Wednesday, March 31, 2010

In the News & Around the Blogosphere

Upcoming Conferences

ABA, Internal Corporate Investigations and Forum for In-House Counsel 2010, May 5-7, 2010 Washington, D.C.  here

Strafford CLE - Foreign Corrupt Practices Act Compliance in Joint Ventures and Consortia, Wed. April 21 1-2:30 p.m. here

19th Annual National Seminar on the Federal Sentencing Guidelines (Tampa Bay Federal Bar & NACDL), May 12-14, St Petersburg, Florida - program - Download 100127 2010 guidelines book

ABA 20th Annual National Institute on Health Care Fraud here

(esp)

March 31, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Daimler Deferred Prosecution, Monitor, and More

Sunday, March 28, 2010

In the News & Around the Blogosphere

Upcoming Program - ABA Section of Litigation

Criminal Litigation Committee of the ABA's Section of Litigation has several upcoming programs, April 21-23, 2010, at the New York Hilton, See here for details. The programs are:

(1) Ethical Pitfalls - What Every Civil Practitioner Needs to Know About Criminal Issues in Civil Litigation

Date: Thursday, April 22, 2010

Time: 4:00 – 5:15 PM

Our panel of experts will discuss key issues that civil practitioners should be familiar with when faced with parallel civil and criminal proceedings against corporations, executives, or individuals. Many civil practitioners assume that the engagement process, conflicts, joint defense agreements and internal investigations can be done the same way in a criminal investigation as in a civil investigation-- but they cannot. Don't fall prey to these common traps! This program is a must for any civil litigator whose clients may face investigation or indictment in a criminal matter. Our panel will include:

The Honorable Cormac J. Carney, U.S. District Court Judge for the Central District of California

Prof. Bruce A. Green, the Chair-Elect of the ABA Criminal Justice Section

Jane W. Moscowitz, Moscowitz & Moscowitz PA

James W. Cooper, Arnold & Porter

Stacey F. Gottlieb, Greenberg Traurig LLP

(2) Conducting Internal Investigations and Making Voluntary Disclosures: Is it Worth the Risk?

Date: Thurs, April 22, 2010

Time: 1:00-2:15 PM

Corporations have long undertaken their own internal investigations for purposes of getting an internal handle on potential exposure with respect to government inquiries and related compliance issues. Our panel of experts will provide in-house and outside counsel perspectives on the do's and don'ts of internal investigations, the risks and benefits associated with voluntarily disclosing the existence and results of internal investigations and the ethical issues involved. Our experienced panel will include:

Michele Roberts, Akin Gump

Eric Grossman, General Counsel Morgan Stanley

Faith Gay, Quinn Emmanuel

Joathan Polkes, Weil Gotshal

Moderated by Matthew Mustokoff, Barroway Topaz

(3) Arguing Crime/Fraud and Other Exceptions to Privilege: An Expert Demonstration

(co-sponsored by the ABA's Trial Practice Committee)

Date: Friday, April 23, 2010

Time: 4:00-5:15 PM

Assertions of privilege in litigation are not always justified or insurmountable. Using multimedia presentations, live expert demonstrations, judicial commentary and audience participation, this program will show you how to develop and present winning arguments for application of the crime/fraud and other exceptions to privilege.

Amy Jane Longo O’Melveny & Myers

Bruce Green, Fordham University School of Law

The Honorable Stephen C. Robinson (S.D.N.Y.)

Moderated by Lawrence Rosenberg, Jones Day

(esp)

March 28, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Vanderbilt Law Review En Banc Roundtable on Skilling

Monday, March 22, 2010

The Extraterritoriality of RICO

It's an interesting question presented in a cert petition filed in the Supreme Court. It's especially problematic when Congress fails to address the extraterritorial reach of a statute. Some courts look to international principles and use an "effects" test.  But in this day and age, what doesn't affect the US?  I have written articles on the extraterritorial prosecution of white collar crimes (here), computer crimes (here), and business crimes ("Defensive Territoriality": A New Paradigm for the Prosecution of Extraterritorial Business Crimes, 31 Georgia Journal International & Comparative Law 1 (2003)),

See British American Tobacco (Investments) Limited v. U.S. - Download BATCo Cert Petition and Appendix

(esp) 

March 22, 2010 in RICO, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

White Collar Criminals in Prison

The sentences that white collar offenders receive are getting higher.  Charles Ponzi received five years for the scheme that serves as the name for later Ponzi schemes.  Bernie Madoff, convicted of one of these later schemes received 150 years. The higher sentence has triggered a more secure prison facility and Bernie Madoff was placed in a medium security prison.  Dionne Searcey and Amir Efrati of the Wall Street Journal have an article titled "Madoff Beaten in Prison - Ponzi Schemer Was Assaulted by Another Inmate in December; Officials Deny Incident." Perhaps some victims of Madoff are elated to hear about an assault on Madoff, and are perhaps saying - he deserved it. And certainly we don't know whether there is truth to this reported incident.  But irrespective of this, it does present an interesting issue. Should the sentence length govern the prison location to the extent that a non-violent offender is placed in a medium security prison? 

Attorney Alan Ellis, an expert in this area notes:

"The BOP has a security designation  factor called :PUBLIC  SAFETY FACTORS (PSFs) . One is SENTENCE LENGTH. If an inmate has more than 10 years to serve, he is ineligible for a camp (MINIMUM);  more than 20 years -to serve - ineligible for a LOW; more than 30 to serve -ineligible for MEDIUM. When the inmate reaches this time left to be served point, he can be transferred the next lowest facility. This PSF can be waived on over ridden "trumped" by a Management Variable  called LESSER SECURITY. This is what allowed Madoff to be designated to FCI Butner on his 150 sentence rather than a HIGH - U.S. Penitentiary The same might be applied for a youthful first offender who gets a long sentence , e.g. a 19 year old bank robber who gets a 20+ year sentence."

As we move to more individualized sentencing in a post-Booker world, perhaps we also need to move to more individualized prison placements. After all do we really want to spend dollars on placing a white collar offender in a prison facility that requires more security than needed to keep the individual there.

(esp)(blogging from New York)

March 21, 2010 in Sentencing | Permalink | Comments (4) | TrackBack (0)

Saturday, March 20, 2010

In the News & Around the Blogosphere

Friday, March 19, 2010

Wachovia Bank Deferred Prosecution Agreement

The Wachovia Bank deferred prosecution agreement can be found  here. One finds the usual high fine ( $50,000,000 in this case), that is seen in many deferred prosecution agreements. Wells Fargo is said to have "repaid any and all funds that it received through" TARP. But Wachovia also has a forfeiture amount to pay and the agreed amount is $110,000,000. One also finds usual provisions on cooperation, and that a breach of the agreement rests with the government.  The agreement states "[t]he parties further understand and agree that the United States' exercise of reasonable discretion under this paragraph is not subject to review in any court or tribunal."  But what is missing from this agreement that is seen in many agreements is the appointment of a compliance monitor. 

(esp)

March 19, 2010 in Deferred Prosecution Agreements | Permalink | Comments (0) | TrackBack (0)

Criminal Defense Counsel - Business Should Be Picking Up

According to the latest figures, white collar prosecutions are up.  The December 2009 figures of Trac Reports here  shows a 9.2 increase from last month and a 19.9 increase from 5 years ago including magistrate court and 1.8 increase excluding magistrate court. But again, these statistics need to be examined carefully. (see here and here), especially with regard to how the term "white collar crime" is defined.

(esp) (w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports). 

March 19, 2010 in Defense Counsel, Think Tank Reports | Permalink | Comments (1) | TrackBack (0)

Thursday, March 18, 2010

Innospec - FCPA Plea - But Hats Off to Hon. Ellen Segal Huvelle

The DOJ reports that "Innospec Inc., a Delaware corporation, pleaded guilty today to defrauding the United Nations (UN), to violating the Foreign Corrupt Practices Act (FCPA) and to violating the U.S. embargo against Cuba."  The plea was to a "12-count information charging wire fraud in connection with Innospec’s payment of kickbacks to the former Iraqi government under the UN Oil for Food Program (OFFP), as well as FCPA violations in connection with bribe payments it made to officials in the Iraqi Ministry of Oil. Innospec also admitted to selling chemicals to Cuban power plants, in violation of the U.S. embargo against Cuba." The company agreed to pay $14.1 million and to retain an independent compliance monitor. It is interesting to see that the British subsidiary also plead guilty today in London and Innopec Ltd "will pay a criminal penalty of $12.7 million."  It is also interesting to see the international cooperation in securing this result.

Innospec has a "Foreign Corrupt Practices Act Policy" online that is dated February 2010.  

But Christopher Matthews. Main Justice, has an interesting story titled, Judge Blasts Compliance Monitors at Innospec Plea Hearing.

Many cases have deferred prosecution or non-prosecution agreements that allow the DOJ to oversee much of what happens, putting the companies at a disadvantage (see here).  But it is nice to see, here, in this plea agreement that the judiciary is questioning the costs of compliance monitors.

See also The FCPA Blog here

(esp)

March 18, 2010 in FCPA | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Wednesday, March 17, 2010

In the News & Around the Blogosphere

Mario F. Cattabiani, Philadelphia Inquirer, Jury begins deliberations in Pa. corruption case

Lanny Davis and Eileen O'Connor, Legal Crisis Strategies (McDermott, Will & Emery), The Need for Lawyers to Learn the Ground Rules of Talking to Reporters

(esp)

March 17, 2010 in News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 16, 2010

In the News & Around the Blogosphere

Monday, March 15, 2010

"The Twilight of the Pardon Power"

The title of this post is the title of this article from former US Pardon Attorney Margaret Colgate Love now available via SSRN.  Here is the abstract:

Throughout our nation’s history, the president’s pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive’s policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted.  The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction.  It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only token use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded President Obama’s, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. Much responsibility for the desuetude and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which during the past two administrations failed in its responsibilities as steward of the power, exposing the president to embarrassment and the power to abuse.  To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been “drained of its moral force.”

Who hijacked the president’s pardon power?  Is it worth rescuing, or should it be left to die in peace? To find the answers, this article first looks at pardoning practices in the 19th and early 20th centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and after 1930 came to be used primarily to restore rights of citizenship.  It then examines the reasons for pardon’s decline in the 1980s and its collapse in the Clinton Administration.  Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.

The link to this paper is here

March 15, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Upcoming Conferences

ABA, Internal Corporate Investigations and Forum for In-House Counsel 2010, May 5-7, 2010 Washington, D.C.  here

Strafford CLE - Foreign Corrupt Practices Act Compliance in Joint Ventures and Consortia, Wed. April 21 1-2:30 p.m. here

WLF, Free Enterprise & Criminal Law: Is Today's Brand of Federal Enforcement Compromising Business Civil Liberties?, Webcast, March 17, 2010 here

19th Annual National Seminar on the Federal Sentencing Guidelines (Tampa Bay Federal Bar & NACDL), May 12-14, St Petersburg, Florida - program - Download 100127 2010 guidelines book

(esp)

March 15, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, March 14, 2010

Forget about big brother, it is time to watch out for little brother and his foreign cousins

Guest Blogger Todd Foster  (Cohen, Foster, Romine P.A.)

On 2/10/10, the Financial Crimes Enforcement Network (Fincen) announced a final rule amending the Bank Secrecy Act information sharing rules to allow certain foreign, state, and local law enforcement agencies to submit confidential requests for information to American financial institutions. [See 31 CFR 103.100]


Under the new Rule, foreign, state and local law agencies may petition Fincen to require financial institutions to disclose if they maintained an account or conducted a transaction with a person certified by that law enforcement agency to be "reasonably suspected" of engaging in terrorist or significant money laundering activities. The requesting agency must also certify that they have been unable to locate the information being sought through traditional methods of investigation. The financial institution is prohibited from disclosing Fincen's request to the client.


This means, that upon proper certification (which is not to be confused with a proffer of admissible evidence, an independent finding of probable cause or a grand jury subpoena), agencies can secretly receive account and transaction information on depositor accounts.


While the motivation for this Rule is good, the means of achieving its purpose are far too broad. Some greater standard of proof should be required before any of the multitude of qualifying agencies can receive this private information.


Even George Orwell did not see this coming.

(tf)

March 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Amicus Brief - Cert Petition: Legislative Jurisdiction/Extraterritoriality

Austin Parrish (Southwestern)  writes on Prawfsblawg -

"I wanted to begin by reaching out to law professors who might be interested in signing on to a amicus brief in support of a petition for writ of certiorari.  Max Huffman(Indiana) and I are writing an amicus brief in the case British American Tobacco v. United States. The cert. petition is part of a massive case brought by the U.S. against the tobacco companies. Various cert. petitions have been filed, including a government petition seeking recovery of a $280 billion disgorgement award.  Details about the underlying case can be found on SCOTUSblog.  

"The amicus brief that we are writing is on a narrow issue focused on how a court should interpret the geographic reach of federal law (the extraterritoriality question).  The brief is being submitted to encourage the Court to grant certiorari and review the decision of the D.C. Circuit. The brief clarifies the history and application of the effects test and shows how that history bears upon the proper interpretation of whether Congress intended a statute to reach extraterritorial conduct.  The brief does not take a position on the underlying merits: the federal government's use of RICO to prevent and restrain an alleged scheme to deceive American consumers about the health risks of smoking.

"If you are a law professor who would consider signing on to the amicus brief, please email me at [email protected], and I can send you a draft. A draft will be completed Monday, and we hope to finalize within the next week or so (it's on a tight filing deadline).  Because the effects test applies in a number of contexts (antitrust, securities, trademark, labor law, environmental law, criminal law etc.), the D.C. Circuit's decision, if left to stand, could have far-reaching implications. Legal commentators have also lamented the doctrinal incoherence in how courts approach legislative jurisdiction.  This would be a good opportunity for the Court to clarify what is now a confused area of law. More information about the case and the amicus brief is included below.

"The petitioner's cert petition implicates the question of whether RICO applies to the overseas conduct of foreign corporations.  The D.C. Circuit did not directly address whether Congress intended RICO to apply extraterritorially -- an issue on which the lower courts are divided.  Instead, it found: (1) that when domestic effects are felt in the United States, regulation of foreign conduct of a foreign corporation does not implicate extraterritorial jurisdiction; and (2) that it need not decide whether RICO applies extraterritorially so long as the foreign conduct has substantial effects in the United States.  Because the D.C. Circuit found a domestic effect, it presumed that Congress intended RICO to regulate abroad.  The case raises interesting questions about the role of the presumption against extraterritoriality and the effects test.  It implicates at least a three-way circuit split on how the courts determine legislative (prescriptive jurisdiction).

"The amicus brief attempts to show how the D.C. Circuit's opinion has added confusion to the existing circuit split.  It also suggests that the D.C. Circuit erred by disregarding the presumption against extraterritoriality.  The brief argues that the effects test sets the outer limits, under international law, of Congress's legislative jurisdiction, but does not serve as a canon of construction that overrides the presumption against extraterritoriality. The brief highlights how assuming legislation applies extraterritoriality can cause harm and undermine the meaningful development of international law.

"Max Huffman and I have previously written about these issues. Max's excellent article on the Foreign Trade Antitrust Improvements Act can be found here. I have written two pieces on international law, the effects test, and extraterritoriality.  They can be found here and here."  

March 14, 2010 in International, RICO | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere