Thursday, March 15, 2012

NACDL White Collar Criminal Defense College at Stetson

The inaugural NACDL White Collar Criminal Defense College at Stetson opened tonight with a standing ovation for Terri MacCarthy, who spoke about cross-examination.

(esp)

March 15, 2012 in Conferences, Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Saturday, March 3, 2012

2012 ABA White Collar Crime Program - Summary of Posts

Five posts from the 2012 ABA White Collar Crime Conference in Miami Beach, Florida can be found here, here, here, here, and here. For materials from the conference, see here. Next year is Las Vegas.

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March 3, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

2012 ABA White Collar Crime Conference - Ethics

The 2012 ABA White Collar Crime Conference had two ethics panels. The first, Top Ten Reasons You’ll Wish You Had Become a Trusts & Estates Lawyer: Ethical Pitfalls and Blunders in White Collar Practice, was moderated by Professor Bruce Green (Fordham). On this panel was Helen Gredd, Daniel R. Alonso, Evan A. Jenness, and Laura Ariane Miller. Professor Green skillfully walked the panel through a hypothetical that included a host of ethical problems. The panelists did not agree on everything - which is so common when discussing ethics issues. One thing was very clear - the white collar practice comes with many ethics dilemmas and defense counsel has to consider these issues throughout all facets of the case.

The second ethics panel also emphasized the difficulty for white collar practitioners, the title of the program being the Prosecution of Attorneys in Connection With Providing Legal Advice. This panel was moderated by Morris "Sandy" Weinberg, Jr., with the panelists discussing the prosecution of the associate general counsel of GlaxoSmithKline.

Sara M. Bloom started the discussion of the Lauren Stevens case by saying that this was not a case about a discovery dispute. This, she said, was a case of statements that were made to the government. Reid H. Weingarten , in response, emphasized how his client’s actions were not criminal. It was clear that Lauren Stevens was a strong enforcer at the company and that she was well-respected as being ethical. Further, she hired well-respected outside counsel. The question was - what more, if anything, could she have done.

Hon. Roger W. Titus noted that this was the only Rule 29 he has ever granted. He said that he talked to jury after this and they were pleased with the decision. He said, no one expressed concern about it being taken away from them – they just could not understand the prosecution.

Sandy Weinberg turned the tables around on this case to discuss prosecutors who fail to turn over Brady material - he asked - is it any different from what was being alleged here? Mary Patrice Brown, from the Department of Justice, said prosecutors must self report when there is a finding of a discovery violation. One hopes that others in DOJ will take her position - unless someone is going to die – give them the evidence. She noted that it can boil down to the "intent" – and reasonable minds can differ as to what the difference is with respect to intent. In this regard she said that attorneys are treated the same as any other person, although she did note that the DOJ Manual requires approvals for prosecuting an attorney (9-2.032).

Carl D. Liggio, Sr., a general counsel for 22 years, pointed out the huge challenges today for general counsel, with so many new law and regulations. You don’t know all that you need to know, he said. He told how he outlines all the negatives more forcefully then the positives and explains how it is not prudent for them to take risks. He said when it is blatantly illegal you need to put your foot down. He expressed concern that general counsel are facing reduced budgets. But he stressed the importance of supporting good valuable employees. "If you don’t support your people you have long term problems." He noted that when he accompanies someone to the SEC, he reminds the government that they too could be liable under 1001 for being misleading.

In response to Reid Weingarten’s comment that a proffer can make it difficult to put a client on the witness stand, Sara Bloom said that prosecutors who meet the person can find it much harder to prosecute the person.

(esp)(blogging from Miami)

March 3, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

ABA 2012 White Collar Crime Conference - Environmental Enforcement

This panel was moderated by Joseph G. Block (Venable). Panelists were Richard E. Byrne (Exxon), Marc R. Greenberg (Keesal, Young, & Logan), Gregory F. Linsin (BlankRome), and Stacey H. Mitchell (Chief, Environmental Crimes Section of the Environment and Natural Resources Division of the Department of Justice). The panel covered issues related to the ongoing investigation into Deepwater Horizon, Lacey Act violations, vessel pollution, and a host of other white collar related environmental matters.

