D.C. Circuit Further Clarifies Attorney-Client Privilege “Primary Purpose” Test

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC.

In an unusually short, but to-the-point opinion, the U.S. Court of Appeals for the D.C. Circuit recently reaffirmed that the attorney-client privilege applies to a communication between attorney and client if at “one of the significant purposes” of the communication was to obtain or provide legal advice.  The case is Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc.  Judge Kavanaugh authored the unanimous opinion for the three-judge panel, which also included Judges Pillard and Randolph.  Continue reading “D.C. Circuit Further Clarifies Attorney-Client Privilege “Primary Purpose” Test”

DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC.

*Ed. Note: This is Greg’s inaugural commentary as a featured expert contributor. Greg is a member of WLF’s Legal Policy Advisory Board, and has extensive experience in law enforcement as a former United States Attorney and Deputy General Counsel of the FBI. He also served five terms in the Nevada legislature, where he was Chairman of the Senate Judiciary Committee.

Last month, in several speeches delivered in New York City to separate groups of white collar defense lawyers, Deputy Attorney General Rod Rosenstein announced a new U.S. Department of Justice (DOJ) policy concerning the proper coordination of penalties in corporate criminal cases.  This new policy, implemented by way of a new section in the U.S. Attorneys’ Manual (and a tweak to an existing provision), seeks to address the problem of “piling on” of multiple penalties by multiple enforcement entities in the context of corporate resolutions. Continue reading “DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions”

Supreme Court Has Second Chance to Resolve Circuit Split on Two Criminal Securities Fraud Issues

SchaerrGuest Commentary

By Gene C. Schaerr, a Partner with Schaerr Duncan LLP in Washington, DC. Mr. Schaerr is Counsel of Record for the petitioners on the certiorari petition discussed here.

The U.S. Supreme Court may be about to resolve two issues of enormous importance to anyone involved, directly or indirectly, in the sale of securities.  The case that may provide the vehicle for such a ruling, Ellison v. United States, was recently the subject of an order directing the U.S. Solicitor General to file a response to the defendants’ petition for certiorari by May 21.  That petition challenges a U.S. Court of Appeals for the Ninth Circuit decision that, as the Cato Institute, Reason Foundation, and a group of law professors explained in a supporting amicus brief, exacerbates a “system” already “stacked in favor of the government.” Continue reading “Supreme Court Has Second Chance to Resolve Circuit Split on Two Criminal Securities Fraud Issues”

President Commutes Sentence of Business Owner Victimized by Overcriminalization

rubashkinOn Wednesday, December 20, President Trump issued a statement commuting the sentence of Sholom Rubashkin, the former CEO of a kosher meatpacking plant. He had been convicted of financial fraud in 2009 and sentenced to 27 years in prison—a virtual life sentence for the then-51-year old Rubashkin. He had served 8 years of that sentence. Washington Legal Foundation actively participated in the courtroom and public resistance to the excessive sentence through amicus briefs and published commentaries. Continue reading “President Commutes Sentence of Business Owner Victimized by Overcriminalization”

The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted

supreme courtIn a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with  amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases.  Then again, the entire point of this feature is to identify such oversights.  Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.

One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted.  Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts.  Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired.  If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading “The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted”

Supreme Court’s Presumption-of-Innocence Decision Should Inspire Asset-Forfeiture Reformers

supreme courtIn a US Supreme Court term filled with cases that “only a lawyer could love,” the justices did issue at least one decision in October Term 2016—Nelson v. Colorado—that any TV crime-drama viewer can understand. The decision turned on the bedrock principle that the accused is innocent until proven guilty. While Justice Ginsburg’s opinion applies directly to a Colorado law, it could prove highly influential in the ongoing debate over civil-asset forfeiture, a controversial law-enforcement practice. Continue reading “Supreme Court’s Presumption-of-Innocence Decision Should Inspire Asset-Forfeiture Reformers”

Supreme Court Cert Grant in “Farha v. US” Can Clarify Level of Criminal Intent Needed to Prove “Knowledge”

johnlauroGuest Commentary

By John Lauro, a white-collar defense attorney who represented one of the WellCare defendants at trial and at the Eleventh Circuit.

On Friday, April 21, 2017, the US Supreme Court will meet in conference to consider a pending petition for certiorari in Farha v. United States, No. 16-888, a major white-collar fraud case raising an important issue of concern to the defense bar and their clients: whether “deliberate indifference” is a sufficient level of mens rea for proving “knowledge” with respect to federal criminal statutes.  The High Court should grant review and reverse the US Court of Appeals for the Eleventh Circuit ruling holding otherwise.

Farha is a classic case of overcriminalization, where civil and administrative remedies are more appropriate in the regulatory area of complex healthcare and business law. The case was extensively discussed in prior postings at the WLF Legal Pulse (here and here) and a WLF Legal Backgrounder [hot link to Kaiser’s piece]. In brief, following a raid by 200 FBI Agents at the offices of WellCare, a Florida Medicaid health maintenance organization, several executives, including the CEO, CFO, and general counsel, were indicted on healthcare fraud charges based on the government’s interpretation of Florida’s Medicaid law.   Continue reading “Supreme Court Cert Grant in “Farha v. US” Can Clarify Level of Criminal Intent Needed to Prove “Knowledge””