White Collar Crime Prof Blog

Stetson Business Law Review Symposium: White Collar Crime: A Look into The Past, Present, and Future

The Stetson Business Law Review is thrilled to announce its inaugural Symposium: White Collar Crime: A Look into The Past, Present, and Future. This virtual symposium, set to be held on Friday, February 25th, 2022, will feature keynote speakers in both the academic morning session and practitioner panels in the afternoon sessions. 

The conference will include topics such as white collar crime investigations, insider trading, prosecution and punishment of offenders, discovery issues, and ethical considerations that surround the white collar criminal practice.  See the full program and speakers at these links  -

Summary, Agenda, & Speakers

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Corporate Executives - Beef Up Your Legal Teams

Deputy AG Lisa Monaco, speaking at the 36th ABA White Collar Crime Institute discussed three areas:

"I have three priorities for my time with you. First, I want to describe three new actions that the department is taking today to strengthen the way we respond to corporate crime. Second, I want to look forward and tell you about some areas we will be studying over the next months, with an eye to making additional changes to help further invigorate the department’s efforts to combat corporate crime. But before both of those, I want to set the scene by discussing trends, as well as the Attorney General’s and my enforcement priorities, when it comes to corporate crime."

Three very telling observations set the stage for the new enforcement policy and the challenges faced:

Corporate crime has an increasing national security dimension — from the new role of sanctions and export control cases to cyber vulnerabilities that open companies up to foreign attacks. Second, data analytics plays a larger and larger role in corporate criminal investigations, whether that be in healthcare fraud or insider trading or market manipulation. Third, criminals are taking advantage of emerging technological and financial industries to develop new schemes that exploit the investing public.

But she notes that these changes have been "changes of degree and not of kind."

DOJ clearly intends to focus on individuals ("Accountability starts with the individuals responsible for criminal conduct.").  And they intend to put money there ("We are also going to find ways to surge resources to the department’s prosecutors. As one example, a new squad of FBI agents will be embedded in the Department’s Criminal Fraud Section.")

The three changes will be:

• "companies must provide the department with all non-privileged information about individuals involved in or responsible for the misconduct at issue"  & "no longer be sufficient for companies to limit disclosures to those they assess to be “substantially involved” in the misconduct"
• "all prior misconduct needs to be evaluated when it comes to decisions about the proper resolution with a company, whether or not that misconduct is similar to the conduct at issue in a particular investigation." -  companies who have veered from a DPA or NPA may have issues here
• Monitors are back in

And finally - there will be a Corporate Crime Advisory Group - so it looks like the implementation of these changes are forthcoming.

With recidivism a focus on the prosecution of corporate crime, we may be seeing a lot more scrutiny of prior DPAs and NPAs.  

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"Imagining a World Without Corporate Criminal Law"

"Imagining a World Without Corporate Criminal Law" is a symposium that will generate new ideas about the value of applying criminal sanctions to collective entities. Leading scholars representing diverse viewpoints will imagine criminal law without corporate liability and trace the possible implications of such a development. Symposiasts will address whatever aspects of the question they believe to be most salient, including what would be lost or gained from successful abolition, whether civil and/or administrative sanctions can replace criminal punishment, and how to compare the experience of other countries that regulate corporations without the threat of criminal liability. Original symposium essays will be published in the Journal of Corporation Law. 

 The symposiasts will be hosted by Georgetown Law, with audience members participating via Zoom. To join virtually, please register at www.tinyurl.com/CorpCrimeEvent/. Co-sponsors for the event include the Georgetown Institute for the Study of Market Ethics and Wharton's Zicklin Center for Business Ethics Research.

Georgetown Law School in Washington, D.C. October 22 and 23.

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The Third Global White Collar Crime Institute

Guest Blogger - Dmitriy Kamensky 

The American Bar Association Criminal Justice Section Global White Collar Crime Institute convened in Prague, Czech Republic, in June 2019 to examine some to the most pressing issues in the field. The synergy and intellectual power of the two previous Global White Collar Crime Institutes in Shanghai (2015) and São Paulo (2017) has been increased in the beautiful city of Prague, while providing the participants with a deep exploratory insight into the legal complexities of white collar crime in the growing central and eastern European legal markets and beyond.

