White collar financial and economic cases can involve voluminous and confusing documents, but these cases need not be feared. The authors discuss the importance of financial records received as well as exculpatory records that are sometimes not provided. Is it a criminal case, a civil case, or just a bad investment? The answer is almost always somewhere in the documents.

In antitrust cases, the per se rule prohibits inquiry into the reasonableness of defendants’ conduct when particular types of antitrust violations are at issue – for example, price fixing or bid rigging. In a criminal antitrust case, however, is this presumption of unreasonableness – of illegality – consistent with the Fifth and Sixth Amendments? Is it consistent with the text of the Sherman Act? NACDL, as amicus curiae, offered the Supreme Court an answer to these questions. That answer is no.

It is the criminal defendant who is at a disadvantage in a case involving foreign evidence. Among other things, the government has access to evidence through mutual legal assistance treaties and informal cooperation agreements. The authors provide an overview of constitutional issues defendants face when seeking foreign evidence in cross-border cases. They also discuss the methods defendants can use to obtain foreign evidence and the hurdles they may encounter when seeking it.

Prosecutions alleging theft of trade secrets have been creeping upward since 2009. White collar practitioners must become fluent in the language of the Economic Espionage Act and be on alert that civil trade secret litigation can easily lead to criminal charges. Defense counsel should expect tailored and well-investigated cases by prosecutors unafraid to delve into highly technical and complex materials.

Continuing Vagueness and Resulting Opportunities for Clients

The U.S. Supreme Court saved 18 U.S.C. § 1346 and the honest-services doctrine from the void-for-vagueness dust heap in Skilling v. United States. Jonathan Jeffress and William Zapf explore certain “limiting principles” courts have followed that may be avenues for challenging an honest-services prosecution. In addition, they include a brief survey detailing how circuit court pattern jury instructions cover honest-services fraud.

In the wake of the opioid epidemic, state and federal prosecutors are becoming aggressive in prosecuting DEA registrants who deviate from professional norms. If a physician prescribes controlled substances “for other than a legitimate medical purpose” or “outside the course of professional practice,” he or she faces up to 20 years in prison. However, through pretrial motion practice, jury instructions and expert witness testimony, practitioners can tip the scales by narrowing the applicable standard.

In Hale v. Henkel (1906), the Supreme Court held that an officer of a corporation could not assert the Fifth Amendment privilege against compelled self-incrimination on behalf of the corporation. The authors argue, however, that the basis for Hale is no longer valid. For the right client, defense attorneys should consider recommending assertion of the privilege.

Philadelphia litigator Alexander Owens discusses two cases that may reflect a renewed focus on private equity firms in the False Claims Act arena. Lawyers representing private equity firms should strive to understand the unique financial and managerial dynamics that place many private equity firms in the government’s crosshairs.

Practitioners defending clients against federal fraud charges or related conspiracy charges should be aware of the Wartime Suspension of Limitations Act, particularly lawyers working on defense procurement cases.

This month Andrew George and Kyle Clark review Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit-List by Howard Root.

The city of Albuquerque seized Arlene Harjo’s car after her son borrowed it and was arrested for DUI. Her case shows that a forfeiture statute may appear constitutional on its face but, in actuality, may provide improper financial incentives to prosecutors and police to seize citizens’ property for their own or their organization’s benefit. The Harjo case offers lessons on how to successfully mount a due process challenge to forfeiture statutes.

Asset forfeiture – also called “policing for profit” – has come under scrutiny from courts and legislatures. Elliot Abrams provides defense lawyers with recent updates to forfeiture law, primarily focusing on pretrial seizure and attorney’s fees. Courts are taking a hard look at forfeiture and pretrial seizures, and lawyers should continue bringing statutory challenges to actions that appear to violate statutory language or a defendant’s fundamental rights.

In 2017, the U.K. High Court of Justice handed down a decision holding that attorney work papers, including witness interview memoranda, were not protected by the “litigation privilege” under U.K. law. Given the frequency of cooperation between the U.K. Serious Fraud Office and the U.S. Department of Justice, NACDL recognized that the decision had implications in the United States. When the case was appealed, NACDL sought to ensure that the U.K. appellate court understood the international implications of the High Court’s decision. This article tells that story.

Although the Securities and Exchange Commission is a creature of administrative law, criminal defense lawyers possess the strong advocacy skills that will enable them to handle SEC cases. It is important, however, to know how the landscape at the SEC differs from criminal defense forums. Susan Brune and Juliet Hatchett make the comparisons, point out the contrasts, and for the benefit of criminal defense practitioners who have not yet had the opportunity to deal with the SEC, demystify the process.

The new federal tax law contains a provision regarding the process of seeking tax deductions for payments made to the government in satisfaction of a settlement agreement or judgment. Practitioners must understand the tax consequences of the new law and its potential effect on the availability of insurance coverage for their clients.

On March 21, 2018, in Marinello v. United States, the U.S. Supreme Court once again intervened to block an overly expansive application of a vague criminal provision. The case involved the Omnibus Clause of the Internal Revenue Code.

The dictionary defines “forfeiture” as the loss of property or money due to the breach of a legal obligation. This is the part of a client’s sentencing that turns some criminal defense attorneys into frightened first-year law students. Many inform the client to “let the property go” or to retain someone later to deal with the issue. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture. He also examines the recent Supreme Court decision in Honeycutt v. United States and its possible ramifications.