While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure. As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur. Part of the webinar series: Business Law Review 2022 See more at https://www.financialpoise.com/webinars/

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attorneys, accountants, business owners and
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4. Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
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5. Meet the Faculty
MODERATOR:
Jason W. Rubin - Goldberg, Miller, & Rubin
PANELISTS:
Matthew Beck - Chiesa, Shahinian and Giantomasi
Derek Cohen - Walden, Macht and Haran
Peter Katz - Law Offices of Peter Katz
Jessica Natali - Greenberg, Traurig
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6. About This Webinar: Defending White Collar Crime-101
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the
consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside,
the business may also face investigation, prosecution and possibly, the risk of reputational damage,
financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases,
companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how
to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without
much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode
brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is
designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether
they attend one, some, or all episodes.
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7. About This Series: Business Law Review 2022
While law school provides a great foundation, there are so many things it does not teach.
Looking to strengthen and condition your cross-disciplinary skills? Develop your flexibility by
increasing your familiarity with issues affecting a vast array of businesses? This series delves
into cutting edge issues in dynamic fields to help lawyers, business professionals, or anyone
interested in the law, with some specialized learning in seven distinct areas of law.
As with every Financial Poise Webinar, each episode is delivered in Plain English so that you
do not have to be a Business Law specialist to understand and benefit from them. And, as
with every Financial Poise Webinar, each episode brings you into engaging, sometimes
humorous, conversations designed to entertain as it teaches. Each episode in the series is
designed to be viewed independently of the other episodes so that participants will enhance
their knowledge of this area whether they attend one, some, or all episodes.
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8. Episodes in this Series
#1: Buying a Business- 101
Premiere date: 2/10/22
#2: Defending White Collar Crime-101
Premiere date: 6/9/22
#3: Doing Business Abroad-101
Premiere date: 7/21/22
#4: Construction Defect Litigation-101
Premiere date: 9/29/22
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9. Episodes in this Series
#5: Immigration Law for Business-101
Premiere date: 10/06/22
#6: Selling a Business-101
Premiere date: 11/10/22
#7: Zoning & Land Use 101
Premiere date: 12/8/22
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10. Episode #2
Defending White Collar Crime-101
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11. What is White Collar Crime?
• Term means different things to different disciplines.
• Synonymous with the full range of frauds committed by business and government
professionals.
• These crimes are characterized by:
o deceit, concealment, or violation of trust; and
o are not dependent on the application or threat of physical force or violence.
• The motivation behind these crimes is financial—to obtain or avoid losing money,
property, or services or to secure a personal or business advantage.
• Includes: corporate fraud, money laundering, and securities/commodities fraud
SOURCE: https://www.fbi.gov/investigate/white-collar-crime

12. Iterations of White Collar Crime
• Financial crimes
• Non-physical crimes – crimes that can occur on a balance sheet, computer or form
• Crime by or targeting corporations
• Crimes typically committed by the rich
• Criminal businesses or organizations
• Corporate or professional malfeasance
• Anything against the law that beat cop wouldn’t handle – everything but street crime

13. Areas of Concern for In-House Attorneys
Source: Society of Corporate Compliance Ethics, January 2016 Poll

14. Internal Investigations
• Definition: Systematic attempt by organization to determine if internal policies or legal
requirements have been violated.
• Demonstrates a company’s appreciation for compliance issues and mitigates exposure to
regulatory and law enforcement action.
• In some circumstances, legal or fiduciary duties require companies to undertake internal
investigations.
• Critical element of an effective compliance program.

15. Internal Investigations (cont’d)
• DOJ/SEC evaluate credibility of internal investigations in determining cooperation
“credit.”
• Auditors are required to evaluate investigation procedures and findings: “shadow
investigation.”
• Investigations handled without outside counsel are facing increased scrutiny.
o Privilege concerns.
o A “do-over” by outside counsel may not be as effective/ credible.
o Increasing government involvement in internal investigations has broad implications
for privilege, protection of individuals, and civil liability.