In his opening keynote address, Matthew Miner, Deputy Assistant Attorney General of the United States, U.S. Department of Justice, discussed enforcement priorities and offered case examples illustrating the increasing level of international coordination between the U.S. Department of Justice and other countries (namely – United Kingdom, Germany, Brazil, Switzerland and Czech Republic). Mr. Miner also commented on current high profile corporate crime prosecutions and informed the participants on the recent updates in the Department Policy on Evaluation of Corporate Compliance Programs. He also specifically addressed the DOJ’s zero tolerance approach to foreign corrupt practices under the FCPA framework and provided examples of two recent cases of large-scale corruption in foreign countries, facilitated by large multinational corporations, as examples of this strong-arm approach.

After Mr. Miner’s address, the Third Global Institute proceeded with the “Meet the Enforcers” panel moderated by Professor Lucian Dervan of Belmont University College of Law and featuring Mr. Miner, Mr. Matthew Wagstaff (Head of the Bribery and Corruption Division, Serious Fraud Office, United Kingdom), and Mr. Pavel Zeman (Prosecutor General of the Czech Republic). Mr. Zeman and Mr. Wagstaff, both representing high public enforcement offices in their respective countries, furthered the American-led discussion of pressing legal issues, related to white collar crime enforcement across the borders, specifically in the more harmonized European Union environment. The Institute also welcomed Dr. Adrian Jung, a Special Counsel on “Internal Investigations” to the German Federal Ministry of Justice. Dr. Jung presented a detailed overview of the drafting legislation for Germany regarding corporate criminal liability and internal investigations with a strong potential for changing the corporate criminal enforcement framework in Europe. It is worth mentioning, that a few of the discussed elements of proposed corporate criminal enforcement regime in Germany mirror the long established provisions of the U.S. corporate criminal liability doctrine.

Other panels in the intensive course of the two-day conference brought together a group of outstanding practitioners from different jurisdictions and provided detailed expert insight into the current developments of traditional and new areas of white collar crime defense bar. The panels covered such topics as Lessons Learned from the VW Internal Investigation, Data Privacy and GDPR, Extradition Process and Interpol Red Notice Enforcement, Current Global Anti-Corruption Trends, as well as Changes in Enforcement Policies after Brexit.

Though he has not yet revealed the location of the Fourth Global White Collar Crime Institute, Professor Dervan, who serves as Chair of the Institute, told participants that the next Institute will occur in 2021. I look forward to that next Institute in some new corner of the globe.

(Dmitriy Kamensky is a Professor of Law at Berdyansk State University, Ukraine and a Visiting Adjunct at Stetson University College of Law)

(DK)

Third Global White Collar Crime Institute - Prague, June 27-28, 2019

Readers of the blog might be interested in the upcoming Third Global White Collar Crime Institute, which will occur in Prague, Czech Republic on June 27-28, 2019. The Global Institute is a unique ABA Criminal Justice Section conference opportunity structured to bring together experts in the field of international white collar crime to meet and discuss cutting edge issues in a new corner of globe. The experience, therefore, offers not only insights into the latest developments in the field, but the chance to interact and network with colleagues and expand your presence in new regions of the world.

The Third Global Institute will begin with a “Meet the Enforcers” panel featuring Matthew Miner (Deputy Assistant Attorney General of the United States, U.S. Department of Justice), Matthew Wagstaff (Head of the Bribery and Corruption Division, Serious Fraud Office), and Pavel Zeman (Prosecutor General of the Czech Republic). On the second day of the Global Institute, we will also welcome Dr. Adrian Jung, who serves as Special Counsel on “Internal Investigations” to the German Federal Ministry of Justice. Dr. Jung is drafting legislation for Germany regarding corporate criminal liability and internal investigations that has the potential of changing the corporate criminal enforcement landscape in Europe. Other panels during the conference will include Lessons Learned from the VW Internal Investigation, Data Privacy and GDPR, Extradition and Red Notices, Global Anti-Corruption Trends, and Changes in Enforcement After Brexit. 

For those interested in attending, there is more information about the Global Institute on the conference webpage, including a full agenda of the program and the registration form. I hope to see many of you in Prague next month. 

