Friday, March 10, 2017
Acting Assistant Attorney General Criminal Division Kenneth A. Blanco was the keynote speaker for the final morning's program of the ABA White Collar Crime Conference of 2017. He spoke about transnational and money laundering crimes and government prosecutions in this area. He emphasized the importance of international cooperation. He remarked that there has been an increase in multinational investigations and it is important to have strong relationships with our counterparts worldwide.
He used the word "global" 14 times, the word "international" 25 times, and "cooperation" 11 times. International collaboration and cooperation were without doubt his theme.
He spoke briefly about the Fraud Section Pilot Program, stating:
"Before I conclude, I would be remiss if I did not comment on the Fraud Section’s “Pilot Program.” Last year, the Fraud Section implemented a one-year “Pilot Program” for FCPA cases, to provide more transparency and consistency for our corporate resolutions. The “Pilot Program” provides our prosecutors, companies and the public clear metrics for what constitutes voluntary self-disclosure, full cooperation and full remediation. It also outlines the benefits that are accorded a voluntary self-disclosure of wrongdoing, full cooperation and remediation. The one-year pilot period ends on April 5. At that time, we will begin the process of evaluating the utility and efficacy of the “Pilot Program,” whether to extend it, and what revisions, if any, we should make to it. The program will continue in full force until we reach a final decision on those issues."
He ended with the lyrics from a 1960s song from Martha and the Vandellas – "Nowhere to run baby, Nowhere to hide."
A full copy of his talk can be found here.
Wednesday, March 8, 2017
One of the opening panels of the conference was a breakout on Pre-trial Practice in Federal Criminal Cases. The panel included Hon. Cecilia Altonaga, Professor Ricardo Bascuas, Ryan O'Quinn, David Markus, and Vanessa Snyder. The moderator was Andrew Feldman.
The panel looked at motion filing, bail, and admission and exclusion of evidence as some of the topics for discussion.
From the prosecutor perspective Ms. Snyder emphasized the benefits of defense counsel calling prosecutors before filing motions. "See if you can work it out." It would lead to a more productive result, she stated. She stated that then if it is necessary you can file the motion if you can't work it out.
Judge Altonaga emphasized having a plan when filing pre-trial motions. Is it getting you to your goal or are you alienating the court and prosecutor. Pre-trial motions can be used to educate the court.
David Marcus spoke about the insignificant number of folks who skip on a bond and how the failure to give a bond proves detrimental to the system. Judge Altonaga spoke about the risk of flight standard. It helps if there are local ties, that is ties to the United States exist.
Professor Bascuas noted the increased number of individuals in prison and the decreased number of trials.
Ryan O'Quinn noted the long relationship that the prosecution and defense have prior to Indictment in white collar cases.
The panelists also discussed the admission and exclusion of 404(b) evidence and motions in limine.
Audience questions turned the discussion in a different direction - Brady.
Thursday, February 16, 2017
As many readers know, I am heavily involved in planning international white collar crime conferences with the American Bar Association Criminal Justice Section. These have become wonderful learning and networking opportunities for those with an interest in the many issues in the field that transcend national boundaries.
I’m excited to announce the next international conference offering will occur on April 5, 2017 in Hong Kong. The event will focus on Global Investigations and Compliance: From Regulatory Trends to Leveraging Innovation and Technology. I expect this conference to be a wonderful compliment to the successful Global White Collar Crime Institute the American Bar Association held in Shanghai in 2015. If you attended the Shanghai event, I hope you will join us again and reconnect with the many colleagues and contacts you established at that earlier conference. If you were not in attendance in Shanghai, I hope you will join us in Hong Kong and be introduced to the growing network of international professionals making these American Bar Association white collar conferences an important part of their network.
Seating is limited for this event, and I hope you will register today to reserve your spot (click here to register). I look forward to seeing many of you in April.
Official ABA Event Description
PwC Hong Kong and the American Bar Association are hosting a full day seminar with four robust panel discussions followed by a networking reception. The panel sessions will focus on a number of pertinent topics, such as exploring regulatory updates, international investigations, navigating cross-jurisdictional issues in Southeast Asia, and the future of blockchain technology in compliance programs. The content for these panels will be delivered by leading experts, including prominent attorneys in the US and Asia, US regulators, consulting professionals, corporate executives, professors, and others. The target attendees for this event are international and Hong Kong/China based legal and corporate professionals focused on white collar crime and compliance.
- Regulatory Update: Recent Trends in Enforcement
- Current State of International Investigations
- Navigating Cross-Jurisdictional Issues in the South Asian Market
- Block-chain Technology: What does it mean for the Future of Compliance Programs?
More information here.
Tuesday, October 11, 2016
In this second post from the Fifth Annual ABA Criminal Justice Section London White Collar Crime Institute, I will discuss some of the lessons learned and issues discussed during this morning’s panel on international internal investigations.
