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Government Enforcement Exposed - "The GEE"
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31 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 3

  *This is the fourth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The third of these questions concerns what a company is not required to do to earn cooperation credit.   Question: What is the cooperating company not required to do?    Answer: In order to receive cooperation credit, the Department of Justice (DOJ) has placed certain formal limitations on the Yates Memo’s reach. For instance, a company is not required to embark on an endless fishing expedition for information, nor is a company required to waive any attorney-client privilege to receive cooperation credit. At times, however, although there are formal limitations, the department’s limitations create an apparent conflict with its practical application….

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08 Mar 2016 DOJ Leaves Much Unsaid After Announcing Need for Corporate Certifications to Finalize Settlements

  On Feb. 4, the Department of Justice’s (DOJ) Fraud Section announced it will start requiring companies involved in white-collar crime investigations to “certify” that it has disclosed all information regarding individuals involved in the alleged misconduct. According to the Wall Street Journal, this corporate certification will be required before the DOJ will finalize a settlement agreement with a company. The new certification process is still in the “development” stage, “according to the department, but it could be a written certification.” While the U.S. Attorney Manual already requires companies “identify all individuals involved in the misconduct” and disclose “all facts relating to the misconduct;” it does not require a formal, written certification as a prerequisite to finalize a settlement. See U.S.A.M. § 9-28.700.   The…

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08 Feb 2016 The “Other Yates Memo:” DOJ to Enhance Workplace Safety Violation Prosecutions by Tacking On More Severe Charges Where Possible

  On Sept. 9, 2015, Deputy Attorney General Sally Quillian Yates issued a memo pronouncing the Department of Justice’s (DOJ) reinvigorated strategy to “combat corporate misconduct” by targeting “the individuals who perpetrated the wrongdoing.” The memo became widely known as the “Yates Memo.” However, on Dec. 17, 2015, Yates issued another memo to all 93 U.S. attorneys that largely fell under the radar. While this “Other Yates Memo” has received less attention, it bears significant importance for corporations in patrolling work safety violations.   In the memo, Yates announced the DOJ’s intention to enhance the prosecution of work safety violations to increase deterrence. Work safety violations are typically misdemeanors punishable by a fine of no more than $10,000 and/or imprisonment for no more than six…

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01 Feb 2016 Can the Government Unlock My Cell Phone? Companies’ Heightened Security Features to Protect Customer Privacy Affects DOJ Investigations

  With contributions from Katie Matsoukas.   As the numbers of highly publicized data breaches have become more prevalent, companies continue to find new ways to secure private customer information. However, as companies become more successful at protecting their customers and reducing their own liability, the government’s ability to extract information on targets of criminal investigations has become more difficult. This tension between personal privacy and the federal government’s desire and ability to access private data during investigations through search warrants has now reached the federal courts.   During the execution of a search warrant on Jun Feng’s (Feng) residence, the government seized a password-locked Apple iPhone 5. See In re Order requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued…

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06 Jan 2016 STARTING THE NEW YEAR WITH A CLEAN SLATE: INDIANA’S EXPUNGMENT STATUTE ENCOMPASSES SOME CIVIL FORFEITURES

  At the close of 2015, a divided Indiana Court of Appeals ruled that an individual with a civil forfeiture action that is related to a criminal conviction could seek to expunge not only the criminal records but the civil records based on the underlying conviction. This (albeit limited) development is important because of the increasing scrutiny on the use of civil forfeiture in the face of criticism over its inequities.  (See a previous Government Enforcement Exposed blog post on civil forfeiture here.)   Civil forfeiture actions often arise when the government locates money or items during an investigation or search based on alleged criminal activity. The case before the court was no exception.  In D.A. v. State of Indiana, D.A. sold cocaine to a…

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