(LED)

Call for Presentations - White Collar Crime Symposium

The Belmont Criminal Law Journal at Belmont University College of Law in Nashville, TN, will hold a symposium in early 2019 regarding “White Collar Crime in the 21^st Century: When Corporations and Individuals Collide.”  This year’s symposium will consider, among other things, the tensions that can develop between the interests of a corporation and the interests of an individual during a white collar criminal investigation and how these conflicts impact the representation of each party.

The symposium will occur at Belmont University College of Law on Friday, February 1, 2019, and include three academic addresses and two practitioner panels.  Professor Ellen S. Podgor, the Gary R. Trombley Family White-Collar Crime Research Professor of Law at Stetson University College of Law and editor of this blog, will deliver the keynote academic address at this year’s event.  The Belmont Criminal Law Journal is seeking two additional academics to give 30-minute presentations on topics related to this year’s theme.  Belmont University College of Law will cover travel and lodging expenses.  Further, all academic addresses presented during the symposium will be transcribed for publication in the Belmont Criminal Law Journal, which we anticipate being published in May of 2019.  Please note that the Belmont Criminal Law Journal has a policy of allowing all presenters to make edits to the transcript prior to publication to bring the text in-line with what the presenter intended to say.

Our goal is to once again bring together academics, legal practitioners, government officials, and non-profit leaders to explore a cutting-edge issue in the field of criminal law.  I hope you will consider joining us in Nashville for this interesting discussion.  Those interested in submitting a proposed topic to present at the symposium should submit a draft title and brief one page summary of the proposed topic to Lexie Ward (Editor-in-Chief of the Criminal Law Journal) at [email protected] by Monday, December 17, 2018.  Decisions regarding the submitted topics will be made by Friday, December 28, 2018. 

(LED)

ABA Criminal Justice Section White Collar Town Hall

I hope you will join me and the ABA Criminal Justice Section for a spectacular White Collar Crime Town Hall on Thursday, November 1 from 3:30pm-5:00pm at the Mayflower Hotel in Washington, D.C.  Due to the generosity of our sponsors, the program is free and will be followed by our Criminal Justice Section welcome reception at the hotel. You may register for the CLE on-site.

Below is a description of the White Collar Town Hall and the exemplary panelists who will discuss The Role of the Media in White Collar Criminal Investigations and the Mueller Probe.

The panelists will first examine the role of the media in these investigations generally, including the obligations/interests of the media in protecting the integrity of investigations, the tools available to prosecutors and defense attorneys to address media coverage during the investigative stage, and the tools and standards for fair trial protections due to pretrial media exposure. Then, the panel will delve into the Mueller probe specifically, addressing the media’s sources of information about the Mueller investigation, what the leaked information reveals about the investigation, the media’s impact on the Manafort trial, the Congressional role in providing investigative information to the public, and implications on other ongoing aspects of the investigation.

Moderator: Henry Asbill, BuckleySandler LLP, Washington, DC

Rebecca Ballhaus, Reporter, Wall Street Journal, DC Bureau, Washington, DC

Kevin Hall, Pulitzer Prize Winner, Chief Economics Correspondent and Sr. Investigative Reporter, McClatchy Newspapers

Michael Isikoff, Chief Investigative Correspondent, Yahoo News

Prof. Jessica Roth, Cardozo Law School, Reporter, ABA CJS Standards on Fair Trial and Public Discourse

In addition to our white collar program on Thursday evening, there will also be complimentary CLE programs at the Mayflower Hotel all day Friday.  Our Friday program will begin with a keynote address on plea bargaining by Judge Jed Rakoff.  This will be followed by a host of fascinating panel discussions focusing on the work of the Section and its committees.  These will include:

A Fresh Look at Plea Bargaining in our Criminal Justice System

Prosecutors as Agents of Change

GITMO Twelve Years Later

Re-Entry and Innovation

What Civilians Can Learn from the Military Experience with Sexual Assault & Harassment

Enhancing Justice: Reducing Bias – Strategies for Change in the Criminal Justice System

On Friday, we will also hold our prestigious Criminal Justice Section Awards Luncheon and Address, which occurs at 12:30pm.  The Address will be given by Hilarie Bass, immediate past President of the American Bar Association.  Ms. Bass will discuss her work creating a new organization to address issues critical to women and minorities.  These important remarks are incredibly timely given the recent launch by the Criminal Justice Section of the new Women in Criminal Justice Task Force. 