The panel emphasized that one of the first issues for consideration after the discovery of potential misconduct by a corporate employee is disclosure obligations. One of the issues discussed in this context was the tension the exists when a corporation wants time to develop the facts, but mandatory disclosure requirements restrict the time frame during which this can occur. This is an issue made even more complex in the international context, where the disclosure obligations might vary significantly from one jurisdiction to another. Further, along with mandatory disclosure obligations, there are permissive disclosure considerations. One of the most important, of course, is the decision whether and when to disclosure the issues discovered to the government in an effort to demonstrate cooperation and voluntary disclosure.
The panel also considered the importance of seeking to preserve evidence immediately. As readers know, failure to protect evidence from destruction can both jeopardize the ability of counsel to conduct an effective internal investigation and, potentially, lead to charges of obstruction of justice.
Part of the hypothetical discussed during the panel involved a number of emails being collected by private counsel as part of the internal investigation. These emails came from various parts of the world, including Hong Kong and Amsterdam. While counsel in the U.S. are comfortable with collecting emails and other corporate documents during an investigation without significant impediment, data privacy laws in other countries introduce a number of complexities. In the European Union, for example, there are many restrictions on the transfer of data out of the country. One related issue explored by the panel was whether U.S. prosecutors understand or appreciate the significance of these data privacy obligations. Based on discussions both today and yesterday at the conference, it appears that one of the reasons tension exists in this area is because of the different approaches to these data privacy obligations taken by corporations during pending investigations.
The panel then discussed issues associated with employee interviews during an internal investigation. Here, the panel examined the ways that local employment, criminal, and civil laws can impact the ability of counsel to conduct such interviews. Once again, while few restrictions exist in the United States, a host of restrictions and requirements related to interacting with employees in this way may apply abroad. Can the interview be recorded? Can the employee’s statements be disclosed to the government? Does the employee need to be given notice or provided with representation prior to the interview? What types of disclosures need to be made to the employee before the interview begins? Are interview notes privileged? How do the answers to these questions impact an internal investigator’s strategy? As these questions illustrate, each step of the investigation on the international stage posses various pitfalls and perils.
As part of this panel, we also heard an interesting discussion of the economics of profit and loss calculations in a bribery case. The presentation reminded us of the complexities of profit and loss calculations and the significant impact these calculations might have on the outcome of the case. It also reminded us of the importance of retaining the right experts in any case, particularly one that crosses borders.
The panel as a whole served as a nice reminder of the importance of considering local laws and rules when engaging in a cross-border investigation.
Monday, October 10, 2016
I’m attending the Fifth Annual ABA Criminal Justice Section London White Collar Crime Institute this week and the program will be touching on various important issues in the field. I thought I might share some of what was discussed with our readers.
In this first post, I’ll focus on what was discussed during the first morning session where we heard from Andrew Weissmann, Chief of the DOJ Criminal Division’s Fraud Section, and Mark Steward, Director of Enforcement and Market Oversight at the Financial Conduct Authority (“FCA”) in London. During the panel, Mr. Weissmann and Mr. Steward focused on four themes – cooperation, corporate compliance programs, individual accountability, and reliance on internal investigations.
Regarding the first issue, Mr. Steward noted that currently there is significant contact between the FCA and the DOJ. In particular, he noted that there is little preclusion today regarding regulators and prosecutors collaborating on investigations and how they might conclude. Mr. Weissmann agreed that there is significant cooperation today, not just between the U.S. and U.K., but also with many other countries around the globe. The challenge he noted is that moving forward global enforcement bodies need to be cognizant of what each other wants and ensure that the penalty at the end of the day is fair.
Regarding compliance programs, there was discussion of the DOJ compliance expert, Hui Chen. Mr. Weissmann noted that there are two key questions for Ms. Chen based on the Principles of Prosecution. He described those as (1) did the company have an adequate compliance program and (2) did the company adequately remediate the issue? The DOJ, he noted, looks at compliance programs through this lens. The take-away from the discussion was that the process of receiving credit for a compliance program is much more rigorous than in the past and is, at least in part, data driven. Mr. Steward stated that compliance programs are important because of the manner in which they speak to a company’s culture.
Regarding individual accountability, Mr. Weissmann stated that the Yates Memo has been somewhat misunderstood. To illustrate this point, he noted that the DOJ Fraud Section prosecuted 225 individuals and 11 corporations last year. So it has not been the case, he emphasized, that the DOJ has been focusing only on corporations. There was a focus on individuals before the Yates Memo, he said, and that focus remains after the Yates Memo. Mr. Weissmann also noted that it is important to recognize that the issue of individual responsibility is important when considering compliance programs and remediation. From his comments, it appears clear that corporations must consider not only how to sanction those responsible for the actions under investigation, but also those who were responsible for monitoring or supervising these individuals.
