White Collar Crime

Although increased reliance on technology such as emails and texts has provided greater opportunity to gather evidence of criminal activity, law enforcement agencies around the world complain that encryption technologies make it difficult to catch criminals and terrorists and therefore should be restricted.

Once again a company has felt the pain that comes when it is caught violating an agreement with the Department of Justice. After taking a tongue lashing from a federal judge for repeatedly violating the law, Carnival Corp. executives have until autumn to hire a chief compliance officer and begin meaningful compliance reforms at the world's largest cruise line.

It is axiomatic that companies cannot do wrong without the actions of individuals. However, the trend over the past few decades, with a few exceptions, has been that individuals generally were not prosecuted for their roles in corporate wrongdoing that harmed the public welfare. However, there appears to be a recent escalation in prosecutions of corporate executives.

Imagine you are in-house counsel, working on a transactional document, when you receive a breathless call from a manager at one of your warehouses that a search warrant is being executed on the premises. What do you do?

For companies suspected of wrongdoing, cooperating with DOJ investigations and self-disclosing their misconduct often appears to be their only option to avoid prosecution and reduce large financial penalties. But, these benefits often come at a price, especially to company employees who are caught in the middle.

Elections have consequences, and the election of President Trump has resulted in a significant shift in law enforcement priorities. Corporate enforcement activity is at lows not seen in decades, despite an overall increase in federal criminal cases. This is a product of a change in priorities, both in terms of types of offenses and types of offender. So, for the time being, there will be almost unprecedented opportunity to achieve favorable resolutions for corporate clients.

A defendant who pleads guilty is usually required to waive a host of constitutional and statutory rights, such as the right to a jury trial, the right to confront and cross-examine adverse witnesses, the right to testify and present evidence. However, many defendants are also required to waive their right to appeal in order to receive a favorable plea agreement with the government.

Business has gone global. So too has business-related crime. In the interconnected business environment, white-collar criminal investigations and prosecutions frequently present cross-border issues and affect U.S. foreign relations. Indeed, in some recent high-profile cases, the Trump administration has implied that it sees law enforcement — or the lack of it — as one of the tools in its foreign policy arsenal.