The 'Unindicted Co-Conspirator'
April 25, 2008
The criminal justice process can be arcane, but one term is recognizable to the public. An indictment is a formal accusation by a grand jury that an indicted individual has committed a crime. While damning, the indicted defendant nonetheless has the constitutional right to say to the government, 'Prove it,' and, if the government fails, to be cleared of all criminal wrongdoing. Unlike the defendant who has a right to defend himself, the unindicted co-conspirator is not on trial but confined to a limbo in which vindication is never possible.
Potential Criminal Liability for Subprime Lending Practices
March 28, 2008
In light of the complex and opaque nature of the subprime mortgage market, government investigators are probing the valuation and disclosure decisions made by market participants at multiple levels. It is not yet clear what charges prosecutors will assert to prove fraud claims against dishonest subprime market participants.
'Loss' in the Air Will Not Do
March 28, 2008
Sky-high loss enhancements are increasingly scrutinized in a post-<i>Booker</i> world. Drawing on civil securities law, recent decisions in several circuits endorse an approach holding a defendant responsible for only the portion of victims' losses that was proximately caused by the offense. Some courts' critical analyses bode well for future sentencings.
Wining and Dining Foreign Officials
March 28, 2008
Lucent Technologies Inc. recently secured a non-prosecution agreement from the DOJ and settled an enforcement action with the SEC for conduct related to travel and entertainment expenses incurred on behalf of Chinese government officials. This article examines the Lucent settlement together with prior FCPA enforcement activity related to travel and lodging, and offers some practical advice for compliance counsel.
So What Does Your Fidelity Policy Actually Cover?
February 29, 2008
Businesses purchase fidelity insurance to cover their losses from crime such as employee theft and forgery. This need is usually most pronounced for banks and other financial service firms, where employees have access to enormous amounts of money. For these policyholders, misplaced trust in a resourceful employee can result in millions of dollars disappearing from the policyholder or its clients with only a few keystrokes.
In the Courts
February 27, 2008
In-depth analysis of recent rulings.
Negotiating Confidentiality Agreements with the Government
February 27, 2008
In years past, a corporation could assume that, when it produced documents in response to a Department of Justice (DOJ) subpoena, there were limited risks that such documents would be disclosed to an entity outside of the investigation unless the government used them as exhibits in court proceedings. Two factors in recent years have changed that set of expectations and significantly raised the likelihood that documents produced to the government could end up in the hands of plaintiffs' lawyers, competitors, the news media, and others.
Obtaining Testimony and Evidence from Overseas Witnesses
February 27, 2008
The defense of white-collar crime increasingly involves the need to obtain evidence from witnesses located abroad. Without careful planning, exculpatory evidence may remain out of the reach of a defendant for whom such evidence is the only thing standing between him and a prison sentence.
