Key Considerations In US Government Investigations

• Published date: 19 September 2022
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Employment and HR, Government, Public Sector, Criminal Law, Financial Services, Corporate and Company Law, Money Laundering, Securities, White Collar Crime, Anti-Corruption & Fraud, Whistleblowing
• Law Firm: Debevoise & Plimpton
• Author: Ms Arian M. June, Winston M. Paes and Douglas S. Zolkind

In summary

Guiding a client through a US government investigation requires advising on a myriad of complex strategic decisions. This article outlines certain critical considerations for companies and their counsel as they navigate criminal, civil and regulatory investigations, whether being led by the Department of Justice or an agency such as the Securities and Exchange Commission, the Commodity Futures Trading Commission or the Office of Foreign Assets Control.

Discussion points

• At the outset of a US government investigation, counsel should evaluate how the investigation began and how far it has progressed to assess how best to respond.
• Careful consideration must be given to undertaking an internal investigation if the company has not already done so.
• Cooperation (including self-reporting any new violations) carries significant benefits and risks, and must be tailored to the specific agency's expectations.
• Care must be taken to engage with the government and respond to requests without waiving the attorney-client privilege or other applicable privileges.
• Parallel investigations by multiple federal, state or foreign agencies carry unique challenges and require careful coordination.

Referenced in this article

• US Department of Justice, Justice Manual, Principles of Federal Prosecution of Business Organizations
• US Securities and Exchange Commission, Enforcement Manual
• US Commodity Futures Trading Commission, Enforcement Manual
• US Department of Treasury, Office of Foreign Assets Control Enforcement Guidelines
• Memorandum from DOJ Deputy Attorney General Lisa O Monaco 'Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies'

In the early stages of a US government investigation, a company will often face daunting decisions that can have an outsize impact on the course of the investigation for months or years to come. As discussed below, some of the important considerations are: (1) evaluating how the investigation began and how far it has progressed; (2) preserving potential evidence and other data; (3) deciding whether to launch an internal investigation; and (4) engaging with the investigating agency while protecting the attorney-client privilege.

How did the investigation begin?

US government investigations may be initiated in many different ways. Understanding how the investigation began can provide insight into how far it has progressed, which is a key factor to consider in deciding how best to respond.

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