Advocacy

ACC roundtable with DOJ and SEC regarding FCPA compliance

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On May 24th, the Department of Justice and the Securities and Exchange Commission will be conducting an ACC-only roundtable regarding FCPA compliance and enforcement issues.  As you may know, the DOJ and the SEC plan to issue joint guidance regarding FCPA issues later this year.  This roundtable represents a great opportunity to request clarifications on issues that substantially burden the in-house bar.  Some areas ripe for clarity are ambiguous statutory terms in the Act itself, the role of compliance systems in charging decisions and the impact of duplicate prosecutions, both domestically and internationally.  But, of course, there are many more.

Which is why we’d like you at the roundtable.  It will be conducted the afternoon and evening of May 24th in Washington, D.C.  Space IS limited and we’ll be sifting through candidates to ensure geographical and industry diversity with our primary deciding consideration being significant expertise in FCPA issues.

If you are interested in attending, please email JD White at white@acc.com no later than Friday, May 4th.

Does the Attorney-Client Privilege Protect Conversations between Client Employees about Seeking Legal Advice?

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On April 13th, ACC and its New Jersey Chapter filed an amicus curiae brief in federal court, arguing that, in denying protection to an email between a group of employees about the need to seek legal advice, the district court failed to understand the modern corporate environment, particularly in the global context. In this case, an employee based in India emailed his American colleagues about a disputed contractual provision and asked that the company lawyer take a look. The district court rejected privilege protection, because the Indian employee did not email the lawyer directly. ACC’s amicus brief made clear that requiring direct contact with a lawyer ignores the reality facing corporations with far flung operations and limited legal budgets.

To view the brief please click here.

ACC and its Intellectual Property Committee Recommend Changes to Inter Partes and Post-Grant Reviews

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Today, the ACC and its Intellectual Property Committee submitted comments regarding the proposed rules of the Patent and Trademark Office  relating to the Inter Partes Review and Post-Grant Review proceedings to be implemented pursuant to the America Invents Act.  In particular, the ACC and the IP Committee recommended changes to the proposed claim construction procedures, discovery rules, and identification of the real party in interest requirement applicable to both IPR and PGR proceedings. If adopted, our changes would ensure that the PTO implements a certain and predictable process to govern patent challenges through IPR and PGR proceedings.

To view ACC’s comments please click here.

Arizona Court Protects Privilege

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In Salvation Army v. Bryson, the Arizona Court of Appeals rejected the trial court’s decision to require the organization to disclose summaries of employee interviews conducted by an investigator at the direction of in-house counsel.  Properly finding the communications to be privileged under Arizona’s statutory protection of attorney-client communications, the Arizona Court of Appeals also usefully clarified the difference between the work product doctrine and attorney-client privilege (a distinction that was not grasped as well by the parties).  The Court remanded to the trial court to determine whether interviews conducted by volunteers would deserve the same protection.

ACC will follow this case with interest, particularly to see whether it is appealed to the Arizona Supreme Court.  One caution to the unwary:  Arizona’s statutory protection for privilege may differ from that offered by the federal government and other states.  Tread carefully.

HT:  Ogletree Deakins

Indian Court Rejects Effort to Bar Foreign Lawyers

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Yesterday, the Madras High Court in Chennai rejected the petition of an Indian lawyer, A.K. Balaji, which argued that foreign lawyers were unlawfully practicing in India when they counseled their clients about non-Indian law (e.g., American, British or international law).  Balaji contended that foreign lawyers treat the practice of law as “a trade and business venture for earning money[,]” rather than for the purpose of “serv[ing] society[,]” as do their Indian brethren.  The Madras High Court disagreed with this parochialism, noting that Balaji’s proposal would “result in a manifestly absurd situation where only Indian citizens with an Indian law degree … could practice foreign law” even though such law is not generally taught in Indian law schools.  ACC submitted a petition to intervene in the Madras High Court and will participate before the Indian Supreme Court, should Balaji appeal the lower court’s decision.

Balaji v. Government of India (Madras High Court 2/21/2012)