The panelists talked about how to handle legal issues arising with emergency responders. Several panelists noted that the most important thing is to mitigate damages to injured, being candid to first responders, and telling them what they need to know - such as where folks may be.

When there is death or significant environmental damage occurs, you can expect that the government might investigate. Richard Bryne said you need to presume investigation - you need to set up a privileged internal investigation

The panelists talked about how to handle searches. Some panelists on the corporate side commented that you should have a developed plan in place; get to the facility as quickly as possible; instruct individuals to cooperate with the search warrant but also telling them that there is no way they must agree to be interviewed. The importance of truthfulness was stated. From the government perspective there is concern about the safety of agents.

The corporate and defense attorney panelists discussed approaches in giving Upjohn warnings to employees being interviewed. It was noted that Upjohn warnings can trigger questions from the employees being interviewed. It may be difficult for the company because they may not know at this point whether they will cooperate with the government in resolving the matter. There is also the question of whether to appoint counsel for company employees.

(esp)(blogging from Miami Beach, Florida)

March 3, 2012 in Conferences, Environment, Investigations | Permalink | Comments (0) | TrackBack (0)

2012 ABA White Collar Crime Conference - Internal Investigations

Internal Investigations in the Age of Voluntary Disclosure

This breakout session, moderated by Keely Rankin (Dechert), concerned internal investigations. A hypothetical, about a telephone message left by a rambling anonymous whistleblower reporting on activities from another country, was used to discuss a variety of issues unique to internal investigations.

Catherine Razzano started the discussion from the perspective of corporate counsel trying to decide whether to investigate and who should do the investigation. She said that you need to do some immediate investigation just to decide how to proceed (e.g., can you do a routine audit; can you trace the call; can local counsel be of assistance). It is important to keep in mind that if it is a public company it has certain reporting obligations. If an HR person does the initial investigation, and the individual is not an attorney, you may lose the privilege. In house counsel brings a certain expertise and outside counsel brings a certain independence. It was emphasized that one needs to take a measured and consistent approach – these investigations cost money.

Angela M. Machala (Scheper Kim & Harris) looked at whether there might be a reason to launch more of an investigation and she also spoke to the advantages and disadvantages of starting with the most culpable employees in setting up interviews. Cultural differences can play a part in how you proceed.

Jonathan Leiken (Jones Day) looked at the problem of what happens when you're reviewing emails and you find more problems. He said to remember - when the movie gets played back, how will the client look the most responsive.

Ryan K. Stumphauzer (O'Quinn Stumphauzer) emphasized the importance of sitting down with the control group to define expectations.

On one hand you don’t want to give incomplete or inaccurate information and on the other hand you want to act quickly. The panelists discussed the possibility that the whistleblower could beat the company to the DOJ in reporting a problem.

One thing was clear - Dodd-Frank is very scary for counsel. Ms. Razzano notes - "[w]e want to protect our employees but we want to protect company to."

(esp)(blogging from Miami)

March 3, 2012 in Conferences, Investigations | Permalink | Comments (0) | TrackBack (0)

2012 ABA White Collar Crime Conference - Recent Trials

The official opening of the 26th Annual ABA White Collar Crime Conference began with opening remarks from Raymond Banoun, chair of the Institute, followed by remarks of the chair-elect of the ABA Criminal Justice Section, William "Bill" Shepherd of Holland & Knight. Shepherd noted how the ABA includes all aspects of criminal justice (prosecutors, judges, and criminal defense lawyers). He encouraged folks to get involved in the section.

The first panel, titled Recent Trials, featured three recent cases: Raj Rajaratnam, Loren Stevens, and the Lee B. Farkus trials.

The moderator, Ronald J. Nessim, took the speakers through several topics, including the Indictment, key pre-trial issues in each case, the media, discovery, proffers, parallel proceedings, joint defense agreements, and the trial.

