The Evolving Rules Governing the Use of Investigators
December 21, 2007
Most attorneys involved in the investigation or defense of complex business crimes will turn to private investigators to assist them in developing the facts. Given the breadth and nature of many modern criminal investigations, the use of private investigators is almost becoming a necessity. Yet many basic rules governing their use are unclear or in flux, especially when it comes to monitoring or gathering electronic information.
Challenging the Federal Sentencing Guidelines on Policy Grounds
December 21, 2007
The federal Sentencing Guidelines can lead to 'patently absurd' punishments in white-collar cases. United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006) (Rakoff, J.). But judicial discretion in sentencing, strongly reaffirmed by the Supreme Court in Kimbrough v. United States, No. 06-6330 (Dec. 10, 2007), and Gall v. United States, No. 06-7949 (Dec. 10, 2007), has opened an important avenue for advocacy in business crime cases.
In the Courts
November 27, 2007
Cases of interest to you and your practice.
Energy Markets Face Expanded Enforcement
November 27, 2007
The Energy Policy Act of 2005 (EPACT) gave FERC the authority to assess penalties under the Natural Gas Act and Federal Power Act of up to $ 1 million per day per violation. FERC has expanded its Office of Enforcement, called for heightened industry compliance programs and self-disclosure of misconduct, and is newly focused on enforcement rather than on traditional ratemaking. Two years into the EPACT era, FERC has used its newly acquired authority vigorously.
House Passes Attorney-Client Privilege Bill
November 27, 2007
The proposed Attorney-Client Privilege Protection Act of 2007 would prohibit the Justice Department and other federal agencies from: 1) demanding, requesting, or conditioning the treatment of a private party on the disclosure of communications protected by the attorney-client privilege or as attorney work product; and 2) taking into account when making any civil or criminal charging decision as to an organization or a person affiliated with it: a) any valid assertion of the attorney-client privilege or work-product protection; b) payment for attorneys' fees for an employee of the organization; c) a joint-defense or common-interest agreement between the organization and one of its employees; d) the sharing of information between the organization and one of its employees; or e) the organization's failure to take action adverse to an employee who has refused to cooperate with the government.
Corporate Employees Need Protection from Overzealous Prosecutors
November 27, 2007
The KPMG tax shelter case brought to light heavy-handed attempts by federal prosecutors to exert economic coercion on indicted former KMPG partners and deprive them of the counsel of their choice, of resources that would otherwise be available for their defense, and of their Fifth Amendment right against compelled self-incrimination. Judge Lewis A. Kaplan's landmark decisions on motions by various defendants held many of the government's actions unlawful. <i>See United States v. Stein</i>, 488 F Supp. 2d 350 (S.D.N.Y. 2007); 435 F. Supp. 2d 330 (S.D.N.Y. 2006). But what are counsel for corporate employees to do when prosecutors attack their clients' reputation and pocketbook, but there's no judge to complain to?
Deferred Prosecution Agreements and Privileged Documents
October 30, 2007
XYZ Inc. settles a federal criminal investigation by signing a deferred prosecution agreement (DPA). Now its attorneys think the company and its privileged documents are safe so long as XYZ stays out of trouble. But have they closed the barn door after the horse has run away? A little-noticed holding by Judge Lewis A. Kaplan in the KPMG tax shelter case suggests that a DPA may open privileged documents to defendants in criminal trials and even to civil litigants.
