Just the Facts, Ma'am. Just the Facts.
Nothing can guarantee success, but McInerney stressed the importance of full cooperation: "The bottom line is, get us the facts. That is what cooperation is all about. If you do that you'll get credit for cooperation, and if you don't, you won't get that credit."
No Rest for the Weary for SEC Litigation
There have been a recent spate of denials of motions filed by the SEC to stay civil enforcement actions filed simultaneously with DOJ criminal actions. According to acting Deputy Assistant Attorney General Greg Andres, these are "interesting times." Typically, when the SEC and DOJ conduct parallel investigations, the two agencies try to file actions at the same time. Often, because the SEC action is civil, susceptible to civil discovery, the parties ask the court to stay that case until the criminal matter is resolved. In some courts, the agencies seek to relate cases to one judge to increase the chance of a stay; in other courts, that option is unavailable. The takeaway: to avoid getting scooped, DOJ may push for short trial dates.
A New Weapon To Report Healthcare Fraud
The Department of Health and Human Services Office of Inspector General created a Hotline website to improve the public's ability to report healthcare fraud. OIG reports it received about 125,000 phone complaints and roughly 17,000 e-mail complaints last year, which it hopes to increase with the implementation of the website.
A Cash Incentive for Whistleblowers
Section 922 of the Restoring American Financial Stability Act of 2010, which is in conference, would reward employees who blow the whistle on securities violations with up to 30% of any monetary penalties over $1 million. If it becomes law, this change will create a cash incentive for whistleblowers (similar to the False Claims Act) to report wrongdoing.
The Devil Is Now in the (Individual) Details
Attorney General Eric Holder issued a memorandum to all federal prosecutors regarding the DOJ policy on charging and sentencing. The memo loosened some of the restraints placed on prosecutors by the now-superseded Ashcroft Memo, which instructed prosecutors to seek an indictment for the highest, most readily provable offense and to pursue a sentence within the applicable Guidelines range. In contrast, while the Holder Memo has similar instructions, it invites prosecutors to consider "an individualized assessment of the facts and circumstances of each particular case" when making charging and sentencing decisions.
Double Your Prosecution, Double Your Jeopardy
The en banc Third Circuit held in United States v. Rigas that when the government brings charges under 18 U.S.C. § 371, a "successive prosecution" relating to the same scheme constitutes double jeopardy in violation of the Fifth Amendment. In Rigas, the U.S. Attorney's Office for the Southern District of New York indicted the defendants for a wide-ranging scheme to defraud Adelphia Communications Corporation in violation of § 371. Subsequently, the U.S. Attorney's Office for the Middle District of Pennsylvania indicted them for conspiracy to defraud the United States under the same statute. The en banc Third Circuit ruled the second indictment was barred as double jeopardy.
Elizabeth Latif moderated and Jed Davis spoke on the panel, entitled: "Preventing, Confronting and Surviving Cyber Incidents for In-House Counsel" at the firm's Hartford office on May 17.
Dan Wenner and Stan Twardy authored an article titled "How Much is Too Much? Forfeitures and the Eighth Amendment" (PDF) for the American Bar Association's Section of Criminal Justice.
Dan Wenner and Danielle Corcione authored an article titled "Guilty Plea's Constitutional Consequence Heads to High Court" that was published by Law360.
Day Pitney Newsletter
Jed Davis will be a featured panelist in a CLE program titled, "Implementing the New DFS Cybersecurity Regulation," (click on title to register), sponsored by the Data Law Initiative at Cardozo Law School.
Stan Twardy was quoted by the CT Law Tribune in an article that discussed the unfertile ground for law firm merges and acquisitions – with one exception.
Stan Twardy was featured in a Q&A piece in the CT Law Tribune in which he discussed his time as the U.S. attorney for Connecticut, the challenges faced in dealing with clients involved in both civil and criminal cases and the best way to prepare for success before trial.
David Doot was quoted in an article, Worries Abound As FERC Quorum Shortfall Hits 3-Month Mark, published in Law360.
Day Pitney Press Release
Danielle M. Corcione was quoted in an article, "Former Asst. US Attorney Joins Day Pitney's NJ Office," published in Law360.