Wednesday, September 26, 2012
It is always interesting to see who will get a non-prosecution agreement, a deferred prosecution, or be placed in the position of pleading guilty. There are few who go to trial, but occasionally it happens. The risk of trial is enormous especially if the company is in the defense procurement area, accounting, health care, or dealing with possible collateral consequences.
According to a DOJ press release, "Tyco International Ltd - together with a subsidiary that pleaded guilty" to a criminal charge of conspiracy to violate the FCPA agreed to pay more than $26 million for the DOJ resolution and for charges from the SEC.
It seems that "an indirect, wholly owned subsidiary of Tyco" is the one pleading guilty, but near the bottom of this same press release one finds that Tyco received a non-prosecution agreement.
To what extent does the collateral consequences of the process drive the different resolutions?
Ed White, AP, Corruption Trial Opens for Former Detroit Mayor
Patricia Hurtado, Bloomberg, Bharara Sees Schemes Grow as White-Collar Unit Turns 50
Mike Scarcella, BLT Blog, DOJ Career Prosecutor Mary Pat Brown to Join O'Melveny & Myers
DOJ Press Release, TAIWAN-BASED AU OPTRONICS CORPORATION SENTENCED TO
PAY $500 MILLION CRIMINAL FINE FOR ROLE IN LCD PRICE-FIXING CONSPIRACY -Company Also Sentenced to Adopt Antitrust Compliance Program; Former Top Executives Each Sentenced to Serve Three Years in Prison and to Pay Criminal Fine
Mark Hamblett, NYLJ, Ex-Lawyer Skips Retrial, Pleads Guilty in Tax Shelter Scheme
David Gialanella, NJLJ, With New Judge in Bergrin Case, Prosecutors Win Evidence Rulings
Monday, September 24, 2012
On September 13th Assistant Attorney General Lanny A. Breuer spoke to the New York City Bar extolling the virtues of DOJ's strategy for corporate prosecutions (see here). Former co-blogger Peter Henning here, also authored an article which focuses on the use of deferred prosecution agreements by the government.
One clearly has to credit the government with raising the bar in the corporate world to comply with legal mandates. Corporations throughout the world now have strong compliance programs and conduct internal investigations when questionable activities are reported to them. Likewise, post-Arthur Andersen, LLP, corporations are shy to go to trial - although there are some who have done so successfully (e.g. Lindsey Manufacturing- see here).
When the government first started using deferred and non-prosecution agreements, in a prior administration, there were government practices that were questionable. For example, allowing for huge sums to money to go to a former attorney general as a monitor, giving a chair to a law school that happened to be the same school the US Attorney graduated from, and negotiating for continuing work with the government as part of the agreement. (see Zierdt & Podgor, Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing-here) Without doubt there were terms within the agreements that needed revision. Some terms that give complete control to prosecutors in deciding who can determine breaches of agreements present problems. But many of the questionable practices are not seen in recent deferred prosecution agreements, and this is good.
Agreements that still provide an imbalance between corporate misbehavior and individual miscoduct is creates an imbalance, but much of this is created by the fact that corporations have greater resources and can control the discussion with DOJ, to the detriment of the individual. Clearly there needs to be a better recognition of corporate constituents during the internal investigations, the subject of a forthcoming article that I author with Professor Bruce Green (Fordham) titled, Unregulated Internal Investigations: Achieving Fairness for Corporate Constituents. But this issue may not be one strictly for DOJ to resolve.
What is particularly impressive about the DOJ use of deferred prosecution agreements today is that it uses an educative model to reform corporate misconduct. One can't put a corporation in prison, so with fines as the best alternative it is important to focus on motivating good conduct. Corporate deferred and non-prosecution agreements are an important step in achieving this positive result. So, it is important to credit today's DOJ with how it is tackling the problem of corporate misbehavior.
Sunday, September 23, 2012
Prominent white collar litigator Abbe David Lowell will receive the 2013 White Collar Criminal Defense Award during the NACDL White Collar Criminal Defense College program at Stetson University College of Law in Tampa Bay, Fla. The award, which honors individuals who have made a profound impact on the field of white collar criminal defense advocacy, will be presented on Jan. 12, 2013.
Mr. Lowell, a partner at Chadbourne & Parke LLP and head of the firm's White Collar Defense, Regulatory Investigations and Litigation Group, is one of the nation's leading white collar defense and trial attorneys. He has successfully tried cases in 17 states and argued in more than a dozen courts of appeals, including the Supreme Court. He advises clients in their dealings with the U.S. Congress, state legislatures, and federal and state regulatory agencies. Mr. Lowell has defended notable high-profile public and political clients, most recently former U.S. presidential candidate Senator John Edwards, whose four-week trial ended with an acquittal and hung jury counts, resulting in the Justice Department dropping the case on June 13, 2012.
"I am honored and humbled to receive this award from my peers, and want to thank both the Stetson University College of Law and the National Association of Criminal Defense Lawyers for selecting me," said Mr. Lowell. "I am proud to work with my white collar defense colleagues around the country to maintain the balance between government and the rights of those charged with crimes."
Mr. Lowell also served as chief minority counsel during impeachment proceedings against former President Bill Clinton and as special ethics counsel to the House Committee of Standards of Official Conduct. He was special counselor to the United Nations High Commissioner for Human Rights in the investigation and prosecution of human rights violations and war crimes in Rwanda and the former Yugoslavia from 1994-96. Mr. Lowell teaches criminal law, evidence and trial practice at Georgetown Law Center and Columbia Law School and has written extensively on criminal law and procedure issues in legal and non-legal publications.
He has been recognized as one of the most influential attorneys and best white collar defense attorneys in the U.S. by publications including The National Law Journal as well as Chambers and Best Lawyers in America.
The NACDL White Collar Criminal Defense College at Stetson is a legal education program for practitioners wishing to gain key advocacy skills and learn substantive white collar law from masters in the field. The program is scheduled for Jan. 9-13, 2013. For more information, contact Stetson Law Professor Ellen S. Podgor at 727-562-7348 or firstname.lastname@example.org or NACDL Meetings Manager Tamara Kalacevic at 202-872-8600 x641 or email@example.com. You can learn more about the program, and access a registration application by clicking here.
The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress. The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines. The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.
To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012.Any late submissions will be considered on a space available basis only.
For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers. To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at firstname.lastname@example.org.
In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools. If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at email@example.com. For more information about CSLSA, visit our website at http://cslsa.us/.