Search Warrant Affidavits: What to Do
August 18, 2003
Federal agents descend upon a manufacturing facility of a publicly traded client that makes parts for Department of Defense contractors. The agents conduct a day-long search and drive away with hundreds of boxes of documents, as well as data downloaded from company computers. You are the company's counsel, and within 2 days you piece together the government's core theories and many of the 'facts' that caused it to conduct the search.
Fifth Circuit <i>En Banc </i> Narrows FCA
August 18, 2003
On April 1, 2003, the Fifth Circuit <i>en banc</i> filed an opinion that might seriously restrict the application of the False Claims Act (FCA) for the Department of Justice. <i>United States v. Southland Management Corp.</i>, 326 F. 3d 669 (5th Cir. 2003) (<i>en banc</i>). The court <i>en banc</i> overturned a controversial decision by a divided panel last year that essentially eliminated the materiality element of the FCA.
An Offer You Can't Refuse?
August 18, 2003
The Department of Justice is drafting defense counsel to fight its latest war: this one on corporate crime. At the beginning of this year, the DOJ effectively imposed an obligation of self-disclosure of crimes on corporations, accelerating a government-wide trend where companies, through their lawyers, are expected not only to obey the law, but also to investigate and enforce it as well.
'Red Flags and Iceberg Tips'
August 18, 2003
Congress and the Department of Justice (DOJ) are driving home an important point: A company's central management is ultimately responsible for any criminal conduct by its business divisions and employees, and must therefore implement policies and procedures to ensure that it promptly discovers and corrects any potential violations.
In the Courts
August 18, 2003
Analysis of recent important cases for your practice.
Arrest and the White-Collar Defendant
August 18, 2003
For a person under criminal investigation, the image is a frightening one. There is pounding at your front door during the early morning hours. A voice yells, 'FBI! Open the door!' You throw on clothes, head to the front door and as you open it, agents rush by you into your living room. The FBI agent with whom your attorney has been dealing for months tells you, 'We have a warrant for your arrest. You'll have to come with us.' Your spouse and children, who have been awakened by the agents, are now seated in your living room. Your hands are cuffed behind your back and you are led from your home. Remarkably, all you can think about at this moment is that your lawyer told you the government does not arrest people in these kinds of cases. Your lawyer was wrong.
Whistleblower Retaliation under Sarbanes-Oxley: It's a Crime!
August 18, 2003
The Congressional response to the scandals of Enron and its corporate cousins was not exactly laser-guided. Much ado already has been made about many provisions of the Sarbanes-Oxley Act (the Act), but one that has drawn little comment is its unprecedented, sweeping and <i>criminal</i> whistleblower law. The new criminal statute reaches far beyond the abuses that spawned the Act ' securities and accounting frauds of publicly traded companies.
Make It Go Away!
August 17, 2003
Forget about Global Crossing, WorldCom, and Enron. These are extreme examples of corporate misconduct. The more typical criminal case against a corporation involves greater ambiguity and often turns on the actions of a very few individuals, or perhaps even one employee acting alone. The vicarious liability case law that is the vehicle for all corporate prosecutions casts a very broad net. An individual need only be acting pursuant to his or her duties (or even apparent duties) in order to create criminal liability for the corporation as a whole.
To Disclose or Not to Disclose
August 17, 2003
Recent corporate accounting scandals have brought to light disturbing revelations concerning the business practices of many American companies. New — and more severe — penalties for corporate fraud in the Sarbanes-Oxley Act of 2002 have caused companies to step up their internal efforts to detect and prevent wrongdoing.
