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The term “speaking indictment” refers to indictments that go beyond the Fed.R.Crim.P. 7(c)(1) requirement of a “plain, concise and definite written statement of the essential facts constituting the offense charged” — i.e., an indictment that does more than simply track the statutory charging language and state the who, what, when, where and the elements of the crime, the manner and means, and, for Section 371 conspiracies, overt acts. The use of speaking indictments is often justified as providing notice to defendants of allegations the absence of which might otherwise provoke pretrial motions to dismiss or for a bill of particulars. See Department of Justice (DOJ) Criminal Resource Manual at § 214 (“The [indictment] drafter must afford the defendant … a document … that is sufficiently descriptive to permit the defendant to prepare a defense, and to invoke the double jeopardy provision of the Fifth Amendment, if appropriate.”) (emphasis added). Indeed, prosecutors and courts often cite to “speaking indictments” as a reason to deny a defense motion for a bill of particulars. See, e.g., United States v. Schaefer, 2016 U.S. Dist. LEXIS 51897 *9-12 (N.D.Ind. April 19, 2016).
By Jonathan S. Feld and Katie J. Welch
Despite the historical trend of reduced government involvement in qui tam actions, the government is sending “mixed messages” regarding its view of FCA relators.
By Johanna Fricano
Following the Delaware Chancery Court’s ruling in In re Trulia, Inc. that effectively closed the door to 14(a) disclosure-based settlements in Delaware state court, federal courts saw an influx of 14(a) “merger objection” litigation. More often than not, these suits are quickly dismissed following the company’s issuance of a supplemental proxy with additional disclosures and the parties negotiate a mootness fee. The transaction closes and all parties move on — or so we thought. An emerging trend suggests that exposure to 14(a) claims may coming back from the near dead.
By Robert J. Anello and Richard F. Albert
The significance of the Crime Victims’ Rights Act (CVRA), which is intended to guarantee crime victims a role in federal criminal proceedings, has been highlighted in the case of Jeffrey E. Epstein, the financier accused of sexually trafficking underage girls. Because the government’s noncompliance with the CVRA in negotiating Epstein’s plea deal in 2008 led to Alexander R. Acosta losing his cabinet position as Secretary of Labor, practitioners can expect prosecutors and judges to be more focused on the CVRA going forward.
By Juliet Gunev
Microsoft and Hungarian Subsidiary Agree to Pay $25 Million to Resolve FCPA Investigations in Hungary, Saudi Arabia, Turkey and Thailand