January 21, 2010
General Re Non-Prosecution Agreement - Commentary
DOJ and General Re have entered into a non-prosecution agreement that provides for a monetary payment of $19,500,000 to the US Postal Inspection Service Consumer Fraud Fund, as well as other payments. The agreement and details of it can be found in Andrew Longstreth's article in AMLAW Litigation titled, General Re Resolves DOJ and SEC Claims Based on Fraudulent AIG Transactions. Background on the situation can be found in Amir Efrati's article in the, WSJ, GenRe Reaches Deal With Justice Department in AIG Case. The agreement itself has some of the typical provisions we have seen in deferred and non-prosecution agreements, but also has some that are not found in all of the agreements of the past.
- Like the typical non-prosecution agreement, the agreement is provided by a letter between the parties and is not part of a court document.
- Like the typical deferred and non-prosecution agreement, the DOJ has the "sole discretion" to determine if there is a failure to comply. I should note here that in a recent co-authored article on deferred prosecutions, written with Professor Candace Zierdt , we note the contractual problems with one party having the sole discretion to determine if there is a breach of the terms in the agreement. See Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing A court does not get to review the validity of whether there has in fact been a breach of the agreement.
- In the cooperation section of the agreement, there is a provision providing that this cooperation section does not apply if it's a prosecution because of a breach of the agreement. It is good to see DOJ recognizing that they can't ask a party to be their own prosecutors.
- The agreement includes an "internal corporate remediation measures" section. Although corporate monitors have often been seen in past agreements, this agreement has some peculiar aspects. For one the agreement has some very specific remediation statements. For example, the Berkshire Hathaway CFO and Director of Internal Audit will be attending the General Re Corporation's Audit Committee meetings. Additionally a Complex Transaction Committee "will maintain the power to reject any proposed transaction from being written by General Re or any of its insurance or reinsurance company affiliates within the Gen Re Group." The specifics here make one wonder to what extent the government is inserting itself within private corporate matters. They aren't just saying you have to comply with the law, they are providing an infrastructure to make them accountable.
- The agreement prohibits the company from making certain statements -
"General Re agrees that neither it nor its directors and executive officers, nor any person authorized to speak for them, will make, cause others to make, or acknowledge as true any factual statement inconsistent with the factual descriptions of the Agreed Statement of Facts in Attachment A. Any such public statement inconsistent with the Agreed Statement of Facts shall, subject to the cure rights below, constitute a breach of this Agreement."
- General Re also agreed to run press releases or other prepared public statement in connection with this agreement by the DOJ, and they need to receive the seal of approval from DOJ prior to its release. Can the government include an agreement that infringes on first amendment rights? It isn't the first time that we have seen such a provision.
September 02, 2009
Associate AG Tom Perrelli called it "the largest health care fraud settlement ever in the history of the Department of Justice." (see here) Pfizer, Inc. agreed to pay $2.3 billion to settle a case "arising out of civil and criminal allegations relating to Pfizer’s allegedly illegal promotion of certain drugs, most notably Bextra."
Its subsidiary, "Pharmacia & Upjohn Company [ ] agreed to plead guilty to a felony violation of the Food, Drug and Cosmetic Act for misbranding Bextra with the intent to defraud or mislead." (See DOJ Press Release) "Pharmacia & Upjohn will also forfeit $105 million, for a total criminal resolution of $1.3 billion." "In addition, Pfizer has agreed to pay $1 billion to resolve allegations under the civil False Claims Act that the company illegally promoted four drugs . . . ." The DOJ Press Release notes that "[a]s part of the settlement, Pfizer also has agreed to enter into an expansive corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services. That agreement provides for procedures and reviews to be put in place to avoid and promptly detect conduct similar to that which gave rise to this matter." On the Pfizer website one finds the press release of the company. It states in part:
"... A portion of the civil payments will be distributed to 49 states and the District of Columbia pursuant to agreements with each state’s Medicaid division.
