• Crime Fiction,  Deferred Prosecution Agreements,  Grand Jury,  Lawyers,  Poetry,  SEC,  Style and Grammar

    The Freedom of Little Joe Cartwright: Tax Crime, Edgar Allan Poe, Noir Film and Lacrosse

    Notes for the week. Prosecuting Individuals Federal criminal tax lawyer Jack Townsend blogs at Federal Tax Crimes.  Here is his note on Prosecuting Corporate Employees, particularly in the tax context: I have previously blogged on Professor Brandon Garrett (UVA Law) who have carved out an academic niche on how the Government deals with corporate crime, particularly large corporate crime (the too big to jail group). See e.g., Judge Jed Rakoff Reviews Brandon Garrett’s Book on Too Big to Jail: How Prosecutors Compromise with Corporations (Federal Tax Crimes Blog 2/10/15), here. At the risk of oversimplifying his arguments, I summarize them in part relevant to this blog entry: When the Government goes…

  • Cooperation Agreements,  Deferred Prosecution Agreements,  Internal Investigations

    The Yates Memo and Three Dog Night

    Deputy Attorney General Yates Unless you have been on a monastic retreat or hidden as carefully as Hillary Clinton’s email server, you have by now likely read reports and analyses of the “Yates Memorandum,” a policy document issued by Deputy Attorney General Sally Yates entitled “Individual Accountability for Corporate Wrongdoing.” (Here is the document:  Yates-Memo-Prosecution-of-Individuals.pdf ). In this essay, I focus on one particular aspect that may be crucial for companies, their boards of directors, their audit committees and law department: The timing of potential disclosures to the Government and the degree to which outside counsel needs to have comfort that what he or she is relating to the Government…

  • Bribery,  Deferred Prosecution Agreements

    White-Collar Crime, DPAs and Repeat Business

    The phenomenon of extending corporate deferred-prosecution agreements (or “DPAs”) continues, as here with medical device maker Biomet, and controversy inevitably ensues: Life was supposed to return to normal for Biomet, the giant medical devices manufacturer accused of foreign bribery, when its federal probation expired next week. But on Tuesday, Biomet disclosed that prosecutors would extend its probation another year as they investigate new evidence of wrongdoing at the company, the Justice Department’s latest attempt to stem a widening pattern of corporate recidivism. The Department of Justice, however, has been clear recently: “Make no mistake: The criminal division will not hesitate to tear up a D.P.A. or N.P.A. and file criminal…

  • Deferred Prosecution Agreements

    Need to Know | Nuts-and-Bolts of The Toyota Deferred-Prosecution Agreement

    From the Wall Street Journal‘s law blog (@WSJLaw and @jacobgershman), here is a good summary of the Highlights from Toyota’s Deferred Prosecution Agreement With Prosecutors.  Note that the agreement provides, as is common, for the appointment of an independent monitor, and the scope of the monitor’s review-authority seems quite broad.  (Perhaps the Government had in mind Apple’s recent battles with its monitor). Here is a copy of the Toyota deferred prosecution agreement. For further reading about the benefits and burdens of DPAs, we’ve discussed them before: White Collar Wire on deferred prosecution agreements

  • Deferred Prosecution Agreements

    Confidentiality and Transparency in Deferred Prosecution Agreements

    Here’s a note about.DOJ Transparency In Deferred Prosecution Agreements Professor Podgor argues: It is hard to believe that someone would have to file a lawsuit to obtain information about a non-prosecution agreement of a corporation.  One can understand the need to protect individuals from the sting of criminality when an agreement is reached to defer a prosecution or when an individual is being spared a prosecution as an alternative method to rehabilitate that individual.  But corporations are not afforded the same rights as individuals. The government is quick to note that corporations do not have the same rights as individuals when they are trying to obtain corporate documents.  Fair enough, and…

  • 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…