Recent Developments Relating To Corporate Investigations

The United States Department of Justice (DOJ) has recently indicated a softening of its approach to corporate prosecutions, with the Deputy Attorney General stating that the government "will not employ the hammer of criminal enforcement to extract unfair settlements" from corporations.¹ These remarks came a day after the DOJ announced that it declined to bring criminal charges against Barclays PLC for alleged frontrunning of foreign exchange transactions after it criminally charged one of the bank's traders for the conduct. The declination was specifically grounded on Barclays' voluntary self-disclosure, its thorough investigation and full cooperation with the government.

These developments coincide with recent judicial decisions that appear to weaken the protection afforded investigation materials under applicable legal privileges. Courts in the UK and US have issued rulings requiring companies to disclose to adverse parties sensitive investigation materials