Discussing the Farkus case, the prosecutor on the case -Charles Connolly-talked about the issue of how do you simplify a complex fraud scheme to make it understandable for the jury, and what schemes do you charge. Professor Bruce Rogow, defense counsel on the Farkus case, responded that the Indictment was too long and too difficult. Sara Bloom, the prosecutor handling the Lauren Stevens case said the indictment was narrowly tailed. Defense Counsel Reid Weingarten responded that he is still astonished that Lauren Stevens was indicted. Jonathan Streeter, prosecutor on the Rajaratnam case, noted that he did not try to include everything in the indictment. Simplification was a key theme throughout his comments on this panel. John M. Dowd, defending Rajaratnam, discussed the bill of particulars. He emphasized that the case was really not about wire fraud, although that was the basis for the wiretap.

The government power in these prosecutions was brought to life in the discussion of the venue issue in the Farkus case and the perp walk in the Rajaratnam case. The audience was clearly perturbed by the use of a perp walk in the Rajaratnam case, where the accused had cooperated for three years, had no record, was arrested in his apartment, handcuffed for some time at the station, and finally paraded in a perp walk. This was described by defense counsel as "toxic and prejudicial" and the audience applause to that statement sounded like there was agreement. Perp walks need to stop.

Interestingly none of the defense counsel expressed major discovery problems in their cases. Connolly, the prosecutor on the Farkus case, noted how they made the sixty million documents available to defense – they made a mirror imagine for defense and set up weekly conference calls with the defense. That said, John M. Dowd pointed out problems with items such as the affidavit for the wiretap and Bruce Rogow discussed problems with respect to cooperation in the Farkus case coming on the eve of trial. He also noted how the inability during trial to go into certain motivations by cooperating witnesses made his case difficult.

Reid Weingarten emphasized that one needs to think carefully before agreeing to a proffer. He noted that once you make a proffer it is problem putting the client on the witness stand.

Sara Bloom and Reid Weingarten briefly discussed how the government refused to waive a jury trial, despite the defense agreeing to do so in the Stevens case. There was also a discussion about joint defense agreements, and John Dowd noted that when you put a joint defense agreement in writing that is the first act of mistrust.

A key word used throughout this panel by the government was simplify - one needs to make a white collar case understandable to the jury.

(esp)(Blogging from Miami)

March 3, 2012 in Conferences, Insider Trading, Prosecutions | Permalink | Comments (1) | TrackBack (0)

2012 ABA White Collar Crime Conference- Back to Basics - Sentencing

The opening session of the ABA Annual White Collar Crime program was a back to basics sentencing program. This program was moderated by Jodi L. Avergun (Cadwalader) who did a wonderful job walking the panel participants through the basics of white collar sentencing. She noted that many feel the sentences in white collar cases have no relation to the actual crime charged and in this regard she noted that Congress, this year, directed the Commission to review some of the white collar crime sentences.

Eric A. Tirschwell (Kramer, Levin, Naftalis & Frankel LLP) provided a historical background on the development of the sentencing guidelines, from mandatory to advisory guidelines, with a specific focus on the fraud guidelines. He covered key cases like Booker, Gall, Kimbrough, and Rita and also the 3553 factors that play a focal part of the sentencing framework. Moving specifically to white collar cases, he explained the basics of the fraud table found in 2B1.1 of the guidelines and talked about several recent white collar cases like two of my favorites, Parris and Adelson. Tischwell noted that it is important to calculate the guidelines range as low as possible, argue for a variance, and maybe for a departure as well, explain why the sentence is "sufficient but not greater than necessary" (SBNGN) to satisfy sentencing purposes.

For anyone who has never heard a presentation by Hon. Beryl A. Howell, (U.S. District Court, District of Columbia) it’s a must do. She always comes with incredible statistics and information. This time was no different. Hon. Howell looked at what the Sentencing Commission is doing and what are the trends that we are seeing. She focused on three areas: 1) what is actually happening with white collar crime defendants around the country 2) why statistics are important 3) what is coming next.

