Committee Chair Corner - White Collar Defense and Investigation Committee
David J. Wallace-Jackson
Greene Espel PLLP
dwallace-jackson@greeneespel.com
Last August, I took over as the Chair of the IADC’s White Collar Defense and Investigation Committee. I take this honor seriously for many reasons, not the least of which is that I am following in the footsteps of my colleague Peggy Kubicz Hall. Peggy poured her abundant energy into this group—and she exemplifies everything for which the IADC stands.
While our Committee is a small one, our goals for the next year are big. We need to grow in our numbers (with special attention to enhancing the diversity that we will need to be a truly great Committee and a preeminent organization) and our participation rates (by which I mean not only our Committee endeavors but also our involvement in broader IADC initiatives and activities). As a Committee, we are confident about our ability to do so.
My confidence stems, in part, from the Vice Chairs leading the charge. Put simply, we have a great group driving our goals. Kimberly Martin (kmartin@bradley.com) is Vice Chair of Programs and Projects; Michael Magner (mmagner@joneswalker.com) is Vice Chair of International; John Marti (marti.john@dorsey.com) is Vice Chair of Membership; and Marsha Rabiteau (mrabiteau@drivesresults.com) is Vice Chair of Webinar. All of them have deep experience to share and the passion we need to help us get to where want to be.
And they are working very hard. Just last month, for example, Marsha Rabiteau asked our international colleagues for their help in identifying trends, events, new laws, or key cases on white-collar issues outside the United States. This will be—and must be—a critical focus for our Committee for two basic reasons. First, many IADC corporate members have international operations and are interested in perspectives on the white-collar issues that are relevant to them in foreign jurisdictions (just like those of us in the private bar with practices that require us to stay abreast of national and international developments on these issues to protect our clients). Second, the world continues to shrink from a white-collar law enforcement perspective.
U.S. Department of Justice (DOJ) communications underscore that last point and hint at the changing enforcement landscape—as several recently announced policy initiatives that will likely affect IADC’s membership show. Last month, then Attorney General Jeff Sessions unveiled a new “China initiative” that targets Chinese companies for investigation and enforcement of FCPA violations and trade theft cases (among other areas). Last week, Deputy Attorney General Rod Rosenstein spoke about DOJ’s “No Piling On” initiative announced last May. He described the goals of that policy, in part, as enhancing DOJ’s relationships with its foreign enforcement partners and avoiding duplicative penalties being imposed on the target companies and individuals. While noting DOJ’s focus on individual accountability for corporate wrongdoing remains a priority, Rosenstein also announced that companies will not be required to identify individuals who are not “significantly involved” to get cooperation credit. And he also noted that DOJ’s civil division will have more discretion in calculating financial penalties where companies demonstrate significant cooperation.
Time will tell what the new initiatives will mean and how the policy changes will play out. (For example, how do you judge whether or not someone was “significantly involved” in corporate wrongdoing?) Hopefully, this will give you at least a taste of some of the issues percolating in the “white collar” area. What is certain is that developments in this space will matter to many of our corporate members. Some of you will undoubtedly be counseling companies caught up in such investigations—and perhaps some of you will have friends whose every action is under the government’s microscope. Our Committee and its members should be a resource for you.
Consistent with our goals, our Committee is excited to be partnering with the Trial Techniques and Tactics Committee in co-sponsoring a program at the 2019 Annual Meeting currently titled, “Civil Representation of a Party Arising from Criminal Allegations.” Our panelist will explore the unique challenges that arise when counsel represents a civil litigant in a matter that involves allegations of criminal activity. This includes the ramifications of asserting (or not) an individual’s fifth Amendment rights, motions to stay the civil case, potential coverage issues that may arise, coordination with the criminal defense counsel, and issue and/or claim preclusion of a criminal verdict or plea. More details will be forthcoming.
The Vice Chairs and I welcome your participation in our Committee’s monthly calls. Right now, those calls take place the first Friday of every month at 9:30 central time. I encourage everyone to work hard to participate on these calls. These calls are arguably the single best way for all of us to ensure that the IADC is as vibrant as we all want it to be. If members participation is limited to just the couple of times we are physically present at wherever the geographic location of our next meeting happens to be, we will not maximize the chances of achieving the kind of thriving exchange of ideas and professional networking that we all want.
I am looking forward to a great year and our Committee is excited about working with all of you. In just a couple months, we will have our next opportunity to see each other in person, strengthen our bonds, and re-kindle the fire we will need to reach our ambitious goals. The Midyear Meeting at the Ritz-Carlton Bacara in Santa Barbara, California, is set for February 23-28, 2019. I encourage you to visit the Midyear Meeting page on the IADC Calendar of Events, where all the program information and registration information is available—and sign up! (And while you are on the website looking at upcoming events, take note of this summer’s Annual Meeting, which will take place in Asheville, North Carolina on July 7-12, 2019.)
Thank you for your time and attention—and best wishes for 2019!