Regarding internal investigations, Mr. Weissmann stated that the DOJ finds it very helpful for a company to conduct an internal investigation. He encouraged cooperation and coordination during such inquiries. For example, he said that the DOJ is interested in learning who will be interviewed in an investigation because the government might like a particular issue asked during the interview or might like to interview the employee before investigating counsel. In general, Mr. Weissmann stated that the DOJ is looking for investigations that are “independent and candid.” Mr. Steward was more skeptical of the value of internal investigations because of what he described as an inherent conflict of interest. He stated that he must base a decision in a matter on evidence gathered and corroborated by his organization, not by a private law firm. Mr. Weissmann stated that internal investigations are particularly helpful in complex cases. For example, he stated that in large cases it could be difficult to determine who might actually have valuable information. Investigating counsel, he said, can help focus the DOJ on the right individuals so the government can use its resources in a targeted manner. As another example, Mr. Weissmann noted that many cases today have international components. In such matters, it can be difficult or time consuming to gather information from abroad through the MLAT process. Law firms, he noted, can be very helpful is assisting to get information and determine where further inquiry might be valuable.
Thursday, May 5, 2016
NACDL and the US Chamber of Commerce have a Law & Policy Symposium on Thursday May 26, 2016 at the US Chamber of Commerce in Washington, D.C. The title of the program is "The Enforcement Maze: Over-Criminalizing American Enterprise." The morning keynote speaker will be Chair of the House Committee on the Judiciary Bob Goodlatte, with David Ogden, former deputy AG, doing a keynote address later in the day. For the full program, see here - Download Agenda_NACDL-ILR Law Policy Symposium_External Agenda_5-5-16
Friday, March 4, 2016
There was an incredible presentation on implicit bias, moderated by Hon. Bernice B. Donald, who chairs the ABA Criminal Justice Section. This was a real highlight of the program and the audience was glued to the screen for a short video of images. The discussion that followed was truly enlightening. Also hats off to the Hon. Mark W. Bennett, who comes off the bench to shake the hand of the defendant in order to explain the presumption of innocence.
One panel, moderated by Morris "Sandy" Weinberg, looked at the The Future of White Collar Criminal Law. The incredible array of panelists discussing the past and future were: Robert B. Fiske, Jr., Gary Naftalis, Dan Webb, Robert Bennett, John Keker, Larry Thompson, Karen Seymour, Leslie Caldwell.
There was another panel titled: Women in the Courtroom: A View from the Jury Box. Moderated by Hon. Patricia Brown Holmes, a retired associate judge in the Circuit Court of Cook County and a partner at Schiff Hardin LLP (Chicago), the panelists continued the discussion from earlier in the program on implicit bias. Joan McPhee, a partner at Ropes & Gray LLP asked the question, “[d]oes gender matter in the courtroom?”
This panel started by saying that there was no real studies, so the panelists decided to do their own research and study.
Dr. Ellen Brickman, Director in the Jury Consulting practice at DOAR Inc., a litigation consulting firm in New York, explained how the juror study was conducted. Ms. McPhee then explained the survey of attorneys and Laura C. Marshall, a partner at Hunton & Williams LLP, described comments received from the surveys.
Bottom line - Women jurors had a stronger preference for women attorneys.
There was discussion of the importance of being careful of distractions and to watch speech patterns in front of jurors. This was in addition to a discussion of who to select on the jury. It was noted that the government tends to have more women on their teams and some of the panelists looked at the challenges of getting more women on trial teams. Although Dr. Ellen Brickman noted that having women on teams as tokens can work negatively. There was also a discussion on the role of emotion and how anger plays out in the courtroom.
I can't wait to read this study.
Thursday, March 3, 2016
Deputy Attorney General Sally Yates was the luncheon speaker at the ABA White Collar Crime Conference. It was a Q and A format, and as one might suspect, the Yates Memo was a key topic - although she preferred not to call it the Yates Memo.
She started by saying that as long as a company acts in good faith, they can still get cooperation credit even if they can't designate a particular culprit. She stated that they are not requesting a waiver of privilege. She said, "we want the facts." As a matter of fact, she said this several times in answer to questions asked.
She was unable to say whether companies were not disclosing because of this new policy. But she did say that a company would get more credit if they voluntarily disclosed than if there was an investigation and they then disclosed. She noted that its a question of how quickly you cooperate. She also spoke about the civil side of investigations - again with an eye toward looking at the individuals. She also spoke about the training conference to educate on this policy.
My takeaway - it's all about throwing the individual under the bus, even if you can't name the specific individual.
This year marked the 30th Anniversary of the ABA White Collar Crime Conference. Hon. Paul Friedman gave a wonderful talk in which he looked at three decades in white collar practice. He noted how initially there was “no focus on white collar crime.” In 1970 a fraud unit was created, and it was the first time anyone decided to focus on this area of law. Initially the main charges one saw were mail and wire fraud. But then came RICO, FCPA and others. He noted that in practice, firms did not have major white collar crime sections. Now they do, with initiatives in export controls, forfeiture, health care, and other areas. He also noted the rise of deferred prosecution agreements.