16. Internal Investigation: Defining the Scope
• An agreement regarding scope of an internal investigation should be reached between
client and counsel at outset.
• In event of government investigation, scope is essentially predetermined (i.e., it will mirror
the government investigation).
• In the absence of a government investigation, counsel and management should explicitly
define the parameters of the investigation in order to protect it from unwanted disclosure.

17. Hallmarks of an Effective Internal Investigation
An effective internal investigation:
• identifies the conduct at issue and the involved participants,
• quickly stops any offending activity,
• memorializes the company’s response to the issue,
• and provides sufficient information for the company to determine the scope of any
problems and if disclosure to law enforcement or regulatory officials may be beneficial.

18. Investigator’s Focus
• Government investigators’ focus on gatekeepers (board members, compliance officers,
senior legal counsel)
• Private company enforcement
• Internal controls failures allowing financial statement fraud, corruption, asset
misappropriation.
• Individuals: 2015 Yates Memorandum highlights DOJ focus on prosecuting individuals
• To obtain cooperation credit, companies must provide information about individual
wrongdoers
• Whistleblowing and Employee Protection

19. Impact of White Collar Investigations and
Prosecutions
• Operational disruptions
• Reputational harm
• Stock price impacts
• Derivative lawsuits
• Empowering activist shareholders and increasing pressure on management and board
• Proxy contests
• Moral panic leading to legislative changes

20. Attorney-Client Privilege and Work Product Doctrine
Differences between privilege and work-product:
• “The purpose of the attorney-client privilege is to encourage full disclosure of information
between a lawyer and his client by guarantying the inviolability of their confidential
communications.
• “The ‘work product of the attorney,’ on the other hand, is accorded protection for the
purpose of preserving our adversary system by assuring a lawyer that his private files
shall, except in unusual circumstances, remain free form the encroachments of opposing
counsel.”
See Scourtes v. Fred W. Albrecht Grocery Co., 15 F.R.D. 55, 58 (N.D. Ohio 1953).

21. Attorney-Client Privilege and Corporate
Investigations – Who?
• A lawyer representing a corporation represents the corporate entity. See, e.g., Tuttle v.
Combined Insurance Co., 222 F.R.D. 424, 429 (E.D. Cal. 2004).
• The privilege applies to a corporation’s in-house counsel, as well as agents and
immediate subordinates working under direct supervision and control of the lawyer. See,
e.g., In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758 (D.C.Cir. 2014).

22. Attorney-Client Privilege and Corporate
Investigations – What?
• The privilege protects communications; not underlying facts. See, e.g., Upjohn Co. v.
United States, 449 U.S. 383, 395-96 (1981).
• The privilege protects communications made in confidence; not, for example,
communications made in the presence of a third-party that is not part of the attorney-
client relationship. See, e.g., Johnson v. United States, 542 F.2d 941, 942 (5th Cir.
1976).

23. Attorney-Client Privilege and Corporate
Investigations – What? (cont’d)
• For communication to be privileged, it must have been made for the purpose of providing
legal advice.
• Tougher question when an investigation addresses legal and business concerns. D.C.
Circuit and Second Circuit have employed a “primary” or “predominant” purpose test.
See In re Kellogg Brown, 756 F.3d at 759; In re Cnty. of Erie, 473 F.3d 413, 420 (2d Cir.
2007).

24. Attorney-Client Privilege and Corporate
Investigations – What? (cont’d)
• Recent cases regarding the “primary” or “predominant” purpose test indicate the
threshold is not as high as it first appears.
• The Court in In re Kellogg Brown held that, “[i]n the context of an organization's internal
investigation, if one of the significant purposes of the internal investigation was to obtain
or provide legal advice, the privilege will apply.” 756 F.3d 754 (D.C. Cir. 2014); see also
In re Gen. Motors LLC Ignition Switch Litig., 80 F.Supp. 3d 521, 530 (S.D.N.Y. 2015)
(requiring only that the provision of legal advice was “a primary purpose” of the
investigation and communications).