She started by doing something that most folks providing statistics on white collar crime fail to do – she defined what would be included within this term. Then she presented some fascinating statistics. Of particular note is that white collar sentences are going up (average in 2007 was18 months; pre-2011 shows 24 months). This is not surprising since the average guideline minimum has also increased (average in 2007 was 23 months; pre-2011 shows 31 months). Yes, the number of white collar cases being sentenced within the guidelines has decreased (68.2% in 2007 and pre-2011 it’s 47.7%), but it is also important to note that the government sponsored below guidelines range has increased (13.7 in 2007 and pre-2011 it’s 22.9%). Judges sentencing above the guidelines went up slightly (2.2% in 2007 and pre-2011 it’s 2.4%) Some statistics on the plea to trial numbers were also provided by Hon. Howell. The preliminary 2011 cases showed that 93.5 % of the cases had a plea and 6.5 % went to trial. The average sentence for pleas in white collar cases was 21 months and those that went to trial had an average sentence of 62 months. But it should be noted that the average guideline minimum for plea cases was 29 months and it was 111 months for the cases that went to trial.

Andrew C. Lourie (Kobre & Kim) offered tips for sentencing. He stressed the importance of putting important points in on sentencing memo.

Edward C. Nucci (U.S. Attorneys' Office, Southern District of Florida) presented the prosecution perspective (of course not speaking on behalf of the government). He stressed the importance of post-Booker variances. He noted how a prosecutor can want to work out as much as possible prior to the actual hearing.

Karen A. Popp (Sidley Austin), the final speaker spoke about chapter eight of the guidelines -organizations. She stressed the importance of having an effective compliance program, and not just a paper program.

This was an incredible opening to the white collar crime conference. More blog posts will follow.

(esp)(blogging from Miami, Florida)

March 3, 2012 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 22, 2012

The NACDL White Collar Criminal Defense College at Stetson announces inaugural White Collar Criminal Defense Award recipients

The NACDL White Collar Criminal Defense College at Stetson has announced the recipients of the inaugural White Collar Criminal Defense Award. Jan Lawrence Handzlik and Janet Levine have both been selected by the NACDL White Collar Criminal Defense College advisory board to receive the award, which honors individuals who have made a profound impact on the field of white collar criminal defense advocacy.  Read more here.

(esp)

February 22, 2012 in Conferences, Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 14, 2012

NACDL White Collar Criminal Defense College at Stetson

If you are planning to attend the NACDL White Collar Criminal Defense College at Stetson, please book a room quickly - the room block will soon be closed.

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

More Information and to registrar here

Faculty

A. Brian Albritton, Phelps Dunbar, LLP

Henry W. Asbill (Hank), Jones Day

Joe Bodiford, BodifordLaw

Barry Boss, Cozen O'Connor

Ellen C. Brotman, Montgomery McCracken

Robert M. Cary, Williams & Connolly LLP

Vince J. Connelly, Mayer Brown

Lucian E. Dervan, Southern Illinois University School of Law

Donna Lee Elm, Federal Public Defender, Middle District of Florida

James E. Felman, Kynes, Markman & Felman, P.A.

Jack E. Fernandez, Zuckerman Spaeder, LLP

Todd Foster, Cohen & Foster, P.A.

David Gerger, Gerger and Clarke

Nina J. Ginsberg, DiMuroGinsberg, PC

Lawrence S. Goldman, Law Offices of Lawrence S. Goldman

John Wesley Hall, Jr., John Wesley Hall Little Rock Criminal Defense

A. Jeff Ifrah, Ifrah Law

Anthony A. Joseph, Maynard Cooper and Gale, PC

Frank Klim, Stetson University College of Law

John F. Lauro, Lauro Law Firm

Bruce Lyons, Lyons and Sanders Chartered

Terence F. MacCarthy, Distinguished Professorial Lecturer, Stetson

Edward A Mallett, Mallett and Saper, L.L.P.

Bruce Maloy, Maloy, Jenkins, & Parker

David Oscar Markus, Markus and Markus, PLLC

James McComas, Retired

Michael D. Monico, Monico, Pavich and Spevack

Jane W. Moscowitz, Moscowitz and Moscowitz, P.A.