Judge Friedman focused in his talk on four things: 1) increased power of federal prosecutors – especially with regard to sentencing – which he noted was higher in white collar cases today than it used to be; 2) vanishing jury trials – with more pleas and a smaller number of cases going to trial – which in turn results in fewer lawyers with trial experience; 3) electronic discovery- and the need to confront the new technology; 4) Brady – and the need to eliminate a requirement of having a materiality element, with all potentially favorable information being disclosed. He suggested that judges need to play a more active role in discovery. Finally, he emphasized the growing imbalance of power from the judicial branch to the executive branch.
Wednesday, November 25, 2015
Last week, the American Bar Association Criminal Justice Section held the inaugural Global White Collar Crime Institute in Shanghai, China. The event was a tremendous success with participants from around the globe coming together to hear from prosecutors and judges, defense counsel and accountants, in-house counsel and academics. On the first day, we were honored to be joined by Deputy Assistant Attorney General Sung-Hee Suh. DAAG Suh delivered the keynote luncheon address and touched on many important and timely issues related to white collar crime. Below, I'll specifically mention just two of the areas discussed.
First, DAAG Suh discussed the Yates memo and provided additional information about the government's current perspective on corporate cooperation. DAAG Suh said:
In her memo, Deputy Attorney General Yates announced a policy change designed to further enhance the likelihood that individuals who are responsible for corporate crime will be held accountable. The existing policy stated that, in deciding whether to give a company credit for cooperation, a criminal prosecutor “may” consider a number of factors – including the company’s willingness to give information about individuals. The new policy means that the “may” has now become a “must.” In other words, in deciding whether to give a company credit for cooperation, a prosecutor now “must” consider the company’s willingness to give information about individuals. And a company that does not provide this information will not be eligible for any cooperation credit. Previously, companies could receive varying degrees of credit for varying degrees of cooperation. Now, a company will receive no credit for cooperation unless, at minimum, it does what it can to identify individuals involved in the conduct, whatever their level of seniority or importance within the company.
(emphasis in original).
Second, DAAG Suh discussed the Department of Justice's recent hiring of a new compliance counsel to assist them in analyzing and evaluating corporate compliance programs. DAAG Suh said:
Self-disclosure, cooperation and remediation are all steps that a company can take after the fact, but the Justice Department is just as committed to preventing corporate wrongdoing from occurring in the first place. To that end, the Department has long placed great emphasis on the importance of an effective corporate compliance program. In the U.S., there is no affirmative defense based on the company’s corporate compliance program, but the Filip Factors have long provided that in conducting an investigation of a corporation, determining whether to bring charges, or in negotiating plea or other agreements, prosecutors should consider, among other factors, “the existence and effectiveness of the corporation’s preexisting compliance program.”
Fundamentally we ask, is the corporation’s compliance program well designed? Is the program being applied earnestly and in good faith? And does the corporation’s compliance program generally work? This is common sense in broad strokes. But prosecutors are no experts in the nuances of corporate compliance programs. Indeed, over the past twenty years in particular, the role of compliance has been evolving, becoming more sophisticated, more industry-specific and more metrics-oriented. Many companies have rightly tailored compliance programs to make sense for their business lines, their risk factors, their geographic regions and the nature of their work force, to name a few. But many have not.
The Fraud Section has therefore retained an experienced compliance counsel. She started only two weeks ago, so it’s still too early to talk about specifics. But I can tell you generally that we wanted to get the benefit of someone with proven compliance expertise, so as to probe compliance programs in terms of both industry best practices and real-world efficacy. This compliance counsel will help us assess a company’s claims about its program, in particular, whether the compliance program is thoughtfully designed and sufficiently resourced to address the company’s compliance risks, or is – at bottom – largely window dressing.
No compliance program is foolproof. We understand that. We also appreciate that the challenges of implementing an effective compliance program are compounded by the everincreasing cross-border nature of business and of criminal activity. Many companies’ businesses are all over the world. They are creating products and delivering services not only here in China but overseas and are operating across many different legal regimes and cultures. We also recognize that a smaller company doesn’t have the same compliance resources as a Fortune-50 company. Finally, we know that a compliance program can seem like “state of the art” at a company’s U.S. headquarters, but may not be all that effective in the field, especially in far-flung reaches of the globe.
The Fraud Section’s compliance counsel – who, notably, has worked as a compliance officer here in China, as well as in the U.S. and the U.K. – has the concrete experience and expertise to examine a compliance program on both a more global and a more granular level. More so than ever, it is critical that companies have vigorous compliance programs to deter and detect misconduct. Our compliance counsel will give our prosecutors more tools to intelligently assess them.
