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When Prosecutors Fight (with Each Other)
The rise in white-collar prosecutions has been accompanied by an escalation of fights between prosecutors. In 2003, the Oklahoma Attorney General indicted WorldCom and its CEO, Bernard J. Ebbers, even though WorldCom was based in Mississippi, had filed for bankruptcy, and the Department of Justice (DOJ) had already indicted and secured the cooperation of several WorldCom executives as part of its ongoing investigation of Ebbers. Plainly angry, the U.S. Attorney for the Southern District expressed his 'disappointment' that 'we were not told that charges were imminent as we have enjoyed a cooperative relationship with the Attorneys General of other states.' This year, the U.S. Attorney for New Jersey declined to prosecute a prominent political party broker in a bribery investigation ' and blamed the State Attorney General's Office's investigation for having botched the case. In a leaked letter, the U.S. Attorney complained that a 'federal indictment is not appropriate now, in part because the state investigation was materially hampered by poor oversight, inexplicable strategic decisions and a failure to fully develop potential evidence.'
The inevitable tension, if not enmity, that arises when multiple prosecutors chase the same target presents potential opportunities for the white-collar defense counsel. True, the client's perspective might be similar to that of a prey stalked by hungry carnivores. But his or her counsel should carefully assess whether a client's case can, in fact, be advanced by exploiting a law enforcement turf battle.
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.