New Jersey High Court Should Do Away with Plaintiffs’ Lawyers’ “Want-Ad” Closing Arguments

jury boxThe Schindler Elevator Corporation recently petitioned the Supreme Court of New Jersey to rebuke the plaintiffs’ bar’s most recent attempt to circumvent the longstanding prohibition on “Golden Rule” arguments. During closing arguments in Tufaro v. Headquarters Plaza, et al., a personal-injury trial, plaintiff’s counsel asked the jurors to think of awarding compensation “in terms of putting a want ad in the paper.” The hypothetical want ad would describe a job offer, one in which the applicant’s only duty is to suffer the plaintiff’s specific injuries. The insinuation is simple: How much payment would the jurors require to voluntarily endure the plaintiff’s injury? In other words, plaintiff’s counsel asks the jury to award damages based on how much compensation they would negotiate ex ante before agreeing to suffer the plaintiff’s injuries. This is exactly the type of Golden Rule argument that courts have long forbidden. Continue reading “New Jersey High Court Should Do Away with Plaintiffs’ Lawyers’ “Want-Ad” Closing Arguments”

WLF Overcriminalization Timeline: EPA Criminal Enforcement Policies

Hartman_BarryGuest Commentary

Barry M. Hartman, K&L Gates LLP*

Editor’s Note: This is the sixth in a series of guest commentary posts that address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg.  There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division.  When the difference between a criminal and regulatory offense—the “knowledge” or “scienter” requirement—was clear, a company knew what the stakes were if it was being investigated civilly.  But over the last 25 years, the continuing relaxation of the “scienter” requirement in the environmental arena has blurred that distinction, so that the only articulation an EPA or DOJ lawyer will typically give to that standard is, “I know it when I see it,” allowing the government to use criminal sanctions where administrative or civil penalties would be more appropriate. Continue reading “WLF Overcriminalization Timeline: EPA Criminal Enforcement Policies”

In the Ninth Circuit, Not All Litigants Are Created Equal

9thCirThe U.S. Court of Appeals for the Ninth Circuit this week denied Uber Technologies’s petition for Rule 23(f) interlocutory review of an order granting class certification in a major challenge to the manner in which Uber operates its ride-sharing business. The four named plaintiffs assert that every Uber driver should be classified as an employee, not (as is currently the case) an independent contractor. The denial of review is not unusual when viewed in isolation. Although Rule 23(f) grants federal appeals courts discretionary authority to hear interlocutory appeals from class-certification orders, appeals courts permit such appeals in only a fraction of all cases, and the default rule continues to be that litigants must await issuance of a final judgment before appealing from pre-judgment rulings to which they object. Continue reading “In the Ninth Circuit, Not All Litigants Are Created Equal”

WLF Overcriminalization Timeline: Attorney-Client Privilege and Work-Product Doctrine

FrisbyGuest Commentary

Larson Frisby, American Bar Association*

Editor’s Note: This is the fifth in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

For more than a decade, the American Bar Association (ABA) has worked closely with the Washington Legal Foundation and other prominent business and legal groups to reverse or modify federal agency policies that have been eroding the attorney-client privilege and the work product doctrine. As shown by the WLF’s new chart, “Timeline: Federal Erosion of Business Civil Liberties, great progress has been achieved in preserving these important legal protections, but much still needs to be done.

The attorney-client privilege, which protects confidential communications between a client and a lawyer for the purpose of obtaining legal assistance, is a bedrock legal principle of our free society. It enables both individual and corporate clients to communicate with their lawyers in confidence, which is essential to preserving the client’s fundamental right to effective counsel. Continue reading “WLF Overcriminalization Timeline: Attorney-Client Privilege and Work-Product Doctrine”

WLF Overcriminalization Timeline: Deferred-Prosecution and Non-Prosecution Agreements

Whitley,Joe_CLRwebGuest Commentary

Joe D. Whitley, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Editor’s Note: This is the fourth in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

Over the past 15 years, Deferred-Prosecution Agreements (DPA) and Non-Prosecution Agreements (NPA) have become a vehicle of choice for resolving complex criminal investigations. This progression is chronicled in the Washington Legal Foundation’s (WLF) “The Federal Erosion of Business Civil Liberties” Timeline. It is commonly believed that DPAs and NPAs are useful tools for prosecutors in investigations of corporations where prosecutors can find no corporate executive directly culpable for any alleged misconduct. DPAs and NPAs permit the Department of Justice to enter into agreements totally outside of courts’ jurisdiction. Continue reading “WLF Overcriminalization Timeline: Deferred-Prosecution and Non-Prosecution Agreements”

WLF Overcriminalization Timeline: DOJ Criminal Prosecution Policies

Volkov,_Michael-1R-COLGuest Commentary

Michael Volkov, CEO and owner, Volkov Law Group LLC*

Editor’s Note: This is the third in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

Over the last thirty years, the U. S. Department of Justice has dramatically expanded criminal prosecutions of corporations and individuals, relying on a steady litany of so-called criminal-prosecution policies. Underlying each of these policies are two significant purposes: (1) to replace prior civil and regulatory enforcement with “new” criminal prosecution tools and (2) to provide criminal prosecutors with ever-increasing leverage over companies and individuals to extract criminal fines and pleas. Continue reading “WLF Overcriminalization Timeline: DOJ Criminal Prosecution Policies”

WLF Overcriminalization Timeline: Mens Rea, Public Welfare Offenses, and Responsible Corporate Officer Doctrine

matt_kaiser300Guest Commentary

Matthew G. Kaiser, Partner, Kaiser, LeGrand & Dillon PLLC

Editor’s Note: This is the second in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

To commit a crime, normally you have to have met two requirements. First, you have to have done something bad. Second, you have to have done the bad thing with a bad intent.

Take mortgage fraud. If you write on your mortgage application that you earn $1,000,000 a year, but you only earn $100,000, you’ve committed mortgage fraud if that’s what you intended to submit and you knew it was false. If, though, you’re using an online application and the “0” key on your keyboard was stuck so an extra zero appeared, you haven’t committed mortgage fraud, you’ve just made a mistake; you have no bad intent. Continue reading “WLF Overcriminalization Timeline: Mens Rea, Public Welfare Offenses, and Responsible Corporate Officer Doctrine”