DAAG Suh's entire comments at the inaugural Global White Collar Crime Institute are available here.
I was also pleased to announce in my closing remarks to the Institute in Shanghai that the second Global White Collar Crime Institute will take place in South America in the spring of 2017. I hope to see you there.
Tuesday, September 15, 2015
Striking the Right Balance: Criminal v. Civil Law Sanctions
National Association of Criminal Defense Lawyers (NACDL), Foundation of Criminal Justice (FCJ), Constitution Project (TCP)
Moderator Professor Lucian Dervan (Southern Illinois School of Law)
Panelists - Adeel Bashir (Office of the Federal Defender, Middle District of Florida), John Lauro (Lauro Law Firm), & Marjorie Peerce (Ballard Spahr)
Wednesday, September 16, 2015 from 12:00 PM to 1:15 PM (EDT) For more information see here.
Monday, September 7, 2015
Registration is now open for the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute, which will take place November 19-20, 2015 at the Ritz-Carlton Shanghai Pudong in Shanghai, China. The event is done in collaboration with the KoGuan Law School of the Shanghai Jiao Tong University. I am honored to serve as the Institute Chair and hope to see many of our blog readers at the event.
This conference will be an incredible opportunity to interact with prosecutors, judges, defense counsel, accountants, in-house counsel, and academics from the U.S., China, and other parts of the world as they convene to discuss the complexities of international white collar crime.
More from the registration website:
The goal of the conference is to bring the energy and excitement of our previous international white collar crime conferences to Asia and create unique opportunities for our participants to network and explore the legal complexities of white collar crime in the growing Chinese legal market. Conference topics will include:
- General Counsels’ Roundtable
- Enforcers' Roundtable
- How to Conduct an International Internal Investigation
- Recent Developments in Global Antitrust Cartel Enforcement and Anticipated Implications for China and Asia
- Comparative Legal Systems & Special Enforcement Issues in China, the US & Beyond
- Year in Review: Lessons Learned from Recent White Collar Crimes Prosecutions in China & the US
- Trends Regarding Anti-Corruption Enforcement in China & the US
- Cyber Crime & Virtual Currencies
- Social Responsibility of Corporations
LUNCHEON KEYNOTE SPEAKER – November 19
Sung-Hee Suh, U.S. Deputy Assistant Attorney General
Suh was appointed in Sept. 2014 as the U.S. Department of Justice's Deputy Assistant Attorney General overseeing the Criminal Division's Fraud, Appellate and Capital Case Sections. She re-joined the Department after 15 years in private practice at Schulte Roth & Zabel LLP in New York, where she was a partner in the Litigation group and focused on representing institutions and individuals in financial fraud, securities regulatory, Foreign Corrupt Practices Act, anti-money laundering and sanctions matters.
The complete program is also now available on the ABA CJS registration website.
Wednesday, August 26, 2015
Once again, the ABA Criminal Justice Section Academics Committee will host work-in-progress roundtables at the annual Criminal Justice Section Fall Institute in Washington, DC. The roundtables will be held on Thursday, October 22, 2015 from 12:30-3:00pm at the Loews Madison Hotel, and the ABA will provide sandwiches and drinks for lunch. The rest of the CJS Fall Institute programs will take place later in the day on Thursday, October 22 and on Friday, October 23 at the same hotel.
We hope you will consider workshopping your criminal justice works-in-progress at these roundtables. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. If you’re interested in participating, please email an abstract of your paper of no more than 500 words to Lucian Dervan at firstname.lastname@example.org by Sept. 15, 2015. Space is limited, and presenters will be chosen by members of the organizing committee.
This is an excellent opportunity for academics at any stage of their careers, and for those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, but there is no registration fee for participating in the roundtables. If you decide to participate in the remainder of the ABA CJS Fall Institute, you will need to register for that event separately.
We are also excited to note that this year’s workshop will begin with a brief opening address by Professor Stephen A. Saltzburg of the George Washington University Law School. Professor Saltzburg will discuss how to create and execute a productive and impactful research agenda. Professor Saltzburg is one of the nation’s leading scholars and has authored over twenty books and over 100 articles. Professor Saltzburg’s talk is not to be missed.
The Criminal Justice Section has secured a special room rate of $269 single/double per night at the Lowes Madison Hotel. This rate can be reserved by calling 855-255-6397 and referring to the “ABA Criminal Justice Section Fall Institute.” You can also book online. Reservations must be made by Thursday, October 1, 2015 at 5:00pm EST to secure this rate.
Please spread the word to those who might be interested, including those not yet in academia. We have included below some information regarding last year’s workshop. We hope to see everyone in D.C. at the end of October.
