Monday, February 11, 2008

Reply Brief in KPMG Related Case

We have seen the different briefs filed by the parties in the government's appeal of the dismissal of charges against the thirteen former KPMG partners and employees by U.S. District Judge Lewis Kaplan.  There was the government's initial brief here, followed by several briefs of the appellees (here, here, here, here, and here) and some amici briefs (here).  Now filed is the government's reply brief - a brief that totals 70 pages.  The following is an outline of the arguments:

POINT I—The Government Cured Any Sixth Amendment Violation

A. The Government Did Not Waive The Cure Argument

B. Dismissal Was Not The Most Narrowly- Tailored Remedy To Address Any Sixth Amendment Violation

POINT II—KPMG’s Decision Not To Pay The Defendants’ Attorneys Fees Was Not State Action

A. The Government Did Not Waive The State Action And Coercion Arguments

B. The State Action Doctrine Applies To The Defendants’ Claims

C. KPMG’s Decision Cannot Be Imputed To The Government

1. The Government Did Not Compel KPMG Not To Pay Fees

2. The Government Did Not Significantly Encourage KPMG’s Decision

3. The Government Did Not Participate In KPMG’s Decisionmaking Or Become Entwined In KPMG’s Management

POINT III—KPMG’s Decision To Terminate Fee Payments For Indicted Defendants Did Not Violate The Sixth Amendment

A. Standard Of Review

B. Discussion

1 . Caplin & Drysdale Controls This Issue

2. The Defendants’ Restatement Of Their Argument And Recitation Of Unrelated Sixth Amendment Authorities Do Not Change The Result

3. The Government Did Not Violate The Right To Counsel Of Choice

POINT IV—The Government Did Not Violate The Defendants’ Due Process Rights

A. The Defendants’ Claim Arises Under The Sixth Amendment And Is Barred By Graham

B. The Defendants’ Claim Does Not Implicate Fundamental Right

C. The Government’s Conduct Did Not “Shock The Conscience”

POINT V—The District Court’s Dismissal Of The Indictment Cannot Be Sustained Under The Federal

Courts’ Supervisory Powers


The Reply Brief -  Download 073042cr_u.S. v. Stein Reply Brief.pdf


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