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“The Supreme Court’s message is unmistakable: Courts should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.” See, United States v. Dubin, 27 F.4th 1021, 1041 (5th Cir. 2022) (Costa, J., dissenting). So began the powerful dissent of Judge Gregg Costa, joined by six of his U.S. Court of Appeals for the Fifth Circuit colleagues sitting en banc, which presaged the U.S. Supreme Court’s June 8, 2023, unanimous reversal in Dubin v. United States, 143 S. Ct. 1557 (2023). The dissenters then cited a string of Supreme Court criminal law decisions, many previously discussed by these authors, illustrating that the Court’s delivery of that message was “nearly an annual event,” and observed that not “once this century” has the Court adopted the “government’s broad reading … for a white collar/regulatory criminal statute.” Dubin, 27 F.4th at 1041. In its ruling in Dubin, the Supreme Court forcefully continued the trend recognized by Costa, rejecting the government’s literalist view of 18 U.S.C. Section 1028A(a)(1) that would make virtually every low-level fraud by a healthcare provider into aggravated identify theft subject to a mandatory two-year prison sentence.
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DOJ Calls On Companies to Incorporate Data Analytics In Anti-Corruption Compliance Programs
By Fotis Konstantinidis, Michael Pace and Jason Wright
This article explains the DOJ’s recent emphasis on robust data analytics in anti-corruption compliance programs, outlines how data analytics can and should be used in these programs, and suggests an approach to help legal counsel and companies determine if corporate programs will pass muster with the DOJ.
White-Collar Practitioners Weigh In On Defending Trump Indictments
By Brad Kutner
They say every defendant deserves an attorney, and that surely includes a former president, but how does a lawyer defend someone facing multiple indictments in multiple districts all while they’re running a campaign to return to the White House? Several white-collar defense attorneys who spoke with Business Crimes Bulletin’s ALM sibling The National Law Journal have some ideas.
FTC and DOJ Proposed Merger Guidelines Eye Effect On Competition
By Maydeen Merino
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have proposed merger guidelines that reflect the Biden administration’s aggressive enforcement approach to corporate acquisitions that considers not only their effect on competition but on the labor market, antitrust attorneys said.
Potential Legal Pitfalls for Public Companies Due to SEC’s New Cybersecurity Rules
By Tommy Smith
Some 16 months after first proposing rules for public companies and investment advisors, the SEC adopted new rules, chief among them that public companies disclose material cybersecurity breaches to investors within four days.
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