"The terms of the DOJ settlement require Pfizer to pay approximately $503 million to resolve civil allegations concerning past promotional practices related to Bextra. In addition, the company will make payments to resolve other civil allegations involving past promotional practices as follows: approximately $301 million for Geodon, approximately $98 million for Zyvox, and approximately $50 million for Lyrica. The settlement also includes a civil payment of approximately $48 million to resolve allegations relating to certain payments to healthcare professionals involving nine other Pfizer medicines."
See also Devlin Barrett (AP), law.com, Pfizer to Pay Record $2.3 Billion Penalty Over Off-Label Promotions
August 15, 2009
"The Tip of the Iceberg" - A Plea in the UBS Swiss Accounts
UBS entered into a deferred prosecution agreement with the government (see here). The agreement included that UBS would provide the U.S. government "with the identities of, and account information for, certain United States customers of UBS’s cross-border business." Things initially moved slowly as an agreement needed to be reached regarding the release of information in light of privacy laws (see here). But with these two steps apparently settled according to press reports, it is not surprising to see an individual reaching a plea agreement with the government for failure to disclose UBS Swiss bank accounts to the IRS. A DOJ Press Release reports that this individual "admitted that he failed to pay at least $200,000 in federal income taxes and that he now owes the government interest and penalties."
One has to wonder if the government action of proceeding against individuals with Swiss accounts that were not properly reported to the IRS, will assist the US economy. Eileen C. Mayer, Chief of IRS-Criminal Investigation, called this prosecution "the tip of the iceberg."
July 12, 2009
Two DOJ Offices Moving on White Collar Cases
From opposite sides of the U.S., two U.S. Attorneys Offices are actively involved in white collar cases. Obviously many other offices have white collar investigations, prosecutions, guilty pleas, and sentencings -- but for the past week these two offices have been in the news a good bit.
In the Southern District of New York a press release tells that there was a plea by "a former tax partner at the BDO Seidman accounting firm, [who] pleaded guilty . . . to three counts of a Superseding Indictment that charge[d] him with conspiracy to defraud the United States in connection with tax shelter transactions involving clients of his firm and of the law firm Jenkens & Gilchrist ("J&G"); tax evasion in connection with a multimillion-dollar tax shelter that [he] helped sell to a client of his firm; and a corrupt endeavor to obstruct and impede the due administration of the internal revenue laws."
The Southern District of New York also had a press release telling about charges against six in an alleged 140 million dollar investment fraud and stock manipulation scheme, a press release telling about a Connecticut investor who was "found guilty in [a] scheme to bribe government officials in Azerbaijan," and a press release telling of a "Smart Online CEO and two others [who were] found guilty of manipulation of company stock."
On the opposite coast, in the Central District of California, a press release tells of a major indictment in the medical arena. The press release states that "Federal and State authorities . . . arrested 20 defendants accused of being part of [a] ring that defrauded Medi-Cal out of nearly $4.6 million by using unlicensed individuals to provide in-home care to scores of disabled patients, many of them children with cerebral palsy or developmental disabilities. " The press release says that the 41 count indictment included "42 defendants" and that it was "part of an investigation called Operation License Integrity, a two-year investigation conducted by the Federal Bureau of Investigation, the U.S. Department of Health and Human Services Office of Inspector General, and the Office of the California Attorney General-Bureau of Medi-Cal Fraud and Elder Abuse."
(esp)(blogging from The Hague, Netherlands)
July 08, 2009
Not a Good Day for Blagojevich
John Harris, who served as Blagojevich's chief of staff, entered into a plea agreement that includes cooperation. The agreement states:
Defendant agrees he will fully and truthfully cooperate in any matter in which he is called upon to cooperate by a representative of the United States Attorney's Office for the Northern District of Illinois. This cooperation shall include providing complete and truthful information in any investigation and pre-trial preparation and complete and truthful testimony in any criminal, civil or administrative proceeding. Defendant agrees to the postponement of his sentencing until after the conclusion of his cooperation.
