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  • 1.

    Government agencies
    What government agencies are principally responsible for the enforcement of civil and criminal laws and regulations applicable to businesses?

  • 2.

    Scope of agency authority
    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?

  • 3.

    Simultaneous investigations
    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?

  • 4.

    Civil fora
    In what fora can civil charges be brought? In what fora can criminal charges be brought?

  • 5.

    Corporate criminal liability
    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?

  • 6.

    Bringing charges
    Must the government evaluate any particular factors in deciding whether to bring criminal charges against a corporation?

  • 7.

    Investigation requirements
    What requirements must be met before a government entity can commence a civil or criminal investigation?

  • 8.

    Triggering events
    What events commonly trigger a government investigation? Do different enforcement entities have different triggering events?

  • 9.

    What protections are whistle-blowers entitled to?

  • 10.

    Investigation publicity
    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?

  • 11.

    Covert phase
    Is there a covert phase of the investigation, before the target business is approached by the government? Approximately how long does that phase last?

  • 12.

    What investigative techniques are used during the covert phase?

  • 13.

    Investigation notification
    After a target business becomes aware of the government’s investigation, what steps should it take to develop its own understanding of the facts?

  • 14.

    Evidence and materials
    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?

  • 15.

    Providing evidence
    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?

  • 16.

    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?

  • 17.

    Employee testimony
    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?

  • 18.

    Under what circumstances should employees obtain their own legal counsel? Under what circumstances can they be represented by counsel for the target business?

  • 19.

    Sharing information
    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?

  • 20.

    Investor notification
    At what stage must the target notify investors about the investigation? What should be considered in developing the content of those disclosures?

  • 21.

    Notification before investigation
    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?

  • 22.

    Voluntary disclosure programmes
    Do the principal government enforcement entities have formal voluntary disclosure programmes that can qualify a business for amnesty or reduced sanctions?

  • 23.

    Timing of cooperation
    Can a target business commence cooperation at any stage of the investigation?

  • 24.

    Cooperation requirements
    What is a target business generally required to do to fulfil its obligation to cooperate?

  • 25.

    Employee requirements
    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?

  • 26.

    Why cooperate?
    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?

  • 27.

    Privileged communications
    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?

  • 28.

    Resolution mechanisms
    What mechanisms are available to resolve a government investigation?

  • 29.

    Admission of wrongdoing
    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?

  • 30.

    Civil penalties
    What civil penalties can be imposed on businesses?

  • 31.

    Criminal penalties
    What criminal penalties can be imposed on businesses?

  • 32.

    Sentencing regime
    What is the applicable sentencing regime for businesses?

  • 33.

    Future participation
    What does an admission of wrongdoing mean for the business’s future participation in particular ventures or industries?

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