Attorney Alerts are designed to assist both in-house and outside counsel in tackling today’s legal and business issues. These monthly e-mail communications from Deloitte Financial Advisory Services LLP (Deloitte FAS) highlight articles and papers on topical issues.

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Highlights from past Alerts:

The ABCs of Litigation Document Review (September 2008)
Imagine that you’re building a road and you come up against a mountain. Whether you drill through the mountain or build around it depends on what tools you have at your disposal. The same holds true when sorting through the mountains of paperwork a company is required to produce for litigation or an investigation. Failure to know what tools are available and when to use them can expose a company to substantial sanctions even before the company gets its day in court. There’s more than one way to build a road, but you’d better be sure it gets to the destination you want. Learn more about the document review process by listening to the podcast.

How to Manage Electronic Data Before Litigation (August 2008)
How can companies plan ahead for unforeseen litigation or a government investigation that might be looming in the future, especially when they’re busy handling the day-by-day responsibilities of running a business? For companies that are increasingly dependent on electronic communication to conduct their business and store data, the prospect of an investigation or a court battle requires urgent action. That’s why they need to adopt a Litigation Readiness program before it’s too late. What used to be only a mountain of paperwork has now morphed into a tsunami of e-mails and bytes of data. Learn more by downloading the podcast: “Searching for the Silver e-Bullet: How to Manage Electronic Data Before Litigation.”

M&A Lies (and Why They're Sometimes True) (July 2008)
Deals, such as mergers, stock swaps or spin-offs (to name a few), have always been an important part of business. Acquisitions are a fast way to expand, and divestitures can free up cash (and time), allowing companies to focus on what matters most. Why then do many deals — more than half, according to studies — fail to deliver their expected value? This booklet, written by Deloitte’s Mergers and Acquisitions Services practice, takes a hard look at ways companies approach transactions today, and teaches us that some things that sound totally outrageous can turn out to be true, and others that seem like sure bets can be wrong. Access the booklet.

Strategic Discovery: Taking Steps to Avoid Litigation's Black Hole (June 2008)
Conflict in business is inevitable. A certain amount of business litigation is to be expected. But most of the messy, contentious part of litigation happens long before the parties enter the courtroom for a trial. Pretrial discovery continues to absorb the vast majority of the time and energy that both attorneys and business people spend in the litigation context. In this summary of a recent Deloitte Dbriefs Webcast, the participants explored the “discovery continuum,” from readiness to production. They looked at emerging problems, issues and trends in pretrial discovery, particularly as affected by the explosion of electronic files. Acknowledging these trends could help you avoid being sucked into litigation’s “black hole.” Access the paper.

Intellectual Property Infringement in Emerging Markets: Weighing the Risks and Managing the Implications (May 2008)
Until recently, international intellectual property (IP) protection was an issue many executives only read about in the Wall Street Journal or experienced firsthand in foreign cities, where legions of vendors sell cheap counterfeit DVDs. But according to Intellectual Property Today’s April cover story, that is changing rapidly, thanks to the convergence of two trends. On the one hand, IP is more important than ever to the economies of the developed world. At the same time, more and more companies of all sizes are discovering that to succeed they must expand their business into emerging markets. The intersection of these two trends not only poses risks for these companies but also presents important opportunities to those that find ways to manage the many issues associated with intellectual asset management in emerging markets, including IP infringement. Read the article. 

Linguistic Deception Theory: Is the World of e-Discovery Ready? (April 2008)
Recent academic research has shown that applying linguistic cues of deception to e-discovery analyses may help identify situations where e-mail authors are writing deceptively or avoiding certain words to evade suspicion. Yet researchers have generally been limited to using historical e-mails or artificial data sets developed specifically for the research. Can computer applications automate the detection of e-mails likely to be deceptive? Taking the next steps will require new research using “real-life” e-mails. Read the article. 

Valuation in Emerging Markets: Check Your Assumptions at the Border (March 2008)
Fueled by industry consolidation, a wave of private equity investment, an imperative to expand market share worldwide and a need to make the most of low-cost manufacturing and services, U.S. companies are undertaking mergers and acquisitions (M&A) abroad as never before. Increasingly, this M&A activity is taking place in emerging markets. A key consideration for decision makers is the valuation implications of the transaction. Valuation complexities may quickly overwhelm executives, particularly as they realize the rules and methodologies used in established economies do not always apply. Read how valuations in emerging markets require a different approach, one that emphasizes flexibility and resourcefulness, and some suggestions for improving the process, especially with respect to intangible asset valuation. Read the article. 

How to Protect Against Smurfing (February 2008)
Smurfing, the process of money being broken down into small cash amounts to evade bank controls, and its more recent variation, micro-smurfing, has been one of the most common ways that money launderers, most often working on behalf of drug organizations, have laundered the proceeds of criminal activity. Despite advances in transaction monitoring technology, smurfing schemes are still making headlines. Learn more about the practice of smurfing and the ways banks continue to try to detect and prevent it. Read the article. 

Fraud Control: Improving Detection and Prevention (January 2008)
Complex global business fraud and corruption are among the greatest threats facing capital markets, domestic and global corporations, and emerging and mature economies. Many companies have become more focused on preventing and detecting fraud over the last several years, but in the absence of detailed standards for fraud controls, diversity of practices has increased. In addition, according to a new Deloitte Forensic Center (DFC) survey, "Ten Things About Fraud Control: How Executives View the Fraud Control Gap," there is room for improvement even among the most effective companies. View the Executive Summary. 

Government Investigations: Cooperation Without Surrender (December 2007) 
In this white paper, Kerry Francis and Howard Scheck from Deloitte FAS, and a partner from Irell & Manella LLP, discuss how just a few years ago, company management could reasonably assume that if it were contacted about an inquiry or investigation by the Securities and Exchange Commission (SEC), that agency would be the only regulatory entity involved. Today the reality is that when the SEC shows up, it is likely quietly partnering with other agencies, including the Department of Justice through its regional U.S. Attorney’s Offices. What are the realistic threats a company faces when the government comes knocking and what steps can companies take in the event of a regulatory inquiry to avoid some of the chaos that comes with crisis management? Read the full white paper. 

Active Deal Market Elevates Due Diligence from Defensive Necessity to Offensive Weapon (November 2007)
In this white paper, Chris Ruggeri and Sara Elinson from Deloitte FAS, along with an attorney from Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates, address how new and innovative deal strategies are driving efforts to help buyers sharpen their edge in an extraordinarily competitive mergers and acquisitions (M&A) environment. One “workhorse” element of successful deal making that has adapted well to the changing times is effective — and enhanced — due diligence. In short, thorough due diligence is more important than ever. “Back of the envelope” solutions to perceived issues just won’t work anymore. Greater agility in the face of increased competition and deal velocity demands a new diligence paradigm. Read the full white paper.  

Mapping the Hot Spots: Guide to Detecting Future Fraud (October 2007)
The September 2007 Corporate Counsel magazine reviewed the “Ten Things About Financial Statement Fraud” study developed by the DFC and spoke with DFC Codirector Toby Bishop about how general counsel may use the study as a useful guide for detecting future fraud. Read the full article, posted with permission from Corporate Counsel.

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