FEDERAL REGULATORY READING LIST: Resources for New Leaders at DOJ

DOJ*Note: This is the third in a series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To read posts addressing other federal agencies, click here.

As the federal government’s primary prosecutor, the Department of Justice (DOJ) serves an important role in enforcing criminal penalties.  However, DOJ frequently oversteps its bounds and advances overzealous enforcement policies.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over DOJ’s recent policies and actions with timely papers and blog commentaries, and weighed in directly through amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency.  This post provides a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas.

Overcriminalization Timeline

In November 2015, WLF released the third edition of its Timeline: Federal Erosion of Business Civil Liberties (Overcriminalization Timeline).  Each category in the Timeline reflects a separate concern with DOJ’s approach to white-collar criminal enforcement: mens rea, DOJ criminal enforcement, attorney-client and work product privileges, deferred prosecution and non-prosecution agreements, and criminal sentencing. Continue reading

The Government Should Stop Using ‘Operation Choke Point’ to Bully Banks into Cutting Ties with Legitimate Businesses

imagezOn the eve of the inauguration, many industries and businesses await the changes a new administration will bring.  In particular, payday lenders are hoping that they will once again be able to enjoy unrestricted banking access, as for the past several years their banking relationships have slowly been severed as a result of a government initiative known as “Operation Choke Point.”

Operation Choke Point began—without any Congressional approval or even knowledge—as a product of President Obama’s 2009 executive order to eliminate fraudulent and illegal businesses.  Not surprisingly, however, the initiative quickly expanded.  By 2013, the Department of Justice (DOJ) had started quietly launching the now-infamous federal initiative unconstitutionally cutting off countless legitimate businesses from banking services. Continue reading

DOJ Announces Intent to Go Criminal in Wage-Fixing and No-Poaching Antitrust Cases

swisherFeatured Expert Contributor — Antitrust & Competition, U.S. Department of Justice

Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP

In April of this year President Obama issued an executive order designed to “protect American consumers and workers and encourage competition in the U.S. economy … .” The order aimed to expand competition policy beyond just the Justice Department Antitrust Division (DOJ) and the Federal Trade Commission (FTC), and encouraged every federal agency to consider ways to enhance competition when drafting and enforcing each given agency’s regulations. A notable element of the President’s executive order was the promotion of competition in labor markets. The order asserted that the economic growth that flows from competitive markets “creates opportunity for American workers,” and that anticompetitive practices can reduce those opportunities. Continue reading

WLF Web Seminar Assesses Criminalization of Food-Safety Regulation

 

Speakers:

Related Materials:

  • Powerpoint slides used by Mr. Neale available here
  • WLF Legal Opinion Letter authored by David Debold on US v. DeCoster, discussed in seminar, available here

After Oral Argument in “Salman v. US,” Will Supreme Court Meaningfully Limit What Counts as Insider Trading?

bainbridgeFeatured Expert Contributor — Corporate Governance/Securities Law

Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law

Over a three-year period from 2004 to 2007, Citigroup investment banker Maher Kara disclosed confidential nonpublic information about upcoming mergers and acquisitions to his brother Michael Kara. In turn, Michael disclosed the information to his close friend Bassam Salman, who then indirectly traded in the affected stocks. When Salman was tried on charges of illegal insider trading, the government offered evidence that he knew the information originated with Maher.

The case presented two issues: First, what is the basis of liability when an insider tips information to an outsider? Second, what must the government prove in order to hold a remote tippee liable when the information is passed down a chain from tipper to tippee to a tippee of that tippee and so on? Continue reading

Divergent Philosophies on Merger Enforcement Emerge from Senior DOJ, FTC Antitrust Officials’ Speeches

Featured Expert Contributor — Antitrust & Competition, U.S. Department of Justice

swisherAnthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP.

*Ed. Note: With this post, Mr. Swisher is assuming the role of Featured Expert Contributor on Antitrust & Competition—DOJ.  The WLF Legal Pulse welcomes him on board, and we thank his predecessor, Mark J. Botti, for his contributions on DOJ-Antitrust matters during the past two years.

Observers looking for clues as to how federal antitrust enforcement could develop in the next administration took note of a June speech by Senator Elizabeth Warren. Senator Warren laid out some aggressive policy views that would result in a marked shift in antitrust enforcement doctrine if put into place. She decried a so-called “concentration problem” and lamented that “competition is dying.” Senator Warren called for the antitrust enforcement agencies to “hold the line” on horizontal mergers, and was sharply critical of the established agency practice of obtaining divestiture relief, claiming that “too often, [divestitures] don’t work.” Continue reading

Déjà Vu All Over Again: Federal Court Blocks Staples/Office Depot Merger

amurinoFeatured Expert Column – Antitrust/Federal Trade Commission

Andrea Agathoklis Murino, Goodwin Procter LLP

Staples, Inc. (SPLS) and Office Depot, Inc. (ODP) would be forgiven for thinking of the late Yogi Berra and wondering if this was what he meant by déjà vu all over again.  In 1997, following an investigation by the Federal Trade Commission (FTC), the US District Court for the District of Columbia blocked their proposed tie-up.  And now, in 2016, after more than a year-long battle with the FTC, the same court’s Judge Emmet G. Sullivan blocked SPLS’s proposed acquisition of ODP.  Judge Sullivan announced the outcome on May 10, but issued his opinion only to the parties; the public needed to wait until May 17 to see his quite detailed 75-page explanation.  In sum, Judge Sullivan found that the FTC had met its burden under § 7 of the Clayton Act and showed a reasonable probability that the proposed merger would substantially lessen competition in the sale and distribution of consumable office supplies to large Business-to-Business customers. With that finding in hand, the court concluded that the FTC had carried its burden of showing that a preliminary injunction preventing the proposed merger was in the public interest and that the equities weighed in favor of injunctive relief. Shortly after Judge Sullivan announced his decision, SPLS and ODP abandoned the transaction. Continue reading