This past month, the United States Court of Appeals for the Second Circuit overturned the convictions of six brokers and traders who were charged and later convicted in an insider trading scheme in which day traders were allowed to eavesdrop on confidential communications via broker “squawk boxes.” A primary basis for the appeal court’s ruling was the failure of federal prosecutors to produce as “Brady” material transcripts of depositions taken by an attorney for the Securities and Exchange Commission in a related matter. * Portions of these withheld transcripts contradicted the testimony of key government witnesses at trial, hence triggering the reversal.
The United States Department of Justice recently charged Kurt Mix, a former engineer for BP with two counts of obstruction of justice. According to the criminal complaint and arrest warrant, Mix worked on BP’s attempt to estimate the amount of oil leaking from the Deepwater Horizon blowout. He was also involved in efforts to stop the leak. According to the complaint, Mix, received numerous notices instructing him to retain all information related to Deepwater Horizon. These notices instructed Mix to retain ESI, including text messages. After receiving these notices, Mix allegedly deleted over 200 text messages with a BP supervisor which Mix had on his iPhone which contradicted BP’s public statements related to the flow rate of oil from the leaking well. In addition, Mix, allegedly deleted more than 100 text messages with a BP contractor from his iPhone after he learned his iPhone was about to be imaged. According to the complaint, Mix deleted these messages after receiving numerous legal hold notices and while he was in contact with defense counsel. If convicted, Mix faces up to 20 years in prison and a $250,000 fine per count. This criminal complaint demonstrates the serious nature of a person’s obligations to retain ESI when an investigation is pending at that all ESI, including text messages, fails within the rubric of what must be retained.
Most companies fear the FCPA and the harm it will do to their companies. In a recent article published for the Asian-Mena Counsel, I offer a modest proposal – go on the offense with the FCPA and reap millions in potential increased enterprise value.
Here is the secret: if your company sees a potential exit strategy in the near future and you operate in certain regions of the world, you could command, and US suitors would be willing to pay, a premium for your company, into the millions, provided that you have meaningful a FCPA compliance regime. Make a strategic move to make your company FCPA compliant and reap the rewards.
For a more detailed review, please see:
We all read Brady v. Maryland, 373 U.S. 83 (1963) in law school. At least, it was assigned. It remains a pillar of federal procedure; a transformative Warren Court opinion and a reminder of an era in which the expansion and definition of the rights of criminal defendants seemingly was the order of the day.
For those readers who either do not have a law degree or did not follow their 1L syllabus, Brady concerns the obligation of the prosecution to disclose material exculpatory information to the defense in advance of a criminal trial.
This past March, the United States Supreme Court rather quietly effected what one commentator called “…the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.” (New York Times, March 21, 2012) While such pronouncements always involve risk of exaggeration or over-simplification, there is no doubt that the decisions in Missouri v. Frye, 566 U.S. — (2012) and Lafler v. Cooper, 566—- (2012), at least carry the potential to measurably impact how plea bargains are negotiated and entered in our state and federal courts.
It is commonly accepted that the right to a trial by jury is a principal protection afforded a criminal defendant. The right is, of course, enshrined in the Constitution. But it is also widely endorsed by the popular culture. There is no shortage of movies and other entertainment (some good, some middling, although I have always gotten choked up at the end of “12 Angry Men”) that purport to portray a group of citizens gathering to pass final judgment.