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Prosecutors and federal agents are entrusted with broad and largely unchecked authority to conduct most aspects of their investigations. For example, they serve grand jury subpoenas that compel the production of evidence and witness testimony. They can conduct physical surveillance of subjects and even introduce undercover agents and confidential informants to them in order to build prosecutions. All of this can be done without any judicial approval. However, two of the most potent investigative tools that prosecutors and agents use to build their investigations — the search warrant and the Title III wiretap — do require judicial approval under the Fourth Amendment. As some commentators (including one of the authors of this article) have observed, search warrants and wiretaps were once used primarily to investigate organized crime, drug dealing and terrorism. In recent years, however, prosecutors have employed these tools increasingly in the context of white-collar crime to the point where it is now commonplace. See, Robert H. Hotz, Jr. & Harry Sandick, “Search Warrants in White-Collar Crime Cases,” The Review of Securities and Commodities Regulation, Vol. 45 No. 12 (June 20, 2012).
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DOJ’s Cyber Fraud Initiative: A Wake-up Call That Keeps Ringing
By Randy S. Grossman, Kareem A. Salem and Kayla LaRosa
DOJ’s Cyber Fraud Initiative has been a wake-up call for companies to prioritize cybersecurity and adhere to stringent standards. By leveraging the FCA, DOJ has used a powerful enforcement tool to target a wide range of cybersecurity failures and misrepresentations. The increasing focus on cybersecurity by enforcement agencies means that robust cybersecurity practices are becoming a standard expectation, not just a best practice.
The State of Supreme Court Jurisprudence On Public Corruption
By Carrie H. Cohen and Allison M. Magnarelli
In the past decade, each time the Supreme Court has taken certiorari in a public corruption case, the court has reversed trial convictions and limited the types of conduct that constitute a federal bribery offense.
Defending Against Extradition to the United States
By Robert J. Anello and Richard F. Albert
The arm of U.S. extradition law is long. Fortunately, practitioners have defenses at their disposal that they may raise in the requested country’s courts to help either limit the scope of prosecution once extradition occurs, or to prevent it altogether.
New DOJ Self-Disclosure Pilot Program Increases Risk for Startups
By Jonathan Fahey, Jonathan P. Lienhard and Oliver Roberts
The DOJ has created new incentives for employee, or anyone, to report criminal misconduct allegedly committed by companies and their agents. Given their often laxer internal reporting structures and higher employee turnover rates, startup companies should pay particularly close attention to this new development to best mitigate legal risks.