Click here download the government investigations 2020 report, published by Getting the Deal Through.

Jurisdictions covered

The following 12 jurisdictions are covered in this report:

Australia; Colombia; England & Wales; Greece; India; Italy; Japan; South Korea; Switzerland; Turkey; Ukraine; United States.

Questions

The set of questions relating to the topic of government investigations and answered by the guide for each jurisdiction covered include:

Enforcement agencies and corporate liability

• • What government agencies are principally responsible for the enforcement of civil and criminal laws and regulations applicable to businesses?
• • What is the scope of each agency’s enforcement authority? Can the agencies pursue actions against corporate employees as well as the company itself? Do they typically do this?
• • Can multiple government entities simultaneously investigate the same target business? Must they coordinate their investigations? May they share information obtained from the target and on what terms?
• • In what fora can civil charges be brought? In what fora can criminal charges be brought?
• • Is there a legal concept of corporate criminal liability? How does the government prove that a corporation is criminally liable for the acts of its officers, directors or employees?
• • Must the government evaluate any particular factors in deciding whether to bring criminal charges against a corporation?

Initiation of an investigation

• • Must the government evaluate any particular factors in deciding whether to bring criminal charges against a corporation?
• • What events commonly trigger a government investigation? Do different enforcement entities have different triggering events?
• • What protections are whistle-blowers entitled to?
• • At what stage will a government entity typically publicly acknowledge an investigation? How may a business under investigation seek anonymity or otherwise protect its reputation?

Evidence gathering and investigative techniques

• • Is there a covert phase of the investigation, before the target business is approached by the government? Approximately how long does that phase last?
• • What investigative techniques are used during the covert phase?
• • After a target business becomes aware of the government’s investigation, what steps should it take to develop its own understanding of the facts?
• • Must the target business preserve documents, recorded communications and any other materials in connection with a government investigation? At what stage of the investigation does that duty arise?
• • During the course of an investigation, what materials (for example, documents, records, recorded communications) can the government entity require the target business to provide? What limitations do data protection and privacy laws impose and how are those limitations addressed?
• • On what legal grounds can the target business oppose the government’s demand for materials? Can corporate documents be privileged? Can advice from an in-house attorney be privileged?
• • May the government compel testimony of employees of the target business? What rights against incrimination, if any, do employees have? If testimony cannot be compelled, what other means does the government typically use to obtain information from corporate employees?
• • Under what circumstances should employees obtain their own legal counsel? Under what circumstances can they be represented by counsel for the target business?
• • Where the government is investigating multiple target businesses, may the targets share information to assist in their defence? Can shared materials remain privileged? What are the potential negative consequences of sharing information?
• • At what stage must the target notify investors about the investigation? What should be considered in developing the content of those disclosures?

Cooperation

• • Is there a mechanism by which a target business can cooperate with the investigation? Can a target notify the government of potential wrongdoing before a government investigation has started?
• • Do the principal government enforcement entities have formal voluntary disclosure programmes that can qualify a business for amnesty or reduced sanctions?
• • Can a target business commence cooperation at any stage of the investigation?
• • What is a target business generally required to do to fulfil its obligation to cooperate?
• • When a target business is cooperating, what can it require of its employees? Can it pay attorneys’ fees for its employees? Can the government entity consider whether a business is paying employees’ (or former employees’) attorneys’ fees in evaluating a target’s cooperation?
• • What considerations are relevant to an individual employee’s decision whether to cooperate with a government investigation in this context? What legal protections, if any, does an employee have?
• • How does cooperation affect the target business’s ability to assert that certain documents and communications are privileged in other contexts, such as related civil litigation?

Resolution

• • What mechanisms are available to resolve a government investigation?
• • Is an admission of wrongdoing by the target business required? Can that admission be used against the target in other contexts, such as related civil litigation?
• • What civil penalties can be imposed on businesses?
• • What criminal penalties can be imposed on businesses?
• • What is the applicable sentencing regime for businesses? (Are sentences mandatory or discretionary? What are the sources of sentencing rules?)
• • What does an admission of wrongdoing mean for the business’s future participation in particular ventures or industries?