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A little over 100 years ago, the Supreme Court declined to extend the Fifth Amendment privilege against self-incrimination to corporations responding to grand jury subpoenas for documents, establishing what has been termed the “collective entity doctrine.” Hale v. Henkel, 201 U.S. 43, 74-76 (1906) (corporate officer, who had been immunized in his individual capacity, attempted to assert Fifth Amendment right on behalf of his employer). Some Justices have expressed discomfort with the application of the collective entity doctrine to small corporations responding to grand jury subpoenas, and recent decisions by the Court have extended First Amendment rights to corporations that had previously been limited to individuals. These developments suggest that the Court, particularly with the arrival of Justice Neil M. Gorsuch, might be receptive to reconsidering the scope of the collective entity doctrine, a rule whose principal virtue seems to be that it is a bright-line, particularly in the context of small, closely-held corporations.
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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.
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.
By Robert J. Anello and Richard F. Albert
The Supreme Court’s Dubin decision is another worthy entrant in the long running series of SCOTUS decisions applying judicial restraints where prosecutors seem unable to restrain themselves.
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.