25. Avoiding Waiver of the Privilege
• Identify and memorialize the purposes of the investigation to help ensure the purpose is
primarily “legal” from the outset.
• Ensure counsel, whether outside or in-house, is involved at all stages of the investigation,
particularly where non-attorneys or investigators are performing investigative work.
• See Jason Canales and Christina I. Calvar, Keeping Up With Upjohn: Preserving
Attorney-Client Privilege in Corporate Internal Investigations, NYSBA Journal, 14-15
(February 2016).

26. Avoiding Waiver of the Privilege (cont’d)
• Employing the appropriate measures during interviews of company employees is also
essential to maintaining the Attorney-Client Privilege, beginning with providing the
appropriate Upjohn warning.

27. The Upjohn Warning
• =Information that counsel should share with client to protect the attorney-client privilege
• At the outset of an interview, provide a full Upjohn warning and memorialize it.
• Note: Providing a watered-down warning may not be sufficient to establish the
privilege. See Lee G. Dunst, Esq. and Daniel J. Chirlin, Esq., A Renewed Emphasis
on Upjohn Warnings, Andrews Litigation Reporter, Volume 23, Issue 12 (September
2009).

28. The Upjohn Warning (cont’d)
According to In re Kellogg Brown, there are no “magic words” required for a company to gain
the benefit of the privilege for an internal investigation.
ABA’s proposed model Upjohn warning:
1) Explain that the lawyer represents the company, not the individual employee;
2) Explain that the purpose of the interview is to obtain facts necessary to provide legal
advice to the company;
3) Explain that the interview is subject to the attorney-client privilege, but the privilege
belongs only to the company and the company therefore has sole discretion to waive the
privilege without consulting with the employee;

29. The Upjohn Warning (cont’d)
4) The employee should not discuss the substance of the interview with anyone, including
coworkers or supervisors;
5) Obtain verbal consent that the witness understands the warnings, and ask the witness
if he or she has any questions;
6) Then, memorialize the provision of the warnings and the employee’s affirmative
understanding of them.
Source:
See Barry F. McNeil & Brad D. Brian, eds., American Bar Ass’n, Internal Corporate
Investigations, 103-07 (2007); see also ABA WCCC Working Group, Upjohn Warnings:
Recommended Best Practices When Corporate Counsel Interacts with Corporate Employees
(October 5, 2009), available at:
https://www.eli.org/sites/default/files/docs/books/envirocrimes2d/app%2020.pdf.

30. Preventing Litigation and Creating Defenses
• Create and implement corporate governance policies reflecting best practices.
• Be proactive: foster a culture of accountability and working with directors and officers to
understand and enforce company policies.
• Manage internal audit and compliance functions in the moment.
• Improve the Board’s relationship with management.
• Maintain good corporate recordkeeping.
• Keep outside advisors effectively informed.