William Nortman, Akerman

Kevin J. Napper, Carlton Fields

Cynthia Eva Orr, Goldstein, Goldstein and Hilley

Patricia A. Pileggi, Schiff Hardin, LLP

Barry J. Pollack, Miller & Chevalier

Mark P. Rankin, Shutts and Bowen, LLP

Shana-Tara Regon, NACDL

Michele A. Roberts, Skadden Arps Slate Meagher and Flom, LLP

Charles H. Rose III, Stetson University College of Law

Kerri L. Ruttenberg, Jones Day

Gail Shifman, Shifmangroup

Adam P. Schwartz, Carlton Fields

William N. Shepherd, Holland & Knight LLP

Neal R. Sonnett, Law Offices of Neal R. Sonnett, PA

Ed Suarez, The Law Offices of Ed Suarez, P.A.

Larry Thompson, Former Deputy Attorney General U.S. Department of Justice and Vice President of PepsiCo

Gary R. Trombley, Trombley & Hanes

Albert A. Vondra, PricewaterhouseCoopers, LLP

Morris “Sandy” Weinberg, Jr., Zuckerman Spaeder LLP

Peter H. White, Schulte Roth & Zabel LLP

Solomon L. Wisenberg, Barnes & Thornburg LLP

(esp)

February 14, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, December 2, 2011

Upcoming Conferences

ABA, Differences with Distinction, Understanding the Important Dissimilarities Between State and Federal RICO Statutes and their Impact in Litigation, Dec. 6, 1-2 P.M. - Download Differences with Distinction 12.6.11 (1)

ABA White Collar Conference, Miami Beach, Feb. 29 - March 2 here

NACDL White Collar Criminal Defense College at Stetson, Gulfport, Florida, March 15-20 here

(esp)

December 2, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, November 21, 2011

NACDL White Collar Criminal Defense College at Stetson

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

More Information and to registrar here

Faculty

A. Brian Albritton, Phelps Dunbar, LLP

Henry W. Asbill (Hank), Jones Day

Joe Bodiford, BodifordLaw

Barry Boss, Cozen O'Connor

Ellen C. Brotman, Montgomery McCracken

Robert M. Cary, Williams & Connolly LLP

Vince J. Connelly, Mayer Brown

Lucian E. Dervan, Southern Illinois University School of Law

Donna Lee Elm, Federal Public Defender, Middle District of Florida

James E. Felman, Kynes, Markman & Felman, P.A.

Jack E. Fernandez, Zuckerman Spaeder, LLP

Todd Foster, Cohen & Foster, P.A.

David Gerger, Gerger and Clarke

Nina J. Ginsberg, DiMuroGinsberg, PC

Lawrence S. Goldman, Law Offices of Lawrence S. Goldman

John Wesley Hall, Jr., John Wesley Hall Little Rock Criminal Defense

A. Jeff Ifrah, Ifrah Law

Anthony A. Joseph, Maynard Cooper and Gale, PC

Frank Klim, Stetson University College of Law

John F. Lauro, Lauro Law Firm

Bruce Lyons, Lyons and Sanders Chartered

Terence F. MacCarthy, Distinguished Professorial Lecturer, Stetson

Edward A Mallett, Mallett and Saper, L.L.P.

Bruce Maloy, Maloy, Jenkins, & Parker

David Oscar Markus, Markus and Markus, PLLC

James McComas, Retired

Michael D. Monico, Monico, Pavich and Spevack

Jane W. Moscowitz, Moscowitz and Moscowitz, P.A.

William Nortman, Akerman

Kevin J. Napper, Carlton Fields

Cynthia Eva Orr, Goldstein, Goldstein and Hilley

Patricia A. Pileggi, Schiff Hardin, LLP

Barry J. Pollack, Miller & Chevalier

Mark P. Rankin, Shutts and Bowen, LLP

Shana-Tara Regon, NACDL

Michele A. Roberts, Skadden Arps Slate Meagher and Flom, LLP

Charles H. Rose III, Stetson University College of Law

Kerri L. Ruttenberg, Jones Day

Gail Shifman, Shifmangroup

Adam P. Schwartz, Carlton Fields

William N. Shepherd, Holland & Knight LLP

Neal R. Sonnett, Law Offices of Neal R. Sonnett, PA

Ed Suarez, The Law Offices of Ed Suarez, P.A.