All the best,
Lucian E. Dervan (SIU Law) and Meghan J. Ryan (SMU Law)
Co-Chairs, ABA CJS Academics Committee
Information Regarding Last Year’s Roundtable
On October 23, 2014, the ABA Criminal Justice Section Academics Committee hosted academic roundtables at the ABA Criminal Justice Section Seventh Annual Fall Institute. At these roundtables, scholars from across the country discussed papers on topics ranging from big data’s effect on jury selection to whether second-look sentencing is consistent with the asserted purposes of the Model Penal Code. Participants in the academic roundtables included Joanmarie Davoli (Florida Coastal, now Fed. Soc.), Cara Drinan (Catholic), Andrew Ferguson (Univ. of D.C.), Lea Johnston (Florida), Kevin Lapp (Loyola LA), Ion Meyn (Wisconsin), Steve Morrison (North Dakota), Anthony O’Rourke (Buffalo), and Meghan Ryan (SMU).
Here is a sampling of the great work they presented:
The Miller Revolution, by Cara Drinan (forthcoming in the Iowa L. Rev.)
In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has limited the extent to which juveniles may be exposed to the harshest criminal sentences. In this Article, I argue that the Miller trilogy has revolutionized juvenile justice. While we have begun to see only the most inchoate signs of this revolution in practice, this Article endeavors to describe what this revolution may look like both in the immediate term and in years to come. Part I demonstrates how the United States went from being the leader in progressive juvenile justice to being an international outlier in the severity of its juvenile sentencing. Part II examines the Miller decision, as well as its immediate predecessor cases, and explains why Miller demands a capacious reading. Part III explores the post-Miller revolution in juvenile justice that is afoot. Specifically, Part III makes the case for two immediate corollaries that flow from Miller, each of which is groundbreaking in its own right: 1) the creation of procedural safeguards for juveniles facing life without parole (“LWOP”) comparable to those recommended for adults facing the death penalty; and 2) the elimination of mandatory minimums for juveniles altogether. Finally, Part III identifies ways in which juvenile justice advocates can leverage the moral leadership of the Miller Court to seek future reform in three key areas: juvenile transfer laws; presumptive sentencing guidelines as they apply to children; and juvenile conditions of confinement.
Strictissimi Juris, by Steve Morrison (67 Ala. L. Rev. __ (forthcoming 2015)
Guilt by association is universally rejected, but its criticisms are always based on the substantive due process right to individual, not imputed, liability. The rule of strictissimi juris promises to be the procedural counterpart to the substantive right. Its promise, however, has gone unfulfilled because it is little understood or developed. This article provides a descriptive, prescriptive, and contextual dissertation on strictissimi juris. Descriptively, it provides the jurisprudential foundation and definition of strictissimi juris. Prescriptively, it sets forth the purposes for which lawyers and courts have invoked strictissimi juris, thus providing a guide for how future lawyers might invoke strictissimi juris, and courts apply it. Contextually, it analogizes strictissimi juris to substantive canons that play important roles in the separation of powers.
Friday, October 31, 2014
Earlier this month, I had the pleasure of once again attending the ABA Criminal Justice Section’s annual International White Collar Crime Institute in London. This year’s event included a host of excellent speakers from around the world addressing some of the most pressing issues in the field. I thought I would take just a few moments to share some of the insights and themes from the conference.
First, there was much discussion about deferred prosecution agreements in the UK. Though a very common means of resolving a criminal investigation in the US, DPAs only became possible in the UK earlier this year. Thus far, no DPAs have been announced in the UK. That might be about to change, however, as several speakers informed the audience that there are rumors in London that the first such DPA may be entered into towards the end of this year. We’ll be keeping an eye out for this significant development.
Second, many speakers pointed out important differences that exist globally when discussing white collar crime and enforcement. For example, in the UK, the SFO prefers that corporations not interview employees during an internal investigation. Once the US DOJ becomes involved, however, the DOJ tends to insist on interviews, thus creating a conflict of approaches. As another examples, the trend of requiring monitors as part of settlements is beginning to lose favor in the US. By comparison, the UK is currently moving towards monitorships. As a final example, the role of whistleblowers remains drastically different around the globe. In the US, whistleblowers and whistleblower incentive programs like the FCA and Dodd-Frank are generally considered important tools for discovering misconduct. In France, by comparison, whistleblowing is discouraged. In fact, according to our speakers, in France it would be illegal for an employer to require employees to engage in any form of whistleblowing. These are just a handful of examples of the significant differences that exist around the world and that create complex issues for resolution in cross-border criminal investigations and prosecutions.
