Law Commons^™

Constraining Monitors, Veronica Root

Veronica Root

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Peter R. Reilly

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Enforcing Integrity, Katrice Copeland

Katrice Bridges Copeland

Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those …

Teaching The Art Of Defending A White Collar Criminal Case, Katrice Copeland

Katrice Bridges Copeland

This Article discusses the author's experience with effectively teaching a white collar crime course.

In-House Counsel Beware!, Katrice Copeland

Katrice Bridges Copeland

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation …

Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight

Jared J Hight

The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily …

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

The Death Penalty’S “Finely Tuned Depravity Calibrators” Fairness Follies Of Fairness Phonies Fixated On Criminals Instead Of Crimes, Lester Jackson

LESTER JACKSON

It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.” In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving. Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.” It is argued here that this assumption is indefensible both in theory and in practice. As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.” Right and wrong are not determined in the same …

International White Collar Crime And Deferred Prosecution Agreements, Lucian Dervan

Lucian E Dervan

In October 2013, the American Bar Association Criminal Justice Section (“ABA CJS”) convened its 2nd annual International White Collar Crime conference in London, United Kingdom. In an auditorium filled almost to capacity, audience members representing practitioners, corporations, enforcement agencies, and academia listened intently to discussions regarding a myriad of topics, including enforcement trends, international internal investigation strategies, and global whistleblower incentives. The large audience and strong interest in the subject of the conference reiterated the growing importance of matters related to international white collar crime in an ever-increasingly globalized business environment.

One of the topics that drew much discussion in …

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Of Declining Prosecution Of Elite Crime, Mary Kreiner Ramirez

mary k ramirez

Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their position of power results in massive deadweight losses for the entire economy as a result of their crimes. Further, this undermines the legitimacy of the rule of law and encourages …

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Expressed By Exercising Discretion To Decline Prosecution Of Elite Crime, Mary K. Ramirez

mary k ramirez

Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning Expressed by Exercising Discretion to Decline Prosecution of Elite Crime Professor Mary Kreiner Ramirez Article Abstract Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Further, this undermines …

Fcpa Sanctions: Too Big To Debar?, Dru Stevenson

Dru Stevenson

The Foreign Corrupt Practices Act (FCPA) criminalizes bribery of foreign government officials; enforcement actions against corporations under the FCPA have been increasingly significantly in the last few years. There is an ongoing problem, however, with the sanctions for FCPA violations: enforcement agencies (DOJ and SEC) have limited themselves to fines, civil penalties, and occasional imprisonment of individual violators. Debarment from future federal government contracts, even temporarily, is an unused sanction for FCPA violations, even though Congress provided for this punishment by statute. Debarment would be a far more potent deterrent than fines and penalties, if the government were serious about …

Federal Oil Price Controls In Bankruptcy Cases: Government Claims For Repayment Of Illegal Overcharges Should Not Be Subordinated And “Penalties” Under 11 Usc §726(A)(4), Thomas Schweitzer

Thomas A. Schweitzer

No abstract provided.

An Honest Mistake: How Consolidating The Circuits Could Define The Borders Of Honest Services Fraud, Jorge R. Delgado

Jorge R Delgado

No abstract provided.

The Ongoing Milberg Weiss Controversy, Lonny Hoffman, Alan Steinberg

Lonny Hoffman

In this paper we revisit the ongoing controversy surrounding the Milberg Weiss prosecution. Our paper responds to an important, recent empirical study by Michael A. Perino that claims to have found evidence to support the government’s assertion (made without evidentiary support) that class members were in fact injured by the payments Milberg made to the named representatives. Notwithstanding the carefully constructed and rigorous study Perino has authored, we argue that the evidentiary proof of harm he claims to have found simply cannot withstand scrutiny. We raise several methodological critiques of the study. Although we did not have access to Perino’s …

Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume

Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …

Coporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This article address a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, represented primarily by the American Bar Association, the Association of Corporate Counsel, and the National Association of Criminal Defense Lawyers, on the one side, and the United States Department of Justice, on the other. The fight is over federal prosecutors’ escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department views privilege waiver as a legitimate and very important tool in its post-Enron battle …

From Hard Labour To Spies V The Queen: Prosecuting Corporate Officers Under The Crimes Act, Alex Steel

Alex Steel

While the Australian Corporations Law appears to provide a comprehensive scheme for the criminal liability of directors, officers and auditors of corporations, State Crimes Acts have significant offences directly aimed at corporate officer wrongdoing. This article provides a detailed analysis of the elements of these offences, with a concentration on the Crimes Act 1900 (NSW) and the High Court decision of Spies v The Queen (2000) 74 ALJR 1263. The article also places the offences in their historical context and examines the degree of use of the offences.