You are an in-house lawyer at FloorMart, a multinational group of flooring companies with entities present in the UK and the US. The CEO has asked you to advise on several matters of concern to him.
In particular he wants your advice on the following:
1. He has heard about the so-called bounty provisions contained in Dodd-Frank Act 2010 and wants to understand what these could mean for FloorMart (particularly its US entities). He is concerned that no one has yet reflected upon whether FloorMart should make changes to its whistleblower policies and internal reporting procedures in light of Dodd-Frank. He asks particularly for advice on the following:
• What exactly are these bounty provisions?
• How might FloorMart encourage employees to engage in internal reporting of wrong-doing rather than give information directly to the SEC?
2. He has read something in the press recently about in-house lawyers’ advice not being covered by ‘privilege.’ He was surprised to hear this and wonders what this will mean for FloorMart. He’s heard that there are two types of privilege and is confused. He requests your clarification. He wants a clear explanation of ‘privilege’ and a summary of the relevant UK and EU case law. He is concerned that some recent arrangements entered into by a UK subsidiary (Shiny Floors UK Ltd) may have contained horizontal anti-competitive provisions and, fearing an investigation, he wants to make sure that all advice remains privileged.
Accordingly he wants advice on the following:
• What is privilege? Please give a full explanation with reference to academic opinion and relevant UK and EU case law.
• Will UK in-house legal’s advice on Shiny Floors UK Ltd’s potentially anti-competitive arrangements be covered by privilege or is it best to instruct external counsel? (Please offer advice with reference to academic opinion and all relevant UK and EU case law).
• He remembers there was some controversy over an EU decision a few years ago on the question of privilege for in-house lawyers and asks that you remind him of the nature of that decision and its relevance. Was this case correctly decided in your view? How does this decision affect your advice?
• What systems should FloorMart put in place to ensure that any privileged advice remains privileged?
The CEO has instructed you to produce an advice note or memorandum covering all the above issues. He has asked that you make reference to
academic opinion and relevant case law to support your advice and recommendations. He doesn’t want anything too long and has
stipulated that the advice should have a word-count of around 2,500 words (or within 10% of this limit)
(NB the CEO does not require any advice in relation to competition law at this stage)
13 Further Assignment Details
a) The assignment itself should be in Arial font size 11 with double line spacing to allow for the markers’ comments.
B) The required number of words is 2500 words that do not exceed the limit with respect to answer more than 10%.
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