Finally, I’ll briefly mention the panel I moderated. The panel examined collateral consequences of conviction around the world. Collateral consequences are an issue that is garnering much attention in the United States today. This is partly because of the ABA’s collateral consequences website, which is an excellent tool for researching the collateral consequences that might be applicable in a particular case. The website also gives some incredible insights into the breadth and scope of these collateral consequences. In Illinois, for examples, there are 2,266 statues, rules, and regulations imposing various collateral consequences. These include things like losing the right to vote, the right to drive, and the right to hold public office. One might lose a public pension, a business license, or even parental rights. One might lose access to public housing and food stamps. The list is voluminous. One of the most unusual collateral consequences in Illinois makes it a felony for a felon to “knowingly own, possess, have custody, or reside in residence with… an unspayed or unneutered dog or puppy older than 12 weeks of age…." Our conversation in London revealed that the trend of expanding collateral consequences is not limited to the United States. In the UK, prosecutors are now more likely to put forward collateral consequences during a prosecution and the courts are becoming more likely to impose them on individual defendants.
While there are many other fascinating issues that were covered during the conference, including discussion of virtual currencies, anti-bribery initiatives, whistleblowing generally, financial regulations, anti-trust prosecutions, and cyber security, I’ll stop here. But I hope this gives some insight into the complexities of international white collar crime in a global environment where significant differences abound.
Tuesday, August 12, 2014
As I mentioned in my post last week, I moderated a roundtable discussion at this year's ABA annual meeting entitled Navigating the White Collar Crime Landscape in China. While the discussion included many unique and interesting insights into current trends and challenges in the field of white collar crime in China, I thought I might share just a few of the themes we heard from participants.
First, according to our participants, we should expect to see a continued focus on anti-corruption enforcement actions by both the United States and China. Second, it is important to note that China has begun focusing on the prosecution of high-level corporate employees, not just low-level employees and the corporation. Third, we should anticipate that China will continue to expand its anti-corruption mission, including directing more attention towards U.S. entities. In this regarding, it was also predicted that China may soon explore the adoption of an anti-corruption statute with extraterritorial jurisdiction to assist it in undertaking a broader anti-corruption mission similar to the U.S. This might mean we will soon see a Chinese version of the FCPA. Finally, several of our panelists noted that China is increasing its focus on data privacy and state secrets laws, including enforcing such laws against foreigners more vigorously.
Regarding this last theme from the discussion, I'll note that on the morning of our program two corporate investigators in China, one from the UK and the other from the U.S., were found guilty of purchasing private information regarding Chinese citizens. The pair, who are married, were well known in the internal investigation community in China and regularly performed work for large U.S. corporations, including GlaxoSmithKline. According to the charges, the pair violated Chinese law by illegally acquiring personal information on Chinese citizens and then selling that information to their clients. The first defendant, Peter Humphrey, was sentenced to two and a half years in prison. The second defendant, Yu Yingzeng, was sentenced to two years in prison. Those who perform due diligence and internal investigation work in China are keeping a close eye on this and related matters. You can read more about the prosecution in The Wall Street Journal.
Monday, August 4, 2014
For those attending this year's ABA Annual Meeting in Boston, I wanted to alert you to a roundtable discussion occurring on Friday, August 8 from 3-5pm (Room 308, Level 3, Hynes Convention Center) entitled Navigating the White Collar Crime Landscape in China.
The event, which is co-sponsored by the Chinese Business Lawyers Association, will focus on emerging trends and challenges in the field of white collar crime in China. The event will begin with short presentations by a host of experts in the area, each of whom will offer their own unique insights. Following these brief introductory remarks, everyone in attendance will participate in an open dialogue. During the discussion portion of the program, panelists and audience members are encouraged to ask questions and share insights and experiences. It is anticipated that a wide variety of topics will be discussed and analyzed during this roundtable discussion, including strategies for conducting corporate internal investigations, advice for dealing with government agencies, best practices for corporate compliance, and current trends regarding cybercrime and corporate espionage, whistle-blower programs, anti-corruption enforcement, money laundering, and trade violations.
I will be moderating the program and will be joined by the following featured discussants:
Ronald Cheng - USAO, Central District of California
William McGovern - Kobre & Kim LLP, Hong Kong
Karen Popp - Sidley Austin LLP, Washington DC
Zaldwaynaka (Z) Scott - Kaye Scholer LLP, Chicago, Illinois
Philip Urofsky - Shearman & Sterling LLP, Washington, DC
Keith Williamson - Alvarez & Marsal, Hong Kong
Debra Yang - Gibson Dunn, Los Angeles, California
It should be a wonderful event. I hope to see some of our readers there.
Thursday, May 8, 2014
Howard University School of Law is hosting a conference in honor of Andrew Taslitz, who died on February 9, 2014. It is not a traditional symposium, for we expect concurrent sessions on many subjects. It is open to people who knew Taz and to those who were inspired by his writing or teaching. If you would like to take part in the live event, please submit an abstract by May 30, 2014 to the co-chairs named below. The conference is free but speakers must pay their own way.