Our Friday programming will be followed by our Criminal Justice Section fall reception. 

The complete agenda is available on the Fall Institute website. 

All CLE programming, including the White Collar Town Hall, is complimentary and participants may register on-site.  Those wishing to attend the Awards Luncheon and Address should register online.  The cost of the luncheon is $50.  For those registering online, please note that website issues have resulted in improper pricing information being listed.  The correct price should populate when you move to the checkout.  If you have any difficulty registering online, please contact [email protected]   

(LED)

 

The Martin Act: A Tool for Reform or an Abuse of Power?

NYU Law School Center on the Administration of Criminal Law will be hosting a symposium titled, The Martin Act: A Tool for Reform or an Abuse of Power? On Monday, February 26, 2018 from 9:30 -2:00 p.m.  More information and to register, see here. The program is as follows:

Panel One: The Martin Act and the Need for State Action

• Harlan Levy, partner at Boies Schiller Flexner LLP and former Chief Deputy Attorney General, New York Attorney General’s Office
• Katherine Milgram, Chief, Investor Protection Bureau, New York Attorney General’s Office
• Chad Johnson, partner at Quinn Emanuel Urquhart & Sullivan LLP and former Chief of the Investor Protection Bureau, New York Attorney General’s Office
• Eric DiNallo, Executive Vice President/General Counsel at The Guardian Life Insurance Company of America, former Chief of the Investor Protection Bureau, New York Attorney General’s Office

Panel Two: Practitioners Speak: How to Handle a Martin Act Investigation

• Charles Stillman, partner at Ballard Spahr LLP
• David Zornow, partner at Skadden Arps Slate Meagher & Flom LLP
• Jeffrey Scott, partner at Sullivan & Cromwell LLP
• David Anders, partner at Wachtell Lipton Rosen & Katz LLP
• Cynthia Hanawalt, Enforcement Section Chief, Investor Protection Bureau, New York Attorney General’s Office 

Panel Three: The Martin Act: An Abuse of Power?

• James Park, Professor of Law at UCLA School of Law
• Rachel Barkow, Segal Family Professor of Regulatory Law and Policy, Faculty Director of the Center on the Administration of Criminal Law at NYU Law School
• Ellen Podgor, Gary R. Trombley Family White-Collar Crime Research Profesor, Stetson University College of Law
• James Copland,Senior Fellow, Director of Legal Policy at The Manhattan Institute
• John Gardiner, partner at Skadden Arps Slate Meagher & Flom LLP

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ABA Criminal Justice Section Second Global White Collar Crime Institute

In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China. It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field.

I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program is now available online, and it is shaping up to be another spectacular event.

The program includes the following panels:

• A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
• Navigating Cross Border Government Investigations and Prosecutions
• Trends Regarding Global Anti-Corruption Enforcement
• A View of Global White Collar Crime from the Bench
• Preparing for the Globalization of Corporate Internal Investigations
• Navigating Global Compliance Trends and global Enforcement Priorities

I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments. Register here while space is still available.

(LED)

ABA White Collar Crime Conference - Keynote Acting Assistant AG Criminal Division

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.

(esp)

ABA White Collar Conference - Pre-trial Practice in Federal Criminal Cases

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.   

(esp)

ABA CJS Hong Kong Conference - Global Investigations and Compliance

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.

Topics include:

• 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.

(LED)

ABA CJS London White Collar Crime Institute - Internal Investigations

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.  

(LED)

ABA CJS London WCC Institute - Weissmann/Steward on Enforcement

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.

(LED)

NACDL/ILR Law & Policy Symposium - May 26th

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

(esp) 

2016 ABA White Collar Crime Conference - A Few More Highlights

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.

(esp)

 

 

 

2016 ABA White Collar Crime Conference - DAG Sally Q. Yates

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.

(esp)

2016 ABA White Collar Crime Conference - Hon. Paul Friedman

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.

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ABA CJS Global White Collar Crime Institute - Keynote Remarks by DAAG Suh

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. 

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Upcoming Event -Overcriminalization

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.

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