Inside a Publication of the Corporate Counsel Section of the New York State Bar Association

NYSBA FALL 2009 | Vol. 27 | No. 2 Inside A publication of the Corporate Counsel Section of the New York State Bar Association CConalonal EEugeneugene MMurrayurray Conal Eugene Murray ber of years as one of that of Mt. Kisco, NY, died on Section’s Delegates to the May 13, 2009. He was born Association’s House of Del- on October 12, 1937 to Dr. egates, where he took an ac- and Mrs. Francis Murray tive role and organized the of New York City. He was Section Delegates Caucus. a graduate of Cardinal He chaired the Association’s Hayes High School ‘55, Committee on Continuing Harvard College ‘59, Har- Legal Education from June vard Business School ‘61, of 1998 until May of 2004, Harvard Law School ‘68 and was a member of that and NYU ‘73. He served Committee from 1985 to as a U.S. Navy Lt. supply present. He also served on offi cer from 1961 to 1965. the Association’s Committee From 1968 to 1999, he served as Assistant on Women in the Law. General Counsel for Kraft Foods, and as President of the Westchester/Fairfi eld He is survived by Betty Murray, his Corporate Counsel Association. wife of 40 years; his son, Conal Murray; his daughter, Heather Murray; grand- Mr. Murray was very active in the daughter Elisa Murray, and siblings New York State Bar Association. He Grace Carter, Frank Murray, Charles Mur- chaired the Association’s Corporate ray and Kenneth Murray. Donations in Counsel Section in 1995 and was a mem- his honor may be made to the American ber of that Section’s Executive Committee Cancer Society. from 1982 to present. He served a num- OOctoberctober 112,2, 11937937 – MMayay 113,3, 22009009 An Appreciation of Conal E. Murray October 12, 1937 – May 13, 2009 Conal Murray was one of the found- meetings of the House. Nor did Conal ing members of the Corporate Counsel limit his Bar activities to a single asso- Section, having joined it at, or very soon ciation—he was also a past President after, its beginning in 1981, served as its of the Westchester/Fairfi eld Corporate Chair in 1986, and remained an active Counsel Association. Conal’s principal and involved member of the Executive corporate legal position was with Kraft Committee up to his untimely death Foods from 1968-1999, where he served in May. He was especially active in as Assistant General Counsel. Continuing Legal Education (CLE). He Having worked with Conal in one chaired a very well received program way or another since I joined the Section on E-Discovery and E-Record Manage- in the early 80s, it was impossible for me ment for the Section’s Annual Meeting not to consider him a friend as well as a last January, this being just the latest colleague. His warm, welcoming smile in a number of programs he helped to and willing, positive attitude about produce over his long term of service to everything he did were infectious. Over our Section. He also served on the New the years I also came to know his won- York State Bar Association’s CLE Com- derful wife Betty, who survives him, as mittee, of which he recently concluded do his son Conal, his daughter Heather a term as Chair. When New York State Murray, his granddaughter Elisa Mur- instituted mandatory CLE some years ray, and four siblings. ago, Conal was the one who explained its intricacies to us so that we could all Conal, we all miss you. Thank you understand them. for all you have done. Know that it was appreciated and will be remembered, as During Conal’s recent four-year term we remember you with great fondness. as our Section’s Delegate to the NYSBA House of Delegates, fi nding that the —Thomas A. Reed delegates of the respective NYSBA Sections had no available forum Thomas A. Reed is a former Chair for discussing shared issues and con- of the Corporate Counsel Section and cerns, he initiated and served as Chair of the Section’s representative to the NY- what has become the Section Delegates SBA House of Delegates. Caucus, which now meets immediately prior to each of the regular quarterly 2 NYSBA Inside | Fall 2009 | Vol. 27 | No. 2 Message from the Chair It’s fall, and we’re all set- The second day of the Institute pairs our annual tling back into the corporate Ethics for Corporate Counsel program with break-out ses- rhythm after an extremely wet sions on developing employment issues (health care re- summer. In fact, a number of cords and privacy, among others), commercial leases, law us were beginning to wonder department cost savings and counsel management, and how we’d managed to get responding to EEOC, NYSDHR, and NYCCHR investiga- Seattle’s summer weather tions. The Institute is one of our most popular events, so if instead of our own. you haven’t registered, don’t procrastinate—registration is not limited to Section members, and can fi ll