Send abstact to co-chairs:
Josephine Ross JRoss.email@example.com
Lenese Herbert LHerbert@law.howard.edu
Ellen Podgor EPodgor@law.stetson.edu
For more details, see here - Download Andrew Taslitz Galaxy
Tuesday, April 8, 2014
I had the privilege of being at an NYU Conference titled, Deterring Corporate Crime: Effective Principles for Corporate Enforcement. Hats off to Professor Jennifer Arlen for bringing together folks with some different perspectives on corporate crime. Individuals presented data, and I heard different positions presented (corporate, government, industry, judicial) on a host of topics. The individual constituent (CEO, CFO, employee) within the corporation was not a key focus, unless it was a discussion of their wrongdoing or prosecution.
From this conversation it was clear that deterring corporate wrongdoing is not easy. Penalties have increased, yet we continute to see corporate criminality. So the question is, how do we encourage corporations not to engage in corporate wrongdoing?
This is my top ten list of what I think exists and what needs to be changed -
1. Most companies try to abide by the law.
2. Complying with the law is not always easy for corporations. In some instances the law and regulations are unclear, making it difficult to discern what is legal. The array of different laws and regulations (e.g., state, federal, and international), as well as their complexity makes corporate compliance problematic.
3. Companies resort to internal investigations to get information of wrongdoing within the company. In some instances companies will threaten individuals with the possible loss of their jobs if they fail to cooperate with a corporate internal investigation. Individuals who provide information to their employers sometimes do not realize that the company may provide that information to the government and the information may then be used against them.
4. If a company is criminally charged, it typically is financially beneficial for the company to fold, work with the government, and provide information to the government of alleged individual wrongdoing within the company.
5. DOJ's incentives to a corporation that causes it to fold and provide evidence to the government against alleged individual wrongdoers may be causing more harm because it pits corporations against its individual constituents.
6. We need a stronger regulatory system. Our system is broken and one just can't blame agencies like the SEC.
7. If we expect agencies like the SEC to work, Congress needs to provide them with more money to engage in real regulatory enforcement.
8. There are many good folks in DOJ, including AG Holder, who look longterm at stopping corporate wrongdoing. But there are also individuals in DOJ who fail to see the ramifications of what may seem like short-term benefits.
9. Corporate crime can be reduced if everyone - the corporation, government, and also the individual constituents would work together.
10. It would be beneficial in reducing corporate crime if there was more transparency. We all need to hear what works - when there are declinations of prosecutions, or when an agency decides not to fine a company. We can learn from the good things companies do (anonymously) and when DOJ declines to proceed against the company.
Monday, March 24, 2014
Keker and Little Receive White Collar Criminal Defense Award at NACDL White Collar Criminal Defense College at Stetson
On Saturday, March 22, the National Association of Criminal Defense Lawyers presented both John Keker and Jan Nielsen Little with the 2014 White Collar Criminal Defense Award at Stetson University College of Law in Gulfport, Fla. Keker and Little received their awards during NACDL’s White Collar Criminal Defense College at Stetson. The White Collar Criminal Defense Award is presented annually to individuals who have made a profound impact on the field of white collar criminal defense advocacy.
Keker and Little are partners at the San Francisco, Calif., law firm of Keker & Van Nest LLP. They have worked together on numerous high-profile white collar criminal cases, including former Enron CFO Andrew Fastow who was charged with over 100 counts of securities fraud and other crimes. The pair has also represented Mississippi plaintiffs’ attorney Dickie Scruggs and investment banker Frank Quattrone. In 1995, they obtained an acquittal at trial for San Francisco attorney Patrick Hallinan, charged with RICO and drug conspiracy offenses.
Presenting the award, NACDL Executive Director Norman Reimer said, “This year’s recipients of NACDL's White Collar Criminal Defense Award, John Keker and Jan Nielsen Little, partners at Keker & Van Nest LLP, are truly a dynamic duo. They are two lawyers of extraordinary talent and tenacious resolve who not only excel in advocacy for their clients, but excel also in setting the highest standards of professionalism and service to their colleagues in the defense bar and society at large.”
Keker co-founded Keker & Van Nest LLP in 1978. He represented cyclist Lance Armstrong in a case in which the Department of Justice terminated its investigation of Armstrong without filing any criminal charges. Keker is a graduate of Yale Law School and received his B.A. from Princeton University. He clerked with U.S. Chief Justice Earl Warren and served as a Marine infantry platoon leader during the Vietnam War.
Little has been a practicing criminal defense lawyer for more than 25 years. She represented a Silicon Valley executive in the country’s first stock options backdating prosecution, obtaining a dismissal of six of eight counts and a 60-day sentence on the remaining counts. Little earned her J.D. at Yale Law School and her B.A. at the University of California, Berkeley, completed a clerkship with Judge William W. Schwarzer of the U.S. District Court, Northern District of California, and worked with the U.S. Department of Justice’s Criminal Division before becoming a defense attorney.
The NACDL White Collar Criminal Defense College at Stetson is an educational “boot-camp” program for legal practitioners from across the country wishing to gain key advocacy skills and learn substantive white collar law from masters in the field.
Monday, January 20, 2014