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White Collar Crime

FERA – 2009 – Brings U.S. Broad New Government Enforcement Powers

New Federal Initiatives Project
Michael J. Madigan, Lauren B. Muldoon, Jane Beall September 14, 2009
Fraud Enforcement and Recovery Act of 2009 FERAAs the economic meltdown of 2008 wound down, 2009 brought a rapid legislative response in the enforcement arena.  Rocketing its way through Congress, the Fraud Enforcement and Recovery Act of 20091 (dubbed "FERA") authorizes substantial new funding to the Department of Justice and other federal enforcement agencies for investigating and prosecuting offenses.  In so doing, FERA makes significant substantive and procedural changes to existing federal fraud laws.  As discussed below, these changes broaden the scope of various enforcement statutes, while attempting to ease the Government's investigative and prosecution burdens in the litigation of such cases.

Fraud on the Market? - Oral Argument Preview of Halliburton v. Erica P. John Fund - Podcast

Litigation and Corporations, Securities & Antitrust Practice Groups Podcast
Steven G. Bradbury, Michael Klausner March 18, 2014

Supreme Court building

Shareholders of Halliburton filed a class action lawsuit arguing that Halliburton falsified its financial statements and misrepresented projected earnings, invoking a “fraud on the market” theory to demonstrate class reliance on Halliburton’s statements. The “fraud on the market” theory assumes that investors have relied on any material misstatements when they purchase a security. The federal district court certified the class and did not allow Halliburton to introduce evidence that the statements did not affect its stock prices. The U.S. Court of Appeals for the Fifth Circuit affirmed. Will the Supreme Court continue to recognize the fraud on the market theory? If so, will the Court allow introduction of evidence that a defendant’s statements did not affect the price of its stock to rebut the presumption of reliance?

Featuring:

  • Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice
  • Prof. Michael Klausner, Nancy and Charles Munger Professor of Business and Professor of Law, Stanford Law School

[Listen now!]

Is American Justice Blind, Or Blind To A "Prosecutocracy"? - Podcast

Criminal Law & Procedure Practice Group Podcast
Conrad Lord Black, William G. Otis, Ellen S. Podgor, Dean A. Reuter April 04, 2013

Is American Justice Blind, Or Blind To A Federal convict Conrad Lord Black argued at National Review Online last fall in "Blind Justice" that America's system of broad prosecutorial discretion routinely undermines defendants’ constitutional rights -- largely through a criminal justice system that's designed in acquiescence to this discretion by those who fear being seen as "soft on crime.”  The system's defenders respond that criminal defendants enjoy numerous and generous constitutional protections (some at the expense of a textual constitutional reading), and that prosecutorial discretion -- though perhaps subject to discrete, if infamous, abuse -- is overwhelmingly used properly against the legitimately guilty.  With the rise of debates over the role of the federal government in criminal law, these divergent views will be debated thoughtfully by our expert panelists on this previously recorded conference call.

Featuring:

  • Conrad Lord Black, Financier, Historian, and Commentator
  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Ellen S. Podgor, Gary R. Trombley Family White-Collar Crime Research Professor and Professor of Law, Stetson University College of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

Losing Confidence in Confidentiality: Do Expanding Exceptions to the Attorney-Client Privilege Gut Its Purpose?

Engage Volume 13, Issue 1, March 2012
Raymond Tittmann May 29, 2012

Losing Confidence in Confidentiality: Do Expanding Exceptions to the Attorney-Client Privilege Gut Its Purpose?True or false: attorney-client communications, simply speaking, are privileged? False, both under law and—more importantly—in practice. That answer may surprise clients and even many lawyers. If it does, these clients have a problem: sensitive communications transmitted on the assumption of confidentiality may one day be ordered produced under a multitude of exceptions that now exist under the law. As the law has developed to erode the privilege, lawyers and clients—and especially insurance companies and their lawyers—may decide to operate on the assumption they will one day be compelled to produce their communications. They may prefer to avoid frank communication out of concern for creating written communications that could be troublesome in future litigation... [Read more!]

Over-Criminalization and Public Opinion - Podcast

Criminal Law & Procedure Practice Group Podcast
Whit Ayres, George J. Terwilliger III, Dean A. Reuter September 20, 2012

Over-Criminalization and Public OpinionOver the last thirty years, the number of federal criminal laws has increased by one-third. This expansion, combined with the fact that many of these laws are broadly written and lack traditional criminal mens rea requirements, has given rise to a debate about "over-criminalization." The federal government's raids of Gibson Guitar factories intensified the debate, drew national attention to the issue, and prompted calls for reform. Critics of these developments argue that they are inconsistent with federalism principles, undermine individual liberty, and threaten our nation’s prosperity by providing another major way for the federal government to regulate the private sector. Skeptics dispute various aspects of these criticisms and argue that much of modern federal criminal law provides essential tools for maintaining order, protecting consumers, and reining in fraud. Has over-criminalization had an impact on our economy? What reforms could Congress consider? How does the public perceive these issues and proposals for reform? On this previously recorded conference, the experts explore these questions and share the results of a nationwide public opinion survey.

Featuring:

  • Mr. Whit Ayres, North Star Opinion Research
  • Hon. George J. Terwilliger III, White & Case LLP
  • Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]