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Argument in the Supreme Court
At oral argument on April 27, several justices seemed troubled by the government's interpretation of “corruptly persuades” and “official proceeding.” Deputy Solicitor General Michael Dreeben said Andersen's document shredding was equivalent to directing someone to “wipe down the fingerprints” at a crime scene before the police arrived, and that companies must preserve documents whenever there's a “reasonable possibility” of an impending inquiry. But Justice Scalia interrupted: “You want criminal liability to attach to that?” “You want someone to go to jail for that?” He found it “weird” that federal statutes could say it's OK to shred documents but a crime to ask someone else to shred them.
Justice Kennedy called the government's position “sweeping,” and said it will cause problems for every business in the country — a key argument made by Andersen's lawyer, Maureen Mahoney. Dreeben responded that Andersen was using its document retention policy “as a cover” for thwarting an impending investigation, and that this was an “extraordinary case.” Justice O'Connor later noted that the rule of lenity may apply. If so, that could be grounds for reversing Andersen's conviction.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.