ABA asks SEC to Modify Seaboard Report and Protect Against Coerced Privilege Waiver

ABA President Karen Mathis wrote SEC Commissioner Cox today, calling for modification of the agency’s policy of treating privilege waivers and employee indemnities as relevant to measuring an organization’s cooperation in a pending investigation. The ABA letter includes an attachment with suggested revisions to the so-called Seaboard Report.

Here is an excerpt from the letter:

“The Revised Commission Statement enclosed herewith would accomplish these objectives by: (1) preventing Commission staff from seeking privilege waiver during investigations; (2) preserving their ability to request important factual information from companies as a sign of cooperation without implicating broader privilege waiver concerns; (3) clarifying that a waiver of privilege should not be considered when assessing whether the company provided effective cooperation, and (4) recognizing that cooperation credit can be given for providing factual information. The Revised Commission Statement also would clarify that while Commission staff may consider a company’s reasonable efforts to secure its employees’ cooperation as a factor in determining whether the company has fully cooperated during an investigation, the company should not be asked or expected to punish any employee who chooses to assert his or her legal rights.”

Here is a full copy of the Mathis Letter to SEC dated February 5, 2007

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