May 22, 2018 Articles

Is Cooperation with the Government a “Consequence-Free Event” or a Waiver?

Presentations to the SEC may waive work-product protections as to other litigation

by Alan D. Strasser

The decision in Securities & Exchange Commission v. Sandoval Herrera, No. 17‑20301-CIV, 2017 WL 6041750 (S.D. Fla. Dec. 5, 2017), illustrates a dilemma familiar to lawyers who defend companies against Department of Justice or Securities and Exchange Commission (SEC) investigations: A third party argues that the lawyers’ submissions waive the work-product protection for those submissions and related materials in later litigation. The lawyers’ effort to defend a company from a governmental adversary invites another adversary to exploit those efforts in different litigation. Sandoval Herrera shows, as the court observed, that “[v]ery few decisions are consequence-free events.”

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