Thursday, January 17, 2008
We've been collecting the briefs in the government's appeal of the dismissal of charges against the thirteen former KPMG partners and employees by U.S. District Judge Lewis Kaplan. Below is the appellee brief filed on behalf of Larry DeLap (tax partner), Steven Gremminger (associate general counsel), Carol Warley (tax partner), and Philip Wiesner (tax partner). Similar to the briefs of the other appellees in the case, they argue that the government overstepped its bounds when it pressured KPMG into not paying the attorney's fees for former employees and partners:
The essential question here is whether the government could constitutionally use the threat of indictment to prevent one of the nation’s largest accounting firms from paying the legal fees of several of its professional employees, not because there would have been anything improper about the payment of the fees but simply because it served the government’s purposes to reduce or eliminate the ability of those employees to retain independent counsel and to defend themselves. The net effect of the prosecution’s conduct was to deprive the 13 defendant-appellees of their ability to defend against their indictment in what is claimed to be the largest tax fraud prosecution in the nation’s history.
The case for these four will be argued by John S. Martin, Jr., former U.S. Attorney for the Southern District of New York (he was Rudy Giuliani's predecessor) and former U.S. District Court Judge for thirteen years before leaving the bench in 2003 to set up shop with another former U.S. Attorney, Otto Obermaier. The heavy hitters are appearing in this case, which pretty much guarantees the Second Circuit will have the best legal arguments available in deciding the case. (ph)