Larry Thompson, Former Deputy Attorney General U.S. Department of Justice and Vice President of PepsiCo

Gary R. Trombley, Trombley & Hanes

Albert A. Vondra, PricewaterhouseCoopers, LLP

Morris “Sandy” Weinberg, Jr., Zuckerman Spaeder LLP

Peter H. White, Schulte Roth & Zabel LLP

Solomon L. Wisenberg, Barnes & Thornburg LLP

(esp)

November 21, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, November 18, 2011

CALL FOR NOMINATIONS FOR WHITE COLLAR CRIMINAL DEFENSE AWARD

CALL FOR NOMINATIONS FOR

WHITE COLLAR CRIMINAL DEFENSE AWARD

The NACDL White Collar Criminal Defense College at Stetson University College of Law is an intensive “boot-camp” style program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

In conjunction with this event, the Advisory Board of the White Collar Criminal Defense College announces a call for nominations for its White Collar Criminal Defense Award. The following criteria have been established for the award:

  • Nominees shall have distinguished him or herself in the white collar defense bar;
  • Length of service to the white collar bar and sustained excellence will be considered;
  • Nominees should have enjoyed a recent success in a trial or other major result involving a white collar matter;
  • Membership in NACDL is not required but is encouraged and will be considered; and
  • Nominees may be self-nominated or nominated by others.

All nominations should be submitted to Daniel Weir at dweir@nacdl.org. The deadline for submissions is December 15, 2011.

More information about the NACDL White Collar Criminal Defense College at Stetson, including an agenda, list of faculty, and registration form can be found here.

(esp)(blogging from Washington, D.C.)

November 18, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Saturday, November 12, 2011

NACDL White Collar Criminal Defense College at Stetson

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

More Information and to registrar here

Faculty (which includes 6 past-presidents of NACDL) here.

Seminar Location:
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707

Hotel Accommodations:
Tradewinds Island Grand Beach Resort
5500 Gulf Boulevard
St. Pete Beach, FL 33706
www.tradewindsresort.com

(esp)

November 12, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, November 4, 2011

Social Media and Securities Fraud

The Sixth Annual ABA National Institute on Securities Fraud is taking place in New Orleans, and a topic this morning was social media. Yes, social media is a compenent even of securities cases.

Philip Hilder is moderating a panel of Robert B. Hirschhorn, Eric Dezenhall, Carrie Johnson, and Kara Scannell. Robert Hirschhorn noted how we now have information savvy jurors. Eric Dezenhall noted that "if you put a freelance writer on the jury, you should expect them to blog." Carrie Johnson noted how facebook may be used by reporters, and she gave the example of how it was used for a story following events at Virginia Tech. The panel stressed the speed of communication today and how one can receive information quicker than previously, for example via Twitter.

(esp)(blogging from New Orleans)

November 4, 2011 in Conferences, Securities | Permalink | Comments (0) | TrackBack (0)

Saturday, September 3, 2011

Upcoming Conferences

NACDL, 7th Annual Defending the White Collar Case, September 22-23, 2011, NYC

ABA, Foreign Corrupt Practices Act 2011, October 27-28, 2011, DC

ABA, Sixth Annual National Institute on Securities Fraud, Nov. 3-4, 2011, New Orleans

(esp)

September 3, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, August 21, 2011

Last Call - Sept. 1 Deadline - Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration

Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration

On Oct. 27-28, 2011, the ABA and the AALS will present a joint conference, Reducing Reliance on Incarceration, at the Liaison Capitol Hill Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday Oct. 27th, is a workshop for scholarly papers relating to the conference theme. Participants will present their work in a roundtable format. Abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must commit to attending both days of the conference, which will include a plenary and multiple break-out sessions on the topic of reducing reliance on incarceration. For a description of the program, please visit here  Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee. To apply to workshop a paper, please email an abstract of 500 words to both gshay@law.wne.edu  and mvitiello@pacific.edu  by Sept. 1, 2011. Space is limited and presenters will be chosen by members of the organizing committee.

