Keep Internet Disclosures From Costing Your Company
With securities claims involving improper Internet disclosures on the rise, a company would be wise to institute a review process, carried out by a qualified person (general counsel or compliance officer), to assure that its Internet disclosures are accurate, complete, and appropriate. Following are some questions that should be asked as part of an Internet review, along with suggestions for 'common sense' measures for reducing a company's exposure and keeping pace with Web evolution.
When Prosecutors Fight (with Each Other)
The rise in white-collar prosecutions has been accompanied by an escalation of fights between prosecutors. The inevitable tension, if not enmity, that arises when multiple prosecutors chase the same target presents potential opportunities for the white-collar defense counsel. True, the client's perspective might be similar to that of a prey stalked by hungry carnivores. But his or her counsel should carefully assess whether a client's case can, in fact, be advanced by exploiting a law enforcement turf battle.
A Guide to Effective Brady Motions
Too often, criminal defense attorneys file boilerplate '<i>Brady</i> motions' seeking in essence 'any and all information which may be favorable to the defendant and material to the issue of guilt or punishment.' <i>Brady v. Maryland</i>, 373 U.S. 83 (1963). Prosecutors respond in cookie cutter form that they are 'aware of their <i>Brady</i> obligation and will disclose such evidence when and as appropriate.' This might be on the eve of trial, mid-trial, or even post-trial. If truly pressed at the motion stage with a detailed <i>Brady</i> request, some prosecutors and courts have relied on <i>Strickler v. Greene</i>, 527 U.S. 263, 280 (1999), as grounds for denying the defense request.
Is the White-Collar Defense Attorney Headed for Extinction?
In the 3 years since Former Deputy Attorney General Larry Thompson's expansion of the Principles of Federal Prosecution of Business Organizations (the 'Thompson Memorandum' or 'Memorandum'), the number of front-page corporate prosecutions and record fines have continued to grow. Prior <i>Business Crimes Bulletin</i> articles have discussed the impact of the Memorandum on the role of defense counsel, including the effects of waiver of corporate attorney-client privilege. However, the privilege is not all that is disappearing.
Is Your Hotline AAA-Rated?
Many companies and organizations have hotlines that are needlessly weak or even ineffective, and they often don't even know it. Unfortunately, there are no up-to-date, authoritative standards for hotlines. This has forced Securities and Exchange Commission registrants and their auditors to use an unusually high degree of judgment in evaluating the effectiveness of hotlines for Sarbanes-Oxley '404 reporting. Non-registrants are more vulnerable to 'phantom hotline syndrome.'<br>Some entrepreneurs, and their advisers, may not be impressed by the need for a hotline at an e-business, but they're mistaken about the importance of this tool in the current environment of ever-increasing regulation and scrutiny of business practices.
Can Fed. R. Crim. P. 17(c) Even the Playing Field?
As the pace and scale of federal white-collar prosecutions grow, an inherent inequality in the process threatens the fundamental fairness of the criminal justice system: the uneven access to information. The government typically spends years investigating with the grand jury and using subpoena powers, immunity offers, and foreign treaties to gather virtually any document or testimony it wants. Moreover, because the government has no obligation to subpoena exculpatory records, it can purposely sanitize its case, avoiding subpoenaing documents that are helpful to the defendant.
