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A little over 100 years ago, the Supreme Court declined to extend the Fifth Amendment privilege against self-incrimination to corporations responding to grand jury subpoenas for documents, establishing what has been termed the “collective entity doctrine.” Hale v. Henkel, 201 U.S. 43, 74-76 (1906) (corporate officer, who had been immunized in his individual capacity, attempted to assert Fifth Amendment right on behalf of his employer). Some Justices have expressed discomfort with the application of the collective entity doctrine to small corporations responding to grand jury subpoenas, and recent decisions by the Court have extended First Amendment rights to corporations that had previously been limited to individuals. These developments suggest that the Court, particularly with the arrival of Justice Neil M. Gorsuch, might be receptive to reconsidering the scope of the collective entity doctrine, a rule whose principal virtue seems to be that it is a bright-line, particularly in the context of small, closely-held corporations.
By Joseph F. Savage Jr. and Christopher J.C. Herbert
In an environment of aggressive federal prosecution and regulation both businesses and public officials are challenged to identify the permissible line between proper financial transactions — things like campaign contributions and business entertainment — and unlawful payments. And, in what the First Circuit called a “novel theory of Hobbs Act extortion,” public officials now have to struggle with the scope of permissible advocacy — when does advocacy for constituents become extortion?
Supreme Court’s October Term 2018 Contains Hints of Things to Come
By Harry Sandick and Tara Norris
Part One of a Two-Part Article
In its recently ended October Term 2018, the U.S. Supreme Court decided several notable criminal law decisions that will have a meaningful impact on white-collar practitioners’ work and, importantly, offer clues regarding the movement of the criminal law in subsequent terms. In this two-part article, we review several of the key decisions and consider their implications, both for practitioners in this area and for Court-watchers interested in future Court decisions.
SEC’s Reboot on Waiver Requests in Enforcement Settlements
By Robert J. Anello and Richard F. Albert
SEC Chairman Jay Clayton recently announced a change in how the SEC will consider requests for waivers of certain serious collateral consequences that would otherwise result from settlement of an SEC enforcement action. These collateral consequences, often referred to as “bad actor” or “bad boy” provisions, can vary greatly and may disqualify an entity from conducting certain business or utilizing certain means to offer securities.
By Juliet Gunev
Canadian Clean Fuel Technology Company and Former CEO Pay $4.1 Million to Settle China Related FCPA Case
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