See Jeff Coen & Dan Mihalopoulos, Chicago Breaking News, Ex-Blagojevich aide pleads guilty, will testify
(esp)(w/ a hat tip to Mark Johnson)
Addendum, NYTimes, (AP) Blagojevich Aide Pleads Guilty in Corruption Case
May 12, 2009
Novo Nordisk Deferred Prosecution Agreement
A DOJ Press Releasereports on a deferred prosecution agreement entered into by "Novo Nordisk A/S (Novo), a Danish corporation based in Bagsvaerd, Denmark." The agreement calls for the company to pay a penalty of "$9 million penalty for illegal kickbacks paid to the former Iraqi government." This case is part of the DOJ's investigation "into the UN Oil-for-Food program." The DOJ filed "one count of conspiracy to commit wire fraud and to violate the books and records provisions of the Foreign Corrupt Practices Act (FCPA)." The DOJ Press Release states:
"According to the agreement and the information filed today, between 2001 and 2003, Novo paid approximately $1.4 million to the former Iraqi government by inflating the price of contracts by 10 percent before submitting the contracts to the United Nations for approval and concealed from the United Nations the fact that the price contained a kickback to the former Iraqi government. Novo also admitted it inaccurately recorded the kickback payments as "commissions" in its books and records."
March 15, 2009
Hitachi Displays Ltd. - The Information
It was mentioned here, that a DOJ Press Release reported that Hitachi Displays Ltd would be entering a guilty plea to "fixing prices for LCD panels sold to Dell, Inc." The plea would include a 31 million dollar fine. Business Week offers this "snapshot" of the company here. The DOJ posted the Information in the case which states that "[v]arious corporations and individuals, not made defendants in this Information, participated as coconspirators in the offense charged in this Information and performed acts and made statements in furtherance of it." The Information also alleges that "[d]uring the period covered by this Information, the defendant and its coconspirators sold and distributed TFT-LCD in a continuous and uninterrupted flow of interstate and foreign trade and commerce to customers located in states or countries other than the states or countries in which the defendant and its coconspirators produced TFT-LCD."
March 12, 2009
There were no surprises in Bernie Madoff entering a guilty plea today as the indications of this had been broadcast for several days. (see here and here) To read a transcript of the proceedings see here. He admits his guilt and explains how he concealed his fraud. He also states that "other business [his] firm engaged in, proprietary trading and market making, were legitimate, profitable, and successful in all respects. Those businesses were managed by [his] brother and two sons." Perhaps some were surprised that he was taken immediately into custody. In many white collar cases the accused remains free on bail while the case is pending. Individuals have remained free in some cases after conviction while the case is pending on appeal (see here). The applause in the courtroom upon sending Madoff to jail says it all - the victims wanted retribution and they wanted it now.
See Chad Bray & Amir Efrati, WSJ, Madoff Pleads Guilty to Massive Fraud; Diana B. Henriques & Jack Healy, Madoff Goes to Jail After Guilty Pleas to All Charges
(esp) (w/ thanks to Whitney Curtis)
December 04, 2008
The Pardon Watch
Many people are glued to the news watching to see who will receive the holiday pardons, and the commutations of sentences too, as President Bush leaves office. Many have their hopes up that their names will appear on the list. Will it be names that have appeared in the news like: Conrad Black, former Governor Ryan, Michael Milken, Bernie Ebbers, or Former Rep. Randy "Duke" Cunningham?
President Bush should not be ashamed to grant pardons and commute sentences as he leaves office. But which cases deserve this treatment is the question. Picking out friends and political cronies is just plain wrong.
Good candidates for a reduction of sentence are those who received harsher sentences because they were victims of a public cry for retribution in a time when people were reacting to extraordinary surrounding events. CEOs who received long prison sentences when the business took a downturn, those receiving astronomically high sentences in the mortgage fraud crisis, John Walker Lindh (one has to wonder what tactics were used when he was brought to the US), and others may fit this category as deserving of a reduction in sentence. But equally persuasive are those who have no constituency and remain in prison because of sentencing guidelines that did not account for their motive, or failed to notice that they received no benefit. The women who were carrying drugs out of a misguided love for someone who was using them as a mule, are among the cases that need examination.
It may be easy for President Bush to say, I don't need this hassle, and just leave without pardoning folks. But, hopefully, he will use his power wisely to correct injustices that remain on the books.