(esp)

August 21, 2011 in Conferences | Permalink | Comments (1) | TrackBack (0)

Sunday, August 7, 2011

Upcoming Conferences

NACDL, 7th Annual Defending the White Collar Case, September 22-23, 2011, NYC

ABA, Foreign Corrupt Practices Act 2011, October 27-28, 2011, DC

ABA, Sixth Annual National Institute on Securities Fraud, Nov. 3-4, 2011, New Orleans

(esp)

August 7, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, July 11, 2011

Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration

On Oct. 27-28, 2011, the ABA and the AALS will present a joint conference, Reducing Reliance on Incarceration, at the Liaison Capitol Hill Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday Oct. 27th, is a workshop for scholarly papers relating to the conference theme. Participants will present their work in a roundtable format. Abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must commit to attending both days of the conference, which will include a plenary and multiple break-out sessions on the topic of reducing reliance on incarceration. For a description of the program, please visit http://www.americanbar.org/content/dam/aba/events/criminal_justice/2011colloquium.authcheckdam.pdf. Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee. To apply to workshop a paper, please email an abstract of 500 words to both gshay@law.wne.edu  and mvitiello@pacific.edu  by Sept. 1, 2011. Space is limited and presenters will be chosen by members of the organizing committee.

(esp)

July 11, 2011 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “From Push to Shove: Defending Against Higher Sentences,” Friday, June 17, 2011

Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)

The seminar closed with a discussion of sentencing strategies. Moderated by Jeffery Robinson, the panel consisted of David Angeli, Ellen Brotman, U.S. District Court Judge Robert T. Dawson, Vito de la Cruz, and Jan Nielsen Little.

Mr. de la Cruz started the discussion by suggesting that because the guidelines still carry considerable weight, plea agreements should (where possible) be negotiated to impose a statutory cap on the possible penalty. With regard to the guidelines, Mr. de la Cruz discussed looking at the way in which the guideline was drafted. If the guideline was not based upon a Sentencing Commission study and empirical evidence, the case law is clear that the district court can reject the guideline based upon policy alone.

Ms. Brotman seconded those comments, and noted the excellent resources made available by federal defender offices to assist in analyzing whether the guideline at issue may be subject to challenge on this basis.

Judge Dawson noted the reason behind the guidelines was to establish some sense of fairness between sentences, but were intended to be recommendations only. Post-Booker, the “real work” at sentencing is with regard to variances.

Mr. Angeli suggested that the “deconstructing the guidelines” approach may be effective with regard to 2B1.1 guidelines, because those guidelines have not evolved due to careful Sentencing Commission study. Ms. Brotman followed up by noting that this kind of attack should be supported by empirical evidence in favor of the sentence that is being sought, rather than just relying on omissions by the Sentencing Commission. She additionally noted that the initial research upon which the guidelines were based was flawed, because it only included defendants who were sentenced to prison.

Mr. Angeli discussed Pepper v. U.S., a Supreme Court case which held that post-1st-sentencing, pre-re-sentencing rehabilitative efforts can be taken into consideration. He noted that the Court held that the sentencing guideline which did not make good policy sense could and should be disregarded. The holding in Pepper suggests that a number of other policy statements are now subject to challenge.

Ms. Little noted that the Sentencing Commission has compiled a huge variety of statistics, available on their website, which can be used to make arguments for lenience. For example, she noted that statistics supporting a relatively high frequency of variances with regard to similarly situated defendants can be cited to request a similar variance. Ms. Brotman suggested that the Sentencing Commission can remain relevant by making this information even more readily available.

Ms. Brotman discussed the application of the four purposes of sentencing listed in 18 U.S.C. 3553 apply to white collar cases. The negative use of the same factors by the government was discussed by Mr. Robinson and Ms. Little.