31. About the Faculty
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32. About The Faculty
Jason W. Rubin- JRubin@gmrlawfirm.com
Jason W. Rubin, a Goldberg, Miller & Rubin partner, concentrates his practice in products liability
and toxic torts and has managed the firm’s well-regarded mass tort department for two decades.
Jason represents several clients in their toxic tort matters filed in Pennsylvania, New Jersey, and
New York and has tried several cases to verdict. His success has been recognized by Thomas
Reuters which has designated him a Super Lawyer in products liability every year since 2016.
Jason devotes a portion of his practice to mediation, arbitration, and pro bono service. He regularly
serves as a Judge Pro Tempore for the Philadelphia Court of Common Pleas Civil Trial Division
and volunteers with the Philadelphia Bar’s Fee Dispute Program as well.
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33. About The Faculty
Matthew “Matt” Beck – mbeck@csglaw.com
Matt Beck, an accomplished trial attorney, is the Chair of CSG’s Government & Corporate Investigations
Group and Co-Chair of the Litigation Group. His practice focuses on white collar criminal defense, internal
corporate investigations, and complex civil litigation. While Matt is always ready to take a case to verdict,
he has been described as a “problem solver” who is willing and able to find creative solutions to his
clients’ issues.
Before joining the firm, Matt served as an Assistant United States Attorney in the United States Attorney’s
Office for the District of New Jersey where he held various positions, including Chief of the General
Crimes Unit. While at the U.S. Attorney’s Office, Matt investigated and prosecuted a number of significant
white collar cases, including cases involving securities fraud, corporate and bank fraud, mail and wire
fraud, Foreign Corrupt Practices Act (FCPA) violations, cybercrime, identity theft, tax fraud, money
laundering and obstruction of justice.
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34. About The Faculty
Derek Cohen – derek.cohen@wmhlaw.com
Derek is a partner at Walden Macht & Haran where he regularly represents U.S. and foreign
companies and individuals in a wide range of criminal and regulatory investigations by
federal, state and local authorities, including, among others, allegations of healthcare fraud,
securities fraud, tax fraud, bribery, False Claims Act, sanctions/export violations and Foreign
Corrupt Practices Act (FCPA) violations. He also has significant experience in complex
commercial litigation matters and internal investigations. Derek is a former Deputy Chief of
the Fraud Section at the U.S. Department of Justice, an Assistant U.S. Attorney in
Philadelphia and an Assistant District Attorney in Manhattan. Derek is widely recognized as a
leading white collar criminal defense lawyer by a number of legal publications, including
Chambers USA: America’s Leading Lawyers for Business Benchmark Litigation and Best
Lawyers.
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35. About The Faculty
Peter Katz – peter@pkatzlegal.com
Peter Katz, Founding Partner of Law Offices of Peter Katz, LLC, has handled thousands of cases and brought to trial
over 50 federal and state cases as a Federal and New York prosecutor and as a defense attorney. Peter concentrates
his legal practice in three distinct areas. First and foremost, Peter handles all types of Federal, New York, and New
Jersey White Collar Criminal Defense. Peter has significant experience in healthcare and other financial fraud
including securities, bank, mortgage, wire and mail fraud. Peter often also represents witnesses and victims of white-
collar fraud. Second, Peter’s civil practice focuses on representing whistleblowers related to all types of government
fraud and workplace retaliation, with particular attention in the health care and financial industries. Third, in addition to
Peter’s criminal defense and qui tam concentrations, Peter frequently offers expert counseling regarding fraud and
abuse matters, as well as assisting companies in developing and deploying corporate compliance programs and
codes of conduct, monitoring business practices for compliance with legal and ethical integrity requirements and
conducting internal investigations stemming from fraud and corruption allegations.
Outside of the courtroom, Peter has been an adjunct professor at Rutgers University School of Law and Rider
University, teaching Healthcare Fraud and Abuse, Rights of the Accused, and Criminal Justice Practice.
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36. About The Faculty
Jessica Natali – natalij@gtlaw.com
Jessica Natali is a white collar criminal defense attorney and former Assistant U.S. Attorney for the Eastern
District of Pennsylvania. She has deep experience both prosecuting and defending a wide range of criminal and
civil cases, particularly health care fraud and opioid cases involving doctors, pharmacists, and health care
entities. Jessica also specializes in federal and state grand jury investigations. Jessica has handled matters
involving health care fraud, Medicare/Medicaid fraud, financial services fraud, public corruption, election and
campaign fraud, mail fraud, wire fraud, mortgage fraud, tax fraud, securities fraud, national security cases
involving IEEPA, immigration fraud, government contracting fraud, bankruptcy fraud, and money laundering, as
well as assorted violent crime matters. She represents corporations and individuals in federal and state criminal
cases, complex white-collar defense matters, internal investigations, as well as civil litigation and investigations
involving the defense of qui tam/False Claims Act complaints and products liability cases. Jessica also assists
clients to build and implement compliance policies and procedures consistent with the elements of an effective
compliance program under DOJ guidelines.
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37. Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
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39. About Financial Poise
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