Check out this interview with Margy Love in the National L.J., See Marcia Coyle, A leading legal authority on pardons talks about the need for transparency — and how to get to the top of the list
Addendum, Yahoo News (Reuters) Martha Graybow & Randall Mikkelsen, Ex-WorldCom chief Ebbers seeks clemency from Bush
September 04, 2008
Detroit Mayor Pleads - Commentary
The media is reporting that Detroit Mayor Kwame Kilpatrick will plead guilty (see below). Looking at the plea reported by the press, one can understand why he would plead guilty. The risk of trial can be enormous, both in possible punishment, cost of legal counsel fees, and personal family and psychological costs. This plea offers finality to the situation - something that will probably help the mayor and those around him move on with their lives. It removes the uncertainly that has probably been hanging over his head for some time now. For the government, the resolution allows them to move onto the next case and report a statistic of conviction.
Some will likely claim the sentence is too light, and others will argue that the conviction he now bears is too heavy. But even when the judicial system offers some precision, such as the cases operating under the federal sentencing guidelines, many are unhappy.
Here, this state case provides a resolution that demonstrates that a state can investigate and prosecute state officials. The federal government should take note of this, as they are often quick to step in and prosecute state corruption.
The case also demonstrates the importance of the press and investigative reporting. Without the press, one has to wonder the extent to which this case would have happened. With a diminishing press nationwide, it raises concerns about the future of the ability of the people to have a watchdog on certain government conduct.
Cory Williams & Ed White, Atlanta Jrl Constitution, Detroit mayor agrees to plead guilty, resign
M. L. Elrick, Jim Schaefer, Joe Swickward, Ben Schmitt, Detroit Free Press, Mayor: 'I Lied Under Oath' - He'll resign, serve 120 days in jail, pay $ 1 M restitution
Addendum - Susan Saulny, New York Times, Detroit Mayor Pleads Guilty, Agrees to Resign
August 11, 2008
The Pleas Keep Coming in Houston
A press release of the U.S. Attorney's Office in the Southern District of Texas reveals that a broker plead guilty earlier this month to conspiracy to commit mail fraud and securities fraud. The release states that the defendant was involved in "the promotion and marketing" as part of a "mortgage investment program." The defendant "admitted he made false representations to investors when he promised 12 percent interest, 1st liens on real estate, 72-hour liquidity and 70 percent loan to value ratio."
Mary Flood of the Houston Chronicle now reports that the government has secured a second plea in this case. In an article titled, "2nd Houston broker in fraud case pleads to conspiracy" she tells of the recent plea entered by this individual to the crime of conspiracy.
(esp) (w/ a hat tip to Bill Olis)
June 22, 2008
A Hot Summer for a Cincinnati Icemaker
A DOJ Press Release reports on the Cincinnati packaged-ice manufacturer, The Home City Ice Company (Home City Ice), pleading guilty to a one-count information under the Sherman Act, charging the company with conspiracy. (The Plea Agreement). The press release states that "Home City Ice and co-conspirators carried out the conspiracy by:
- Participating in meetings and conversations to discuss packaged-ice customers and territories in southeastern Michigan and the Detroit metropolitan area;
- Agreeing during those meetings and conversations to allocate packaged-ice customers and territories in southeastern Michigan and the Detroit metropolitan area;
- Exchanging information during those meetings and conversations, for the purpose of monitoring and enforcing adherence to the agreements to allocate customers and territories in southeastern Michigan and the Detroit metropolitan area; and
- Refraining from competing for packaged-ice customers and territories that were so allocated."
