW, Local Union No. 98 v. Fairfield Corp.; administrative proceedings as a bar to qui tam actions; use of the Fair Debt Collection Practices Act to attach a defendant’s property; tax deductibility of FCA settlement; and more. –––––––––––––––––––––––––––––––––––––––––––––––––––––––––– “With the assistance of Helmer’s treatise, potential stumbling blocks become stepping stones, providing a vantage point for anticipating legal and tactical challenges.” —Joseph E. B. White, Nolan & Auerbach, P.A., Former President and CEO, Taxpayers Against Fraud Education Fund, and Editor, False Claims Act & Qui Tam Quarterly Review –––––––––––––––––––––––––––––––––––––––––––––––––––––––––– James B. Helmer, Jr., is a Senior Partner and President of Helmer, Martins, Rice & Popham Co., L.P.A., in Cincinnati, Ohio. SUMMARY OF CONTENTS Chapter 1. Whistleblowers Fighting for What’s Right Chapter 2. History of Qui Tam Litigation Chapter 3. Statutory Framework of the False Claims Act Chapter 4. The Constitutionality of the Qui Tam Provisions Chapter 5. Subject Matter Jurisdiction Chapter 6. Other Threshold Issues Chapter 7. Attorney-Client Relationships in False Claims Act Litigation Chapter 8. Preparation of the Sealed False Claims Act Case Chapter 9. Discovery in False Claims Act Cases Chapter 10. Common Defenses Chapter 11. Common False Claims Act Motion Practice Chapter 12. Specialized Knowledge and Expertise: Use of Testifying and Nontestifying Experts Chapter 13. Trial Strategies in the False Claims Act Case Chapter 14. Damages Chapter 15. Whistleblower Protections in the Workplace Chapter 16. Relator’s Share of the Recovery Chapter 17. Attorneys’ Fees Chapter 18. Appeals Chapter 19. Settlement Chapter 20. The Media, Congress, and the Public Interest Chapter 21. Future Outlook for the False Claims Act Chapter 22. State False Claims Statutes Chapter 23. The FCA and the Supreme Court Appendices Table of Cases Index 2012/1,532 pp. Hardcover with 2013 Supplement Order #9296P/$475.00 2013 Supplement alone/ISBN 978-1-61746-296-2 Order #2296/$200.00 New Cumulative Supplement Due Fall 2014. www.bna.com/bnabooks/fca Call Bloomberg BNA at 1.800.960.1220 for your free 30-day review. Whistleblowing: The Law of Retaliatory Discharge, Second Edition By Daniel P. Westman and Nancy M. Modesitt (Main Volume); Janie F. Schulman and Nancy M. Modesitt (2013 Cumulative Supplement) Effectively litigate and advise on whistleblower cases in this contentious area of employment law Whistleblowing: The Law of Retaliatory Discharge, Second Edition explains the nuts and bolts of the Sarbanes-Oxley Act; the Patient Protection and Affordable Care Act of 2009, which created whistleblower protections for employees in the health care sector; the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created new protections for employees who report concerns to the Bureau of Consumer Financial Protection and financial incentives for employees who report wrongdoing to the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC); and other federal and state laws. This treatise tracks litigation and legislation in detail to give practitioners up-to-date information on the latest issues, procedural problems, and strategies. SUPPLEMENT INFORMATION >>> The 2013 Cumulative Supplement includes analysis of developments under the Dodd-Frank Act, including the SEC’s use of the Whistleblower Bounty Program and new cases addressing the reach of the Act’s anti-retaliation provisions; discussion of the retroactive effect of the 2012 Whistleblower Protection Enhancement Act; explanation of the scope of protections and administrative enforcement scheme for whistleblowers in the automotive industry pursuant to the Moving Ahead for Progress in the 21st Century Act (MAP-21); recent federal court of appeals decisions interpreting the job-duties limitation on whistleblower claims based on the First Amendment; decisions from state and federal courts interpreting state whistleblower protection laws; examination of the expansion or narrowing of whistleblower protections under the public policy exception in several states; and new court decisions regarding the intersection of public policy wrongful termination and the right to protest guns in the workplace. –––––––––––––––––––––––––––––––––––––––––––––––––––––––––– “…[This treatise] provides both the substance and strategy that corporate and employment lawyers will need to work in this new and emerging area.” —Robert J. Barry, Labor & Employment Law Section, Kaufman & Canoles, P.C., Norfolk, Va. –––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Daniel P. Westman is a partner in the law firm of Morrison & Foerster LLP, McLean, Va. Nancy M. Modesitt is an Assistant Professor at the University of Baltimore School of Law, Baltimore, Md. Janie F. Schulman is a partner in the law firm of Morrison & Foerster, LLP, Los Angeles, Calif. SUMMARY OF CONTENTS Chapter 1. The Evolution of Whistleblower Protections Part I. Key Issues for Advocates and Advisors Chapter 2. Analytical Framework: Balancing Workplace Responsibilities and Conscience Part II. The Legal and Regulatory Structure Chapter 3. Protections in the Public Sector Chapter 4. Statutory Protections in the Private Sector Chapter 5. Common Law Protection: The Public Policy Doctrine Chapter 6. The Sarbanes-Oxley and Dodd-Frank Whistleblower Provisions Chapter 7. Protections of General Application: Civil Rights Laws and the False Claims Act Part III. Strategies for Litigation and Avoiding Litigation Chapter 8. Preemption and Related Issues Chapter 9. Litigating Whistleblower Cases Chapter 10. Avoiding Whistleblower Litigation Part IV. Appendices Table of Cases Index 2004/456 pp. Hardcover with 2013 Cumulative Supplement Order #9380P/$295.00 2013 Cumulative Supplement alone/ISBN 978-1-61746-380-8 Order #2380/$195.00 Supplement History: 2012, $190.00/2011, $185.00 See Bundled Order #8848 on order form for best value. New Edition Due Winter 2014. www.bna.com/bnabooks/lrd 31
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