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Baer, Miriam H. --- "When the corporation investigates itself" [2018] ELECD 262; in Arlen, Jennifer (ed), "Research Handbook on Corporate Crime and Financial Misdealing" (Edward Elgar Publishing, 2018) 308

Book Title: Research Handbook on Corporate Crime and Financial Misdealing

Editor(s): Arlen, Jennifer

Publisher: Edward Elgar Publishing

ISBN: 9781783474462

Section: Chapter 13

Section Title: When the corporation investigates itself

Author(s): Baer, Miriam H.

Number of pages: 26

Abstract/Description:

The internal corporate investigation is now an integral component of corporate compliance. Corporations invest considerable resources in identifying and explaining wrongdoing. Government prosecutors and regulators, in turn, rely upon and strongly encourage these information-generating activities. This chapter argues that the corporate investigation’s greatest challenges stem from familiar problems of individual and entity-level efforts to evade detection. As employees take steps to conceal their misbehavior, corporate actors must navigate a difficult relationship between government enforcers on the one hand and corporate employees on the other. Mediating these relationships would be difficult enough under any circumstance, but a vexatious deficiency of trust between corporate actors and government enforcers causes corporate actors to cling ever more intently to legal doctrines such as the corporate attorney-client privilege, while simultaneously conducting more intensive, intrusive and expensive investigations. The chapter concludes by noting two developments: the Department of Justice’s latest attempt to secure cooperation from corporate defendants in identifying culpable employees (the so-called “Yates Memo”), and the increasing emphasis on workplace privacy. These two developments will place even greater pressure on the corporate investigator as she attempts to reassure the corporation’s employees and regulators that each side can in fact trust the corporation to investigate itself thoroughly yet fairly.