Ms. Brotman discussed the Ninth Circuit’s review of white collar sentences, and noted with concern that a number of the Judges have expressed that discretion in white collar cases should be reined in because Judges are more inclined to be sympathetic to white collar defendants because they are more likely to actually be similar to them with respect to their background.

The panel noted (with audience agreement) that Assistant United States Attorneys are almost uniformly asking for guideline sentences. Ms. Brotman noted that this rigid policy often eliminates them from the discussion regarding the appropriate sentence.

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June 17, 2011 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Defending the Individual in FCPA Cases: Managing the Company, Dealing with the Facts,” Friday, June 17, 2011

Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)

The penultimate discussion was moderated by Marc J. Rochon, who was joined by Mary Carter Andrues, Pamela R. Davis, Jeffrey H. Knox, and C.E. Rhodes.

This panel dealt with a hypothetical company which had a deferred prosecution agreement with SEC/DOJ involving small value facilitation payments which were actually bribes. The hypothetical involves an email sent to the company’s auditing committee by a sales agent in Egypt alleging the bribes are taking place.

Following the disclosure to the audit committee, outside counsel is retained, and (due to the deferred prosecution agreement) DOJ/SEC needs to be informed of the situation.

Mr. Rhodes indicated that the company should retain counsel for the whistleblower in response to hypothetical questions involving that individual’s exposure and rights.

Ms. Andrues, acting as counsel for the hypothetical whistleblower, reviewed the information she would want to have access to, and the potential issues she would need to address, including the relevant law in the foreign country (Egypt) that could impact the investigation.

Mr. Knox indicated that he (acting as hypothetical prosecutor) would potentially provide background information to counsel for the whistleblower. However, both Ms. Andrues and Ms. Davis (acting as hypothetical whistleblower counsel) indicated that it was unlikely they would contact the prosecutor, although both indicated that the call could be useful to obtain the lay of the land.

Mr. Rochon proposed a one-way flow of information from company counsel to counsel for the whistleblower as a way to get the attorney up to speed without compromising company’s counsel’s ability to remain as counsel in the event the whistleblower ends up cooperating with the government.

Another employee, an accountant, also needs counsel, and has given statements indicating involvement and potential additional exposure. The panel agreed that counsel for that individual might not allow an interview of that client, although the employee will almost certainly be terminated. Ms. Davis indicated that he may be facing termination even after an interview. The panel agreed that if the accountant still wanted to go forward with the interview, he should be thoroughly advised regarding the risks. However, the panel expressed significant doubts that the company would facilitate investigation.

Another hypothetical client was then discussed: in-house counsel who failed to act on the whistleblower’s initial complaints and who’s (at a minimum) negligence appears to have led to this problem. Because this hypothetical client’s version of the events was unsupported by documents or other witnesses, the panel agreed that this individual would clearly not be allowed to be interviewed by anyone, regardless of employment consequences.

During these exchanges, it was repeatedly discussed that the company’s agreement with DOJ/SEC required them to disclose information it discovered, and that this factored into every decision regarding allowing the various clients to be interviewed.

Mr. Rhodes commented regarding employment futures of these individuals. All appear to be unlikely to remain with the company, but the in-house counsel is most likely to be fired immediately. The accountant was deemed likely to be terminated after another interview. The tension between the interests of the company and the individual appeared especially intense in this scenario.

With regard to interview requests by DOJ/SEC, Ms. Andrues and Ms. Davis expressed skepticism regarding the amount of protection and value of proffer letters. In the event that the interviews were to take place, and a recording was required and defense counsel was not going to be given a copy, it was unlikely that the interview would occur. Mr. Knox noted that admissions by officers during interviews would be considered admissions by the company.

In response to a comment from the audience regarding the dangers of conducting investigations in foreign countries, Mr. Rhodes and Mr. Rochon agreed that local legal issues will always influence investigations and should be carefully considered.

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June 17, 2011 in Conferences, FCPA | Permalink | Comments (0) | TrackBack (0)