The Agreement has a cooperation section that calls for the company to cooperate with the government. In this regard, the Agreement also provides for a reduction of the fine if the cooperation is satisfactory to them. It states:
"If the United States determines that the defendant has provided substantial assistance in any investigation or prosecution, and has otherwise fully complied with all of the terms of this Plea Agreement, it will file a motion, pursuant to U.S.S.G. §8C4.1, advising the sentencing judge of all relevant facts pertaining to that determination and requesting the Court to impose a fine departing from the lower end of the guideline range of $24 million to $48 million in light of the factors set forth in U.S.S.G. §8C4.1(b)(1)-(3). The defendant acknowledges that the decision whether it has provided substantial assistance in any investigation or prosecution is within the sole discretion of the United States. It is understood that, should the United States determine that the defendant has not provided substantial assistance in any investigation or prosecution, or should the United States determine that the defendant has violated any provision of this Plea Agreement, such a determination will release the United States from any obligation to file a motion pursuant to U.S.S.G. §8C4.1, but will not entitle the defendant to withdraw its guilty plea once it has been entered. The defendant further understands that, whether or not the United States files a motion pursuant to U.S.S.G. §8C4.1, the sentence to be imposed on it remains within the sole discretion of the sentencing judge."
This case may be the start of more-to-come as there is "an ongoing investigation into the packaged-ice industry."
May 12, 2008
Cuomo Settles With Some Lawyers
In a press release New York Attorney General Andrew Cuomo announced that he had reached a settlement with "a western New York law firm and a Capital Region attorney ending improper employment arrangements with school districts and various Boards of Cooperative Educational Services (“BOCES”)."
The release states:
“In recent months my office has uncovered long-term and systemic fraud on the public pension and benefits systems which have potentially wasted millions of taxpayer dollars,” said Attorney General Cuomo. “Lawyers representing school districts and BOCES across the state were given public benefits they were not entitled to. Some lawyers have received illegal perks for years and were improperly put on district payrolls. My office will continue to follow this investigation wherever it leads, and we will put an end to this abuse.”
It also states:
"Cuomo’s ongoing investigation of pension fraud includes reviews of employment practices at all school districts across the state and all 37 BOCES, and has expanded to include more than 4,000 local governments and special districts across New York state. The investigation has already revealed that many lawyers had remained on school districts’ or BOCES’ payrolls for such extended periods of time, or were included on the payrolls of so many school districts or BOCES simultaneously, that they accumulated substantial credits in the New York State Employees’ Retirement System."
May 08, 2008
The Government is Working With Air
Two airline related cases reached agreements -
1. A plea agreement was filed in United States v. Japan Airlines International Co., Ltd. on a Sherman Antitrust Act, 15 U.S.C. § 1, matter. The criminal fine of $110 million is offered with cooperation by the company. There are a few interesting aspects of this plea -
- It actually outlines an agreed upon payment plan -
"The United States and the defendant agree to recommend, in the interest of justice pursuant to 18 U.S.C. § 3572(d)(1) and U.S.S.G. §8C3.2(b), that the fine be paid in the following installments: within thirty (30) days of imposition of sentence -- $20 million; at the one-year anniversary of imposition of sentence ("anniversary") -- $20 million; at the two-year anniversary -- $20 million; at the three-year anniversary -- $20 million; at the four-year anniversary -- $20 million; and at the five-year anniversary -- $10 million; provided, however, that the defendant shall have the option at any time before the five-year anniversary of prepaying the remaining balance then owing on the fine."
One can't help but think if the accountants were considering tax implications here.
- It accounts for the need to secure testimony from those outside the United States -
"16. The United States agrees that when any person travels to the United States for interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for meetings with counsel in preparation therefor, the United States will take no action, based upon any Relevant Offense, to subject such person to arrest, detention, or service of process, or to prevent such person from departing the United States. This paragraph does not apply to an individual's commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S.C. § 1001), making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503, et seq.), or contempt (18 U.S.C. §§ 401-402) in connection with any testimony or information provided or requested in any Federal Proceeding."
2. A DOJ/Antitrust Press Release notes that "[t]he former highest-ranking Qantas Airways Limited cargo executive employed in the United States has agreed to plead guilty, serve 8 months in jail, and pay a criminal fine for participating in a conspiracy to fix rates for international air cargo shipments."
March 27, 2008
In the News - Wecht, Kilpatrick, Prosecutor, University President
Pittsburgh Post Tribune - Wecht Jury at Impasse?
