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Government Enforcement Exposed - "The GEE"
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17 May 2018 Don’t Overthink It! Advocate for Easy to Understand Jury Instructions to Effectively Communicate Your Case

Have you ever read a full set of jury instructions for a criminal trial, let alone a civil trial? What about just one instruction for one element of a crime? Can you recall Jack McCoy ever reciting the law to the jury in a closing argument on “Law and Order?” Jury instructions are a powerful tool and can play a vital role in communicating your client’s case to the jury. The key is making the instructions simple, concise and in plain English.  Far too often lawyers miss the opportunity to advocate for their clients and communicate with the jury – through the most powerful medium, the Court – simply because they fail to advocate for simpler, easier to understand jury instructions.   The education level…

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01 Apr 2016 DOJ Launches Targeted Elder Justice Task Forces

  On March 30, the Department of Justice (“DOJ”) announced the formal launch of 10 regional Elder Justice Task Forces designed to identify nursing homes and other long-term care (“LTC”) facilities that provide “grossly substandard care” to residents.   Similar to DOJ’s previously launched Medicare Fraud Strike Force and Health Care Fraud Prevention & Enforcement Action Team (“HEAT”) initiative, the newly created Elder Justice Task Forces will focus on coordination and information sharing among federal, state and local enforcement agencies to combat suspected cases of physical abuse and financial fraud. Each task force will consist of representatives from the U.S. Attorneys’ Offices, state Medicaid Fraud Control Units, state and local prosecutors’ offices, the Department of Health and Human Services, state Adult Protective Services agencies, Long-Term…

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19 Feb 2016 Can the Government Unlock My Cell Phone? Part II: Federal Judge Says “Yes.” Federal Judge Orders Apple to Assist FBI in Unlocking iPhone

  Following up on our recent post exploring the federal government’s efforts to search cell phones, a U.S. magistrate judge recently issued an order requiring Apple Inc. to assist the Federal Bureau of Investigation (FBI) in unlocking an iPhone used by Syed Farook, one of the two individuals responsible for the mass shootings in San Bernardino, California.   During the execution of a search warrant of Farook’s vehicle, the FBI recovered a password-locked Apple iPhone 5C. See In re Search of an Apple IPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. 5:15-mj-00451, Dkt. No. 18 (C.D. Cal. Feb. 16, 2016). While the iPhone is actually owned by Farook’s former employer, San Bernardino County, which…

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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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28 Dec 2015 U.S. Supreme Court to Decide the Validity of the False Claims Act’s Implied Certification Theory

The United States Supreme Court granted certiorari in the First Circuit case Universal Health Services, Inc. v. Escobar to decide the validity and application of the implied certification theory of the False Claims Act (FCA). The FCA imposes civil liability for knowingly presenting, or causing to be presented, a false or fraudulent claim to the government for payment or approval. Courts have recognized two types of FCA claims: those that are factually false and those that are legally false. Legally false claims are founded on a false certification of compliance with a federal statute, regulation or contractual requirement and are further categorized as either expressly or impliedly false. An expressly false certification may occur when a request for payment explicitly certifies compliance, whereas the doctrine…

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03 Aug 2015 Partial Victory for Blagojevich: Seventh Circuit Concludes Criminal Statutes Do Not Prohibit “Logrolling”

In mid-July, the Seventh Circuit reversed five of former Illinois Governor Rod Blagojevich’s 18 felony convictions. The court’s ruling may not be of much help to Blagojevich – the court noted that his sentence remains below guidelines – but it does have significant implications for public officials who face federal prosecution for “logrolling,” or trading one public act for another.   In 2008, Blagojevich infamously sought to benefit from his power to appoint a successor to Barack Obama’s soon-to-be vacated Senate seat. The Seventh Circuit focused on the government’s claim that Blagojevich offered to appoint Obama advisor Valerie Jarrett to the Senate in return for, alternatively, a Cabinet appointment or help obtaining a private-sector job.   The court found a critical difference between these two…

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28 May 2015 RENEWED GOVERNMENT INTERFERENCE IN ATTORNEY FEE ARRANGEMENTS?

For decades, employees who were not in a position to be covered by Director’s & Officer’s insurance have relied upon employment agreements or the simple generosity of their employer to pay legal fees associated with government investigations and prosecutions. Moreover, in an age where the Department of Justice’s jurisdictional reach seems to be growing by the minute, companies facing long-lasting and wide-reaching government investigations many times rely upon one single law firm to represent multiple employees who may be interviewed by the government or serve as a grand jury witness. The benefits to the company are obvious and numerous – the company does not have to pay an additional set of lawyers to familiarize themselves with the facts of the investigation and it is able…

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05 May 2015 Extradition from Japan: The Gamble

It is no secret amongst criminal antitrust practitioners that the U.S. Department of Justice (DOJ) has had difficulty extraditing foreign nationals indicted for Sherman Act violations.  Indeed, the extradition process is complex and uncertain given the multitude of hurdles the DOJ faces when attempting to extradite a citizen of a sovereign country.   Japanese nationals are no exception. The reality is that Japanese law and extradition proceedings afford the Japanese government a huge amount of discretion as to whether or not to comply with an extradition request made by the United States government.  Interestingly, despite the nearly insurmountable challenges faced by the DOJ in extradition proceedings, a surprising number of Japanese executives and employees have acquiesced to the U.S. justice system, the result of which…

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03 Mar 2015 SCOTUS Limits Definition of “Tangible Object” under Sarbanes-Oxley Act

The Supreme Court recently issued a decision in the case discussed in the December 2014 post “Prosecutorial Over-criminalization: Fishing for Guilty Pleas.” This case involved the conviction of Mr. Yates, a fisherman, who was found guilty of violating 18 U.S.C. §1519, the so-called “anti-shredding” provision of the Sarbanes-Oxley Act. A federal jury convicted Yates of destroying a tangible object with the intent to obstruct an investigation after he ordered his crew to discard some fish which fell short of the minimum legal size. The Eleventh Circuit upheld the ruling, finding that the phrase “tangible object” applied to fish.   The Supreme Court, in a 5-4 decision issued last week, overturned the Eleventh Circuit and ruled in favor of Mr. Yates. In its brief, the Government argued…

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22 Dec 2014 Still Waiting: House of Representatives Over-Criminalization Task Force Report

Over the past six months, we have been keeping a watchful eye on the U.S. House of Representatives Over-Criminalization Task Force and awaiting the results of their efforts. Since June 2013, the Task Force has held eight hearings to discuss a wide array of topics and to obtain expert testimony pertaining to the federal criminal code and the consequences of this country’s perpetually expanding federal criminal laws. The Task Force concluded its proceedings in early August 2014, but a report has not yet been issued. As we await the report, we anticipate some very interesting observations and recommendations from the Task Force – recommendations that may have a significant impact on the federal criminal landscape.   In its first session in June 2013, the Task…

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