• Sentencing

    Good People, Bad Acts and Intent

    From Professor Peter J. Henning, more on the “why” of white-collar offenses:  When Good People Do Bad Things: That is the conundrum of many white-collar crime cases: successful business people act in ways that put careers and personal fortunes at risk for seemingly modest gains, and sometimes the misconduct benefits their company but themselves only indirectly. (See our earlier post: Why’d He Do It?) This theme runs through many white-collar situations: employees, officers and vendors rarely see themselves as “criminals,” and often act when they are at the end of a rope (their own or someone else’s).  Before you protest that taking “motive” or “context” is being soft on business…

  • Theology

    Thanksgiving, the Bay Psalm Book and Jonathan Edwards

      The week of Thanksgiving, the Bay Psalm Book is auctioned for $14 million: The little volume of psalms, one of only 11 known to exist out of roughly 1,700 printed by 17th-century Puritans in Massachusetts, went for $14,165,000 at auction on Tuesday. The Bay Psalm Book was published in 1640, more than a century and a half after the first Gutenberg Bibles and 20 years after the Pilgrims had landed at Plymouth. It was the first book turned out by a printing press that had been shipped over from England. The press operator was a locksmith who was apparently learning as he went along: some of the pages were…

  • Crime Fiction,  Sentencing

    Why’d He Do It?

    Here’s a note from Professor Ellen Podgor about an article on Sentencing the Why of White Collar Crime by Todd Haugh (Illinois Institute of Technology – Chicago-Kent College of Law)  in the Fordham Law Review.  From the abstract: “So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in…

  • Cocktails

    The Mai Tai Question for Young White-Collar Lawyers

    Here’s the recipe for a Mai Tai. A Mai Tai is not really a Thanksgiving cocktail, but it reminds me of something I’ve always wanted to ask an interviewing law student. Long ago, when I was junior at Washington & Lee, a history course (the “History of Venice,” I believe) taught by Professor Jefferson Davis Futch III required “permission of the instructor” before one could enroll.  I went to the Department of History, knocked at Professor Futch’s door and was given leave to enter. I said that I was here for permission to take the course He considered me for a moment, said “Let’s see,” leaned back in his chair…

  • Privacy,  Surveillance

    The Third-Party Doctrine, Revisited (or, What Can I Give to Others and Still Keep Private?)

    Here’s a useful article on the Third-Party Doctrine.   That doctrine, first articulated by the Supreme Court in Smith v. Maryland, has been the principle behind the notion that what people give to third parties — a phone number, for example — is not “private,” at least for constitutional purposes.  A “pen register,” of course, is a crude, weak device for data collection compared to the tools available to the intelligence and law enforcement communities today. (A pen register is an electronic device that records all numbers called from a particular telephone line). Don’t look for the third-party doctrine to go away anytime soon, but expect it to modified judicially, legislatively,…

  • Evidence,  FCPA,  Legal Education

    Breaking Bad, All the Time: White Collar Crime for Business Lawyers

      The Network of Trial Law Firms is an excellent CLE vehicle.  Here’s a Sharman White Collar Panel Video of a Network panel about white-collar issues for civil lawyers — me, Jackie Arango of Akerman Senterfit (Miami), Joel Neckers of Wheeler Trigg (Denver) and Gerry Leone of Noxon Peabody (Boston).  Here’s the blurb from the Network program: No one thinks of themselves, their employees or their company as “criminals.” On the other hand, Walter White was once just a chemistry teacher. The lines between what are business-crime problems and what are traditional corporate civil issues — compliance, due diligence, regulatory recordkeeping and permitting, whistleblowers, confidentiality, privilege and indemnification — have…

  • Law Practice Management

    The Most Arrogant Law Firm

    In general, one should strive to avoid being named the most arrogant law firm four years running: The Most Arrogant Law Firm. To be fair, though, we note that the same group of General Counsels identified the same firm as providing the best client service.

  • Deferred Prosecution Agreements

    Deferred Prosecution Agreements and the Individual

    The first SEC deferred-prosecution agreement for an individual raises a couple of issues.  Here is the document itself:  SEC DPA With Herckis First, a reminder.  A “deferred prosecution agreement” is what its name implies.  It’s an agreement between a company (and now, an individual) that puts off — for good, hopefully — prosecution on the condition that the defendant/respondent complete a certain course of action laid out in the agreement (for example, hiring an independent corporate monitor or auditor who will report to the government). Second, there is guidance on DPAs in the United States Attorney’s Manual.  Review the 2010 Grindler Memorandum, which is an amendment to the 2008 Morford Memorandum.  The Morford…