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Barak Cohen represents two kinds of clients: companies and individuals facing government enforcement actions and investigations in highly regulated industries, particularly the healthcare and government contracting industries, and companies that need strategic business advice regarding compliance and regulatory matters in the cannabis industry.

The massive Panama Papers leak has attracted attention to the use of offshore business entities and implicated 2,400 U.S.-based clients of Mossack Fonseca. U.S. taxpayers with offshore assets should be wary of increased scrutiny by federal regulators, which may lead to criminal cases brought by U.S. Department of Justice.

In this update we detail the

Recently, John C. Cruden, DOJ’s Assistant Attorney General in charge of the Environmental and Natural Resources Division (ENRD), which oversees DOJ’s environmental litigation, voiced a heightened commitment to enforcing environmental laws through criminal prosecution.  In the May-June 2016 issue of The Environmental Forum, in a piece presented alongside a separate article entitled “Time for Environmental Crimes,” Cruden emphasized the following:

Without adequate enforcement, our environmental laws have little meaning, and fail to serve their purpose . . . .  I believe criminal prosecutions can and should address and deter egregious conduct that imperils public health and the environment.  The [ENRD] has responded in an exceptional fashion, strategically increasing our criminal enforcement work.

Considering the source, this is a remarkable statement.  ENRD, the division within DOJ tasked with handling diverse environmental and natural resources litigation, primarily brings civil enforcement actions.  Within ENRD, however, is the Environmental Crimes Section (ECS), an office comprised of specialized attorneys who are entirely separate from DOJ’s Criminal Division and who oversee prosecution of environmental criminal statutes.  In comparison with the breadth of civil enforcement responsibilities undertaken by ENRD’s other offices, ECS has had a relatively narrow mandate.  So what does it mean when the head of ENRD, an agency primarily focused on civil litigation, forecasts that ENRD is “increasing” its “criminal enforcement work?”
Continue Reading DOJ’s Increased Focus on Environmental Criminal Cases

Note: An earlier post on Perkins Coie’s In the Arena: Law and Politics Update discussed, from a campaign finance lawyer’s perspective, why the prosecution in United States v. Harber signals greater jeopardy in the future for operatives in down-ballot races who coordinate with hastily-formed “super PACs.” And an earlier version of this post, which offers

Recent court filings have confirmed that the U.S. Department of Justice and the Securities and Exchange Commission are continuing to conduct parallel criminal-civil investigations involving insider trading on Capitol Hill.  Most notably, DOJ and the SEC allege that a Congressional staffer provided a lobbyist with information regarding healthcare reimbursement- rate policy, and that the lobbyist leaked the information to Height Securities LLC, a privately held broker-dealer.  The investigation has grown to implicate 44 investment funds, including some of the nation’s largest hedge funds and asset-management advisors. Until 2012, it was somewhat ambiguous whether criminal and civil penalties against insider trading covered material nonpublic information disclosed by federal lawmakers and their staffs.  As Robert Khuzami, the Securities and Exchange Commission’s former Director of Enforcement had conceded, extending insider trading law to the legislative process had no “direct precedent.”  In theory, uncertainty regarding insider trading law’s tenuous reach over Capitol Hill ended on April 4, 2012, when Congress enacted the Stop Trading on Congressional Knowledge Act (the “STOