January 23, 2010
Jack Litman - One of a Kind - 1943-2010
Jack Litman, a former and long-time member of the National Association of Criminal Defense Lawyers (NACDL) board of directors and a past president of the NYSACDL passed away Saturday. Ted Simon, Secretary of NACDL and dear friend of Jack, described him as "an incomparable lawyer, father, and friend." As a member of the law firm of Litman, Asche & Gioiella, LLP, he handled major felony cases in New York, like the defense of Robert E. Chambers Jr. He also represented individuals charged with white collar related crimes. Past NACDL President Barry Scheck, described him as a man with a
"first rate intellect, a love of art, history, and all things Fench. But perhaps most impressive of all, sometimes with gestures of kindness and loyalty unknown to many, he delivered when it counted for his friends, his clients, and the cause of liberty. Jack never buckled trying one of the most notorious murder cases in the history of New York City."
Jack was special to so many. For me he was the extraordinary lawyer with whom I could discuss arcane legal issues, talk about the art museum in Vegas or just talk about life. He was a crucial part of my NACDL family. He was one of the nicest most caring individuals one could come across in life. He will be missed, and my tears are for him. He was one of a kind.
(esp) With a special thank you to his dear friend, Ted Simon, for the photographs. See also Anemona Hartocollis, NYTimes, Jack T. Litman, Lawyer for ‘Preppy Killer’ and Others, Is Dead at 66; Talkleft here; Professor Ellen Yaroshefsky reminded me of the Ethics in America, Vol. 2: To Defend a Killer program that includes Jack Litman, Justice Scalia and others as panelists.
ABA 24th Annual National Institute on White Collar Crime, February 24-26, 2010, Miami Beach, Florida here
19th Annual National Seminar on the Federal Sentencing Guidelines Conference, May 12-14, 2010, St Petersburg, Florida here
Symposium, Brooklyn Law School, February 5, 2010, Brooklyn, N.Y., Sharing the Blame: The Law and Morality of Punishing Collective Entities -Download Invite FINAL
2d Annual Law & Society Symposium, Crime and Punishment, Charleston, South Carolina, Feb. 18-19, 2010 - Download CLR Symposium 2010 Mailer FINAL The program includes a panel on the Effects of the Financial Crisis on White Collar Crime with Mark S. Radke (Dewey & LeBoeuf), Daniel V. Dooley (former -Pricewaterhouse Coopers LLP), M. Rhett Dehart (AUSA - S. Carolina). One of my colleagues Professor Robert Batey (Stetson) will be speaking on a panel discussing the Functions of Criminal Punishment in Society.
January 21, 2010
In the News & Around the Blogosphere
GT (Greenberg Traurig) Alert - SEC Announces New Enforcement Initiatives - Download GTAlert_SEC New Enforcement Initiatives_Jan2010
Greg Gordon, McClatchy,Justice Department eyes possible fraud on Wall Street (hat tip to Ted Gest)
Paul Egan, Detroit News,Rash of health care fraud hits Metro area, In latest arrest, federal agents charge 2 doctors, 11 others with bilking Medicare out of $14.5M (hat tip Ted Gest)
Peter Henning, NYTimes - Dealbook, Punishing Lawyers in Corporate Frauds
Steve Kanigher, Las Vegas Sun, FBI arrests 21 in Las Vegas in foreign bribery case; Diana B. Henriques, NYTimes, F.B.I. Charges Arms Sellers With Foreign Bribes
Washington Post, AP, Daniel Freed, Yale law professor, dies
Press Release, Intelligence Note, Internet Crime Complaint Center, New Twist on Counterfeit Check Scheme Targeting U.S. Law Firms
FBI Press Release, National Center for Disaster Fraud to Coordinate Haitian Fraud Complaints
Corporate Crime Reporter, Epstein Becker's Stuart Gerson on the Stevens Case and Wayward Justice
Tom Caprood, The Record, Bruno’s lawyers appeal conviction
Herbe Gouraige, National LJ, Honest services law must go -The Supreme Court should declare it unconstitutional rather than try to rewrite it.
Kris Hundley, Tampabay.com, Former Medical Manager Corp. executives head to trial next week
Tom Kirkendall, Houston Clear Thinkers, One step forward, a big step back
Juan A. Lozano, SFExaminer,Judge Moves Retrial for Merrill Lynch Exec in Enron Case While Dismissing Case Against Another
Dwyer & Collora Names Bill Lovett Partner - Download Bill Lovett Release
Jordan Weissmann, BLT Blog, Saudi Bank Asks Court to Stop Patriot Act Subpoena
General Re Non-Prosecution Agreement - Commentary
DOJ and General Re have entered into a non-prosecution agreement that provides for a monetary payment of $19,500,000 to the US Postal Inspection Service Consumer Fraud Fund, as well as other payments. The agreement and details of it can be found in Andrew Longstreth's article in AMLAW Litigation titled, General Re Resolves DOJ and SEC Claims Based on Fraudulent AIG Transactions. Background on the situation can be found in Amir Efrati's article in the, WSJ, GenRe Reaches Deal With Justice Department in AIG Case. The agreement itself has some of the typical provisions we have seen in deferred and non-prosecution agreements, but also has some that are not found in all of the agreements of the past.
- Like the typical non-prosecution agreement, the agreement is provided by a letter between the parties and is not part of a court document.
- Like the typical deferred and non-prosecution agreement, the DOJ has the "sole discretion" to determine if there is a failure to comply. I should note here that in a recent co-authored article on deferred prosecutions, written with Professor Candace Zierdt , we note the contractual problems with one party having the sole discretion to determine if there is a breach of the terms in the agreement. See Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing A court does not get to review the validity of whether there has in fact been a breach of the agreement.
- In the cooperation section of the agreement, there is a provision providing that this cooperation section does not apply if it's a prosecution because of a breach of the agreement. It is good to see DOJ recognizing that they can't ask a party to be their own prosecutors.
- The agreement includes an "internal corporate remediation measures" section. Although corporate monitors have often been seen in past agreements, this agreement has some peculiar aspects. For one the agreement has some very specific remediation statements. For example, the Berkshire Hathaway CFO and Director of Internal Audit will be attending the General Re Corporation's Audit Committee meetings. Additionally a Complex Transaction Committee "will maintain the power to reject any proposed transaction from being written by General Re or any of its insurance or reinsurance company affiliates within the Gen Re Group." The specifics here make one wonder to what extent the government is inserting itself within private corporate matters. They aren't just saying you have to comply with the law, they are providing an infrastructure to make them accountable.
- The agreement prohibits the company from making certain statements -
"General Re agrees that neither it nor its directors and executive officers, nor any person authorized to speak for them, will make, cause others to make, or acknowledge as true any factual statement inconsistent with the factual descriptions of the Agreed Statement of Facts in Attachment A. Any such public statement inconsistent with the Agreed Statement of Facts shall, subject to the cure rights below, constitute a breach of this Agreement."
- General Re also agreed to run press releases or other prepared public statement in connection with this agreement by the DOJ, and they need to receive the seal of approval from DOJ prior to its release. Can the government include an agreement that infringes on first amendment rights? It isn't the first time that we have seen such a provision.