HIPAA: Data Trade Prosecutions on the Horizon?
October 01, 2003
Mention HIPAA (the Health Insurance Portability and Accountability Act) to a typical CEO, and boredom sets in. Many corporate leaders remain unaware of the risks of HIPAA non-compliance, but the Act includes a criminal statute that creates vast potential exposure for health care providers and other players in the health care "data trade."
In the Courts
October 01, 2003
Reviews of key cases of interest to your practice.
After the Guilty Plea
October 01, 2003
The onslaught of guilty pleas in post-Enron financial fraud cases has created new challenges for defense attorneys in the parallel civil litigation that inevitably accompanies criminal charges. Attorneys for the civil plaintiffs are quick to strike as soon as the guilty pleas are disclosed, demanding that the pleading defendant provide the documents and testimony previously denied to them by the invocation of the Fifth Amendment, and seeking to collect a prompt judgment.
Targeting Mutual Funds
October 01, 2003
In last month's article, we pointed out that successful enforcement efforts against investment banks have emboldened state and federal authorities to target mutual funds - a fact that has been borne out in the national press over the past few weeks. More precisely, the funds' investment advisers are the targets. We believe regulators' inquiries will most likely examine two general categories, fund administration and marketing. Last month's article discussed fund administration; the following concentrates on trade allocations, and advertising and marketing.
The Incredible Shrinking Privilege Strategies for Corporate Criminal Defense After the Thompson Memorandum
October 01, 2003
The headlines reporting multi-million dollar corporate guilty pleas often miss a point widely understood among white-collar practitioners: The driving force behind the corporate plea is often not the merits of the government's charge, but the corporation's need to reach a global settlement resolving administrative and criminal sanctions that could put the company out of business. Considering the role of prosecutorial discretion and the draconian consequences of a corporate conviction, corporations often have little choice but to plead guilty and cooperate with the government. Recently, the feds have raised the ante in this process by defining "cooperation" to include waiving the attorney-client privilege. Thus, corporations and counsel alike are forced into a Hobson's choice where at least partial waiver may be inevitable.
In the Courts
Analyses of the latest rulings of importance to your practice.
Proactive Fraud Prevention
<b><i>Part One of a Two-Part Article</i></b> Way back in the 80s, companies in the U.S. Defense industry determined that it was in their best interests to band together and develop the Defense Industry Initiatives as a method of policing themselves during a time when their industry was fraught with fraud and corruption. As an aftermath, ethics and compliance programs have been developed and implemented by the majority of U.S. companies. To further entice companies to establish an effective and proactive program designed to detect and, to the extent possible, prevent violations of law The Federal Sentencing Guidelines for Organizations, passed in late 1991, rewards these companies with relief when sentenced for violations of law.
'Theft or Bribery': The Circuit Split Over the Federal Nexus Element
When federal prosecutors encounter corrupt conduct by a state or local official, they may reach for a potentially useful tool ' Congress's attempt to prevent theft or bribery 'concerning programs receiving Federal funds,' 18 U.S.C. ' 666. In applying this statute, however, a federal prosecutor's reach must not exceed Constitutional limits on what Congress may grasp. Defining those limits has proved particularly challenging in recent years, as three circuits have inferred different Constitutional limits on ' 666's enforcement.
E-mail: The Prosecutor's New Best Friend
Over the past 10 years, e-mail has replaced the telephone as the favored method of communication within Fortune 500 companies. The typical employee might send or receive dozens of e-mails per day, with the amount of e-mail traffic growing exponentially the higher up the employee sits on the corporate ladder. In a large company, the CEO might receive hundreds of e-mails daily, leaving to an assistant the task of 'screening' them. This explosive growth in e-mail has not been lost on prosecutors. In case after case, prosecutors are securing convictions with carelessly written e-mail.
