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Never the Twain Shall Meet?
The June 2005 acquittal of HealthSouth founder and Chief Executive Officer Richard M. Scrushy on all charges in a high-profile federal corporate fraud prosecution was widely considered a surprising setback for the Department of Justice (DOJ). But even before the final acquittals in Scrushy, the trial judge's finding that the government's civil and criminal investigations had “improperly merged” resulted in the suppression of Scrushy's SEC deposition and the dismissal of three perjury charges based upon that testimony. United States v. Scrushy, 366 F. Supp.2d 1134, 1137 (N.D.Ala. 2005). Judge Karon Bowdre's decision provides an opportunity to review the law governing the proper conduct of parallel proceedings, and to ask when co-operation between civil enforcement and prosecutorial authorities contravenes those standards.
The SEC's Investigation
The SEC's investigation of Scrushy commenced in the fall of 2002 and originally focused on possible violations of insider trading rules. In February 2003, the FBI announced it was opening a similar criminal inquiry. The SEC noticed Scrushy's deposition for Friday, March 14, 2003, at its Atlanta District Office, although Scrushy's attorneys subsequently asked that the deposition be moved to Birmingham.
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