Litigation and Investigations

The PCGC team represents public company clients before state and federal trial courts, governmental agencies and national and international arbitration panels throughout the Carolinas, the United States and the world.

Investigations and Agency Enforcement
We regularly defend companies in connection with a variety of criminal allegations and investigations.  We also assist clients with

  • compliance initiatives or internal investigations related to SEC reporting
  • U.S. banking laws and regulations
  • health care fraud (Stark and anti-kickback)
  • export control laws
  • anti-corruption laws
  • the False Claims Act

Litigation
In the commercial litigation context, the PCGC team represents public companies in contract disputes, financial services and securities litigation, trade secret litigation and product liability defense, including leading large e-discovery projects.


Team Leaders


Eric H. Cottrell

Eric Cottrell represents public companies in shareholder litigation, securities-related litigation, commercial contract disputes, financial services and securities litigation, trade secret litigation and product liability defense.

Eric has been chosen as one of Woodward/White’s Best Lawyers in America in Arbitration since 2012 and in Commercial Litigation since 2013.

 

Brian S. Cromwell

Brian Cromwell counsels clients on white collar criminal defense, internal investigations and SEC enforcement issues. Prior to entering private practice, Mr. Cromwell was both a state and federal prosecutor, first as an Assistant District Attorney for Mecklenburg County, North Carolina, then later as an Assistant United States Attorney for the Department of Justice, Western District of North Carolina.

Brian has been chosen as one of Woodward/White’s Best Lawyers in America in Criminal Defense: White-Collar law since 2010.

 


Recent Articles


Beefing Up Director Compensation Disclosures

With calendar year companies currently in the midst of drafting their proxy statements, it is time to consider the often overlooked director compensation disclosures. Changes in director compensation arrangements. Director compensation continues to increase in amount and complexity as companies strive to keep up with directors’ increasingly burdensome duties. For example, boards are now taking a more active role in overseeing risk management, which is particularly challenging in this era of unrelenting cyber intrusions. And the role of the compensation committee continues to expand as executive compensation becomes even more highly regulated by the recent spate of SEC rulemaking. Companies have responded with variations on, and additions to, the traditional arrangement: cash retainer and meeting fees. It is now common to see equity awards of various descriptions, deferred fee arrangements, fee differentials between committees and between regular members and chairpersons, and minimum stock ownership requirements, just to name a few alternatives. These changes warrant careful and thorough disclosure regarding the reasons for the changes, how the new arrangements work and how they mesh with the company’s overall policies and goals. The Calma decision. In addition, it is now common knowledge that in 2015 the Delaware Court of Chancery held in Calma v. Templeton that the decision by the Citrix Systems, Inc. board of directors to grant equity compensation to its non-employee directors was subject to the entire fairness standard of review, rather than the lesser business judgment rule. At issue was the Citrix board’s compensation committee grant of restricted stock units to the non-employee directors under its equity incentive plan, which covered several classes of participants, including non-employee directors,...  Read More

New DOJ Corporate Prosecution Guidelines

On September 9, 2015, United States Deputy Attorney General Sally Yates released a memorandum titled “Individual Accountability for Corporate Wrongdoing,” the latest in a series of corporate prosecution guidelines written by Deputy Attorney Generals dating back to what is commonly – and informally – referred to as the “Holder Memo” in 1999.  The guidelines in the “Yates Memo” are not binding, but rather direct United States Department of Justice (“DOJ”)  attorneys on the appropriate manner in which to conduct corporate fraud investigations, charging decisions and strategic considerations when implementing established DOJ policies. Background of DOJ Memos The Deputy Attorney General memos have evolved, starting with the Holder Memo’s evolution to the Thompson Memo in 2003, which focused on factors a DOJ prosecutor must evaluate when determining whether or not to charge a corporation.  These factors included a corporation’s history of violations, whether the corporation voluntary disclosed its wrongdoing, and the effectiveness of the corporation’s existing compliance plans, among others. Following a storm of controversy surrounding the Thompson Memo, then Deputy Attorney General Paul McNulty issued his memo in 2006.  The polemic response to the Thompson Memo arose from the document’s corporate cooperation credit requirements which obliged companies to produce materials from their internal investigations, deny indemnification of legal fees for employees who were targets of investigation and most importantly, waive the sacrosanct attorney-client privilege. The McNulty Memo policies, in essence, still encouraged the waiver of attorney-client privilege to expedite government investigations and required companies to provide full disclosure of facts related to wrongdoing, but softened the DOJ’s stance on indemnification.  Many outside the DOJ, including former DOJ officials and...  Read More

Good News for Compensation Committees

With executive compensation under fire from seemingly all directions these days, it’s nice to get some good news occasionally. In this case, that news comes via the Delaware Chancery Court’s recent decision in Friedman v. Dolan, which confirmed the application of the business judgment rule (rather than the “entire fairness” standard) to the actions of an independent compensation committee of a controlled public company. The Dolan decision… In Dolan, a stockholder of Cablevision System Corp. had alleged that both the CEO and Chairman (each a member of the Dolan family) had received excessive compensation that had been approved by the compensation committee. The plaintiff noted that the Dolan family accounted for ten of the sixteen board members, held more than 70% of Cablevision’s voting power and voted as a bloc pursuant to a voting agreement. In addition, the CEO had consulted with the compensation committee regarding the compensation in question. The complaint alleged that the compensation committee and certain members of management had breached their fiduciary duties by awarding and accepting the challenged compensation. Furthermore, the plaintiff asserted that the entire fairness standard of review (rather than the typical business judgment rule) should apply to those actions because the CEO and Chairman controlled the board of directors. The court determined that the compensation committee was, in fact, independent and rejected the plaintiff’s claim. In doing so, the court stated its reluctance to “endorse the principle that every controlled company, regardless of use of an independent committee, must demonstrate the entire fairness of its executive compensation in court whenever questioned by a shareholder.” The court further held that: “Delaware courts...  Read More
Representative Projects
  • Represented officers and directors during SEC investigation of possible securities and accounting violations
  • Represented senior banking officials during a federal grand jury investigation
  • Served as defense counsel in  major health care fraud investigations
  • Represented a health care products company suspected of improper billing, marketing and sales practices in a federal criminal investigation
  • Represented a major laboratory facing parallel state and federal investigations
  • Advised clients in Foreign Corrupt Practices Act investigations and import-export practices
  • Represented a FORTUNE 500 client in a private federal grand jury investigation
  • Served as counsel in federal court to a court-appointed receiver managing an SEC-related matter
  • Served as antitrust counsel to a FORTUNE 500 company
  • Represented a major manufacturer victimized by a key competitor’s criminal conduct
  • Represented a hospital and doctors targeted by federal and state agencies for alleged criminal, civil and regulatory violations
  • Served as counsel of a major health care provider facing federal allegations of fraud
  • Represented a global manufacturer in a consummated merger trial before the Federal Trade Commission and on appeal to the full Commission
  • Represented a Fortune 150 corporation in multi-million dollar arbitration proceeding
  • Represented a financial institution in the Enron securities litigation
  • Represented a top manufacturer of construction equipment in a multimillion dollar dispute with first-tier supplier
  • Served as Discovery Counsel for a Fortune 100 company coordinating responses to multiple regulatory investigations and shareholder lawsuits
  • Advise companies in assessing export and anti-corruption risk and developing cost-effective compliance plans