USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
tioning by government authorities. Corporations do not have a Firth Amendment privilege. 2.7 Non-Cooperation Legally, failure to comply with a request for infor - mation or an investigative subpoena can result in the agency seeking a court order to compel compliance. If a court order is issued and the individual or firm still refuses to comply, they may be held in contempt of court, which could result in fines or imprisonment. Practically, non-cooperation can harm the indi - vidual’s or firm’s relationship with the enforce - ment agency and may lead to a more aggressive investigation and hardened agency positions. It is generally advisable for individuals and firms to co-operate with enforcement agencies to the extent required by law and to work with legal counsel to ensure that their rights are protected throughout the investigative process. 2.8 Protection of Confidential/Proprietary Information Parties are generally able to protect confiden - tial or proprietary information from disclosure to third parties under certain circumstances. For example, parties may assert claims of attorney- client privilege or work product protection to protect communications or documents from disclosure if they were created for the purpose of seeking or providing legal advice or in antici - pation of litigation. In addition, parties may seek protective orders from the court to limit the disclosure of confiden - tial proprietary information during the discovery process or in response to requests for informa - tion from the enforcement agency. However, the practical ability to shield confidential or propri - etary information from DOJ is limited because,
as a government agency, DOJ is generally not in a position to misuse such information against a company. Third parties may also seek protection for con - fidential or proprietary information, such as through confidentiality agreements or protec - tive orders. 2.9 Arguments Against Enforcement Actions Defence counsel for the target of a cartel inves - tigation may raise legal and factual arguments at various stages of the investigation, including during meetings with the enforcement agency and in some cases in written submissions. Typically, counsel representing a company sub - ject to a cartel investigation will provide multiple proffers to the DOJ, summarising the relevant evidence and ultimately framing that evidence in a light most favourable to the company. Prof - fers are generally provided orally. Written sub - missions are rare in criminal cartel matters but can be used to underscore key points or provide more comprehensive analysis of relevant legal issues. Counsel will often also make witnesses available to the DOJ for interviews as part of the advocacy process to give the DOJ an opportu - nity to hear directly from knowledgeable indi - viduals whose testimony may support a decision to forego prosecution. Companies are generally well served by early engagement with the DOJ. As a result, coun - sel should work quickly to conduct an internal investigation to understand the facts, collect key evidence, and interview key witnesses so that it can begin making proffers and advocating its client’s position on the merits with the DOJ.
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