Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
How to Make the SEC Disgorge Exculpatory Evidence
In the post-Enron world, the SEC is ratcheting-up the stakes in many of its cases. With millions of dollars in increased funding and hundreds of additional staff, it is bringing more cases, seeking harsher penalties, and generally litigating more aggressively. If recent press releases are indicative, it is also increasingly coordinating its civil enforcement activities with criminal investigations by the Department of Justice. As one SEC district administrator stated in a recent newspaper interview: “People are looking for heads. And we're going after them.”
The SEC's ever growing prosecutorial assertiveness means that defense counsel in SEC civil actions need to compel the SEC — by negotiation or court motion — to produce impeachment evidence, ie, evidence that directly proves innocence (Brady material) and proof that undermines the evidence supporting the SEC's theory of the case (Giglio material – see Giglio v. United States, 405 U.S. 150 (1972)). Federal prosecutors are required to produce impeachment evidence during a criminal case, but the SEC does not readily produce it in a civil action, even though it is asking courts to impose crippling fines, order disgorgement of ill-gotten gains, and impose lifetime employment bans based upon allegations of fraud. Moreover, SEC civil proceedings often set up a criminal case, with its deposition transcripts becoming the roadmap for conviction. Thus, the same due process that compels disclosure of exculpatory evidence in criminal cases should apply in proceedings initiated by the SEC.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.