up quickly. It didn’t affect our produc- tivity, however. The Corporate The Section is also looking to Webinars and other Counsel Section has been busy technology to make our programs more accessible to these past few months. With members. We will be making offerings of this type avail- the NYSBA CLE department, able soon, and we hope that many of you will take advan- we co-sponsored a June program on Operating the Not- tage of them. for-Profi t Corporation in three locations across the state. Finally, thanks to those of you who provided feed- Over 200 lawyers attended (last-minute seating had to be back on the changes to Inside and praise for its content. added in New York City) to hear panels address topics The Section and this publication exist to serve your ranging from lobbying, crisis management, and taxation practice—if there are other features or topics you’d like to to fundraising in the context of a not-for-profi t entity. see, make your voice heard. In August we held a reception honoring interns and host companies of the Kenneth R. Standard Diversity Fawn M. Horvath Internship Program, and opened this for the fi rst time to Section members, giving them an opportunity to network with students, judges, and other members of the Bar, as well as the chance to see the concrete results of our Sec- tion’s hard work. Inside In addition, we co-sponsored the NYSBA Mem- The Corporation Under Scrutiny: bership Boat Cruise reception. Section representatives Some Do’s, Don’ts and the Ethical Grey; mingled with new and future Section members and other or Tools and Techniques to “Box Out” Sections while touring the sights of New York Harbor and Corporate Liability ...........................................................4 generally showing our sea-faring, fun-loving side. (Peter A. Crusco) We’ve also been busy putting together our second The Principles of Federal Prosecution Corporate Counsel Institute, which will be held Novem- of Business Organizations: ber 19 and 20 at the Radisson Martinique Hotel in mid- A Ten-Year Anniversary Perspective .............................8 town New York City. This year’s Institute is packed with (Beth A. Wilkinson and Alex Young K. Oh) today’s critically relevant topics—plenary panels will dis- cuss labor and employment law (with emphasis on reduc- From In-House to the Jailhouse— tions in force and the impact of labor law changes from A Career Path to Avoid ..................................................12 President Obama’s administration), corporate counseling (Alfredo F. Mendez and Danielle Elias) in the electronic age—including managing PR ramifi ca- tions, bankruptcy and creditors’ rights, brand integrity The “Nuts and Bolts” of Internal Investigations and the law in social networking media, and intellectual in Today’s Highly Charged Regulatory property. Environment ................................................................... 15 (Marvin G. Pickholz, Jonathan S. Sack, Last but not least, we will hear from Marshall Hueb- Ernest E. Badway and Jason R. Pickholz) ner of Davis Polk, lead counsel to the Federal Reserve Bank of New York and the Department of the Treasury, Third Corporate Counsel Institute ..................................19 with respect to their multi-billion-dollar fi nancing and equity stake in AIG. Editors: Janice Handler and Allison B. Tomlinson SPECIAL ISSUE: CORPORATE CRIMINAL LIABILITY NYSBA Inside | Fall 2009 | Vol. 27 | No. 2 3 The Corporation Under Scrutiny: Some Do’s, Don’ts and the Ethical Grey; or Tools and Techniques to “Box Out” Corporate Criminal Liability By Peter A. Crusco Introduction law that is followed in the majority of states. Under the “Box Out!” This terse exclamatory statement is famil- MPC, for criminal liability to lie there must be proof that iar to any veteran of the hardwood, that is, the basketball unless directed otherwise by statute, the conduct at issue court. It’s a basic concept in the game of basketball and was authorized, permitted, or “recklessly tolerated” by a simply translates to claiming the good fl oor space before “high managerial agent,” or a person whose responsibili- your adversary does, so you’re in the best position to grab ties are so high that his or her acts may fairly be assumed 5 that rebound and control the momentum of the game. to represent company policy. Under the MPC, even if The statement is also very apropos in the fi eld of corpo- a statute is directed specifi cally at a corporation, an act rate criminal liability, where the game is anticipating and is not deemed to be within the scope of employment confronting legal issues before they metamorphose into if the company exercised due diligence to prevent its 6 signifi cant challenges that may require visits to a differ- commission.

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