May 14, 2011
D.C. Circuit Affirms Safavian Convictions After Retrial
Here is yesterday's opinion from the D.C.Circuit in United States v. David Safavian. The former Jack Abramoff friend and colleague was convicted upon retrial, after the appellate court threw out the original convictions on various grounds. The primary contention in the latest appeal was vindictive prosecution, as new charges were added after the remand. The Court held that the trial court did not abuse its discretion in finding that the government added the new charges to counter Safavian's literal truth defense. Safavian's alleged felonious conduct was incredibly petty and minor in nature. The prosecution was a tremendous waste of government resources.
May 11, 2011
Dog Bites Man. Rajaratnam Guilty On All Counts.
Read all about it. Here is Katya Wachtel's report for businessinsider.com. Carrie Johnson of NPR's All Things Considered discusses the deterrent effect of Wall Street wiretaps in Wiretaps: Not Just For Mob Bosses Anymore, with a quote thrown in from yours truly.
May 10, 2011
Raj Rajaratnam - The Latest
Grant McCool, Reuters, No decision yet from Raj Rajaratnam jury's ponderings
Hon. Titus Calls for Acquittal in Lauren Stevens Case
Hon. Roger Titus (nominated by George W. Bush) provides a moving statement in granting an acquittal of Lauren Stevens:
"I take my responsibility seriously. I practiced law for a long time and made a number of Rule 29 motions that -- or in the state system equivalent of them. I don't have a very good track record with those motions. In my seven and a half years as a jurist I have never granted one. There is, however, always a first."
The judge noted how attorney-client privilege material had been used in trial as a result of the prosecution obtaining them via a claim under the crime-fraud exception. He notes -
"With the 20/20 vision of hindsight, and that's always the place to be in terms of wisdom, the Massachusetts Order was an unfortunate one, because I now have benefitted from a trial in which these documents that were ordered produced were paraded in front of me and the prosecutors were permitted to forage through confidential files to support an argument for criminality of the conduct of the defendant.
"What those records demonstrate to the Court is, first of all, that access should not have been granted to them in them in the first place. . . But they also show that this was a client that was not engaged to assist a client to perpetrate a crime or fraud. Instead, the privileged documents in this case show a studied, thoughtful analysis of an extremely broad request from the Food and Drug Administration and an enormous effort to assemble information and respond on behalf of the client."
"The responses that were given by the defendant in this case may not have been perfect; they may not have satisfied the FDA. They were, however, sent to the FDA in the course of her bona fide legal respresentation of a client and in good faith reliance of both external and internal lawyers for GlaxoSmithKline."
The court notes near the end of the Order:
"I conclude on the basis of the record before me that only with a jaundiced eye and with an inference of guilt that's inconsistent with the presumption of innocence could a reasonable jury ever convict this defendant."
"There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career."
Transcript of Hearing - Download 110510STEVENS (hat tip to Ronald Levine- Post & Schell)
May 9, 2011
New Scholarship - The Criminal Class Action
Professor Adam S. Zimmerman and David M. Jaros have a new article titled, The Criminal Class Action. It is forthcoming in 159 University of Pennsylvania Law Review 1385 (2011) and available on SSRN here. The abstract states:
"Over the past ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud. In what we call "criminal class action" settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence.
"Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation. While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims.
"We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm. However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation. We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests."
Victims' Rights - Objections to Plea and DP
An interesting Petition was filed by the Instituto Costrarricense de Eletricidad (ICE) objecting to the plea agreement and deferred prosecution agreement between Alcatel-Lucent France, S.A., Alcatel-Lucent Trade International, A.G., and Alcatel Centroamnerica, S.A. with the Department of Justice. Victim's rights are now something DOJ needs to be aware of as 18 U.S.C. s 3771 provides specific statutory obligations. In this petition, the claimants argue that "the deal between Alcatel Lucent and the government allows the Company to conceal the information relating to its criminal conduct; resolve all criminal exposure through the payment of a fine below the legal required minimum; provides immunity for the companies from prosecution beyond paying these insufficient fines; avoid required presentence procedures; avoid a criminal conviction for Alcatel Lucent S.A. and thereby appropriate administrative restrictions applicable to convicted criminals; and further avoid legally required restitution." With increased oversight and transparency in deferred prosecution agreements, it will be interesting to see if we start seeing more of these type of motions.
Attorneys handling this case are from Wiand Guerra King(George Guerra, Gianluca Morello, Dominique H. Pearlman, and Jordan Maglich).
May 8, 2011
In the News & Around the Blogosphere
Brian Zabcik, law.com, Corporate Counsel, Reasonable Minds Can Disagree: SEC, Justice Part Ways on Rockwell Payments
Sue Reisinger, law.com, Corporate Counsel, U.S. Attorney Accuses Wright Medical Group of Breaching Deferred Prosecution Agreement
Mike Frisch, Legal Profession Blog, Monica Goodling Reprimanded
Maryann Spoto, New Jersey.com, Feds won't appeal corruption ruling
Joel Rosenblatt & Edvard Pettersson, Bloomberg, Ex-Mets Player Dykstra Indicted on Bankruptcy Fraud Charges
Joe Palazzolo, WSJ Blog, SEC Looking At Firms’ Dealings With Foreign Pension Funds