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In Part One, we discussed the public concern over unfairness in asset forfeiture and analyzed the Supreme Court case — United States v. Bajakajian — that looked to the Excessive Fines Clause to limit the government’s authority to forfeit property. In Part Two, we consider possible reforms that would allow defendants to challenge forfeitures as disproportionate under a fairer and more appropriate analysis.
In Part One of our article (last month), we discussed the public concern over unfairness in asset forfeiture and analyzed the Supreme Court case — United States v. Bajakajian, 524 U.S. 321 (1998) — that looked to the Excessive Fines Clause to limit the government’s authority to forfeit property. We also explained that in the years since Bajakajian was decided, the decision has been invoked by the Circuit Courts of Appeal only rarely to block the government’s forfeiture claim. Why are there so few successful challenges to forfeiture under Bajakajian?
By Jonathan B. New and Victoria L. Stork
In May 2018, the Department of Justice (DOJ) announced a new policy to address a growing problem in white-collar criminal and civil enforcement. With increased…
By Robert J. Anello and Justin Roller
Part One of a Two-Part Article
What was once perceived as a straightforward limitation on the government’s significant enforcement powers has become obscured by statutes and court interpretations that tend to elongate the period for the government to act in ways that often are not transparent to even experienced criminal practitioners.
By Robert J. Stearn, Jr., Cory D. Kandestin and Christopher M. De Lillo
Delaware Bankruptcy Court Protects Communications with Financial Professionals Originating in Delaware
Because state law applies at the time a transaction is negotiated, the parties might assume — reasonably so — that state privilege law will govern communications with their attorneys and financial professionals. But what happens if, years later, a suit is filed in federal court and brings claims under federal law? Does state privilege law still apply?
By Sue Reisinger
Here’s a sure way to lose half your cooperation credit in a federal investigation: Let your in-house counsel advise employees not to cooperate with U.S. prosecutors.