Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
DOJ Pressure to Cut Loose Employees Under Investigation
Two months ago, the American Bar Association House of Delegates adopted a 'recommendation' stating opposition to prosecutors' and other enforcement officials' taking into consideration 'any of the following factors in making a determination of whether an organization has been cooperative in the context of a government investigation: 1) that the organization provided counsel to, or advanced, reimbursed or indemnified the legal fees and expenses of, an Employee; 2) that the organization entered into or continues to operate under a joint defense, information sharing and common interest agreement with an Employee or other represented party with whom the organization believes it has a common interest in defending against the investigation; 3) that the organization shared its records or other historical information relating to the matter under investigation with an Employee; or 4) that the organization chose to retain or otherwise declined to sanction an Employee who exercised his or her Fifth Amendment right against self-incrimination in response to a government request for an interview, testimony, or other information.' The resolution is available at www.abanet.org/leadership/2006/annual/dailyjournal/threehundredtwob.doc.
The recommendation is accompanied by a 'report' presenting reasons in support of the recommendation. Most of the reasons are couched in terms of the rights and legitimate interests of organizations and their employees. This article provides additional discussion of the four factors.
In our society, the presumption of innocence is not merely a rule that allocates the burden of proof at a criminal trial. It is also a rule about social status. With limited exceptions (e.g., a pre-indictment arrest or search warrant), the government is not to treat a person as a criminal unless and until he or she has formally been adjudicated guilty. What is especially offensive about the Justice Department's Thompson Memorandum, against which the ABA recommendation is particularly directed, is that it guides prosecutors to violate the presumption of innocence. It does so by telling them to use the power they have over organizations they are investigating to induce those organizations to cut off unconvicted and, indeed, uncharged individuals whom the prosecutors believe are 'culpable' from the customary assistance they otherwise would receive from their present or former organizational employers. The Memorandum thereby not only leads to violation of certain constitutional rights relating to the criminal process, as held by Judge Kaplan in United States v. Stein, 440 F. Supp.2d 315 (S.D.N.Y. 2006) and 435 F. Supp. 2d 330 (S.D.N.Y. 2006), but also ' because the presumption of innocence applies and no present or future crime is intended ' arguably violates the First Amendment freedom of organizations and their present or former employees to associate in various ways for the purpose of dealing with the government.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.