Thursday, December 27, 2012
Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, then considering three recent examples: the NDAA’s opposition to a broad reading of Model Rule 3.8(d)’s disclosure obligation; some prosecutors’ opposition to states’ adoption of the post-conviction obligations of Model Rules 3.8(g) and (h); and the Queens County, NY, district attorney’s opposition to a trial court’s consideration of the ethical propriety of his office’s post-arrest interrogation practices. The article argues that prosecutors’ anti-regulatory rhetoric undermines the culture of prosecutors’ offices and is contrary to the public interest in other ways.
Gabriel Markoff has a piece titled, Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century that is forthcoming in the University of Pennsylvania Journal of Business Law, April 2013 issue. The SSRN abstract states:
The conventional wisdom states that prosecuting corporations can subject them to terrible collateral consequences that risk putting them out of business and causing massive social and economic harm. Under this viewpoint, which has come to dominate the literature following the demise of Arthur Andersen after that firm’s prosecution in the wake of the Enron scandal, even a criminal indictment can be a "corporate death penalty." The Department of Justice ("DOJ") has implicitly accepted this view by declining to prosecute many large companies in favor of using criminal settlements called deferred prosecution agreements, or "DPAs." Yet, there is no evidence to support the existence of the "Andersen Effect" and the much-hyped corporate death penalty. Indeed, no one has ever empirically studied what happens to companies after conviction. In this Article, I do just that. Using the database of organizational convictions made publicly available by Professor Brandon Garrett, I find that no publicly traded company failed because of a conviction in the years 2001–2010. Moreover, many convictions included plea agreements imposing compliance programs that advocates have pointed to as a key justification for using DPAs. Because corporate convictions do not have the terrible consequences they were assumed to have, and because they can be used to obtain compliance programs just as DPAs can, the DOJ should prosecute more lawbreaking companies and reserve DPAs for extraordinary circumstances. In the absence of some other justification for using DPAs, the DOJ should exploit the stronger deterrent value of corporate prosecution to its full capacity.
Wednesday, December 26, 2012
500 Pearl Street, The Top White Collar Cases of 2012
Labaton Sucharow, SEC WhistleblowerAdvocate, SEC Sanctions Database
A. Brian Albritton, False Claims Act & Qui Tam Law Blog, Wake Up Call for Those Asserting Broad Privilege Claims: U.S. ex rel Kalid-Kunz v. Halifax Hospital
Brandon L. Garrett, Huffington Post, A Christmas Carol for Bankers
David Barstow & Alejandra Xanic von Bertrab, NYTimes, The Bribery Aisle: How Wal-Mart Got Its Way
DOJ Press Release, Justice Department Recovers Nearly $5 Billion in False Claims Act Cases in Fiscal Year 2012 Largest Annual Recovery in Department History Department Also Sets Records for Health Care and Mortgage Fraud Recoveries And Recoveries in Whistleblower Suits
Todd Bussert, Federal Prison & Post Conviction Blog, Helping Organizations That Help Federal Prisoners
Jenna Greene, BLT Blog, Eli Lilly Settles SEC Case Involving Overseas Bribery Violations
Ryan McConnell, Dianne Ralston & Charlotte Simon, Corporate Counsel, What Computer Models Can—and Can't—Do
Steven Ramirez, Corporate Justice Blog, LAWLESS CAPITALISM and HSBC