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For companies suspected of wrongdoing, cooperating with Department of Justice (DOJ) investigations and self-disclosing their misconduct often appears to be their only option to avoid prosecution and reduce large financial penalties. But, these benefits often come at a price, especially to company employees who are caught in the middle. To gain cooperation credit for voluntary self-disclosure, companies are expected to identify all relevant facts relating to the individuals responsible for the alleged misconduct. And as part of demonstrating their cooperation to the government, companies often pressure their employees to submit to interviews, including with DOJ, or risk losing their jobs and/or indemnification of legal fees. Such scenarios, which have become prevalent in today’s corporate enforcement environment, place employees “between the rock and the whirlpool” by arguably coercing their testimony and infringing on their constitutional right against self-incrimination. See, Garrity v. New Jersey, 385 U.S. 493, 498 (1967).
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Not-So-Incidental Byproducts of 'Kelly'
By Gary Stein
Early returns are in, and they indicate that the Supreme Court’s decision in the so-called “Bridgegate” case will be an effective tool for pruning the wild overgrowth that has built up around the federal fraud statutes.
Second Circuit Ruling on Personal Benefit Test Widens Scope of Criminal Insider Trading
By Robert J. Anello and Richard F. Albert
The holding in Blaszczak significantly widens the scope of criminal insider trading. It also creates the anomaly of extending the criminal law beyond the SEC’s civil enforcement authority.
Equal Justice Should Apply to All, Including the President’s Friends
By Harry Sandick and Jacob Tuttle Newman
This article considers certain positions taken by DOJ in cases involving Roger Stone, Michael Flynn and the subpoenas duces tecum issued by the New York District Attorney’s Office in connection with its investigation into the Trump Organization.
Defending Attorneys Against Extortion Charges Presents Unique Challenges
By Bradley A. Marcus
Although the criminal prosecution of lawyer misconduct is nothing new, the recent indictment of a plaintiffs’ lawyer in Maryland and sentencing of two plaintiffs’ lawyers in Virginia illustrate the particular danger to attorneys who arguably cross the line during negotiations with potential litigation counterparties.
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