Freep.com - Will Beaty Make a Plea Deal (she is the former chief of staff to Detroit Mayor Kilpatrick).
Martha Neill, ABALaw JrlNewsNow - 20-Year Texas Prosecutor Convicted of Stealing Office Funds
Houston Chronicle - Plea Deal for former Texas Southern University President Priscilla Slade - she will pay the fine and do no time ($127,672.18 fine) here (represented by Mike DeGeurin)
(esp) (w/ a Stetson Hat Tip to Frank Klim on the last)
March 14, 2008
Richard F. "Dickie" Scruggs Plea
A few weeks ago, Professor Peter Henning questioned whether there might be a plea by one of the defendants in the Scruggs case. (see here) He stated,
"Senior U.S. District Judge Neal Biggers rejected the remaining motions filed by Dickie Scruggs and his two co-defendants, son Zach and Sidney Backstrom, clearing the way for trial at the end of March on the charges related to an alleged attempted bribe by confederate Tim Balducci. With that goes the best chance Backstrom may have of avoiding a trial in which the spillover from the government's Rule 404(b) bad acts evidence is likely to paint the defendants as three peas in a corrupt pod."
Henning stated, "[s]o the question now is whether Backstrom will break ranks and agree to cooperate against Dickie and Zach."
Well Backstrom did break ranks, but the unexpected part is that Dickie Scruggs decided to tag along. In a surprising move, "Dickie"Scruggs entered a plea. The document is a short one - all of four pages - and it is a plea agreement with few strings attached.
Scruggs will plead guilty to one count - conspiracy to corruptly influence a state court judge, a charge that carries a maximum of five years. In return the government will dismiss the remaining five counts (Counts Two - Six). There is no agreement as to sentencing, there is no agreement as to cooperation, and there is no agreement with regard to other jurisdictions proceeding against him. The agreement boldly states that "[t]he defendant is pleading guilty because defendant is in fact guilty of the charges."
Why? Well for one, Scruggs' admission provides a basis for arguing that he should receive a decrease in sentence for acceptance of responsibility. With new Supreme Court decisions like Gall and Kimbrough, Scruggs has the ability to try and convince the court to give a sentence below the guidelines.
Plea Agreement - Download scruggs_plea_agreement.pdf
(esp) (w/ thanks to Stetson's Whitney Curtis)
Scruggs Pleads Guilty
March 06, 2008
Plea Agreement Reached for Founder of Band
The founder of the Backstreet Boys, Lou Pearlman (see here), plead guilty to "two counts of conspiracy to commit an offense against the United States (Counts one and two), one count of money laundering (Count three), and one count of presenting or using a false claim in a bankruptcy proceeding (Count four)." (Plea Agreement here) The press release of the United States Attorney's Office for the Middle District of Florida notes that Pearlman will be cooperating with the government and will "help identify any assets that may be available for restitution to victims of his criminal conduct." In addition to providing restitution to victims, the plea also provides that he "is also required to forfeit to the United States immediately and voluntarily any and all assets and property."
March 01, 2008
Plea in Writer's Guild Conspiracy Case
A press release of the U.S. Attorneys' Office of the Central District of California tells that "[a] former assistant administrator of a Writers Guild fund and another woman were charged" "with conspiring to embezzle $17,228.61 by creating a bogus beneficiary of a union fund that paid union members for their works that were sold, distributed and aired abroad." The charges were by a one count information and were followed with a plea agreement.
February 21, 2008
Deferred Prosecution Agreement with Flowserve
A press release of the DOJ states that "Flowserve Corporation (Flowserve) has agreed to pay a $4 million penalty as part of an agreement with the U.S. government regarding charges brought in connection with an ongoing investigation related to the United Nations Oil for Food program." Flowserve notes the agreed upon penalty on their website as being "a fine, profit disgorgement and related prejudgment interest to the SEC totaling $6,574,225 and a penalty to the DOJ of $4,000,000."
DOJ notes that "[t]he Information [filed by the government] charges that Flowserve Pompes engaged in a conspiracy to commit wire fraud and to violate the books and records provisions of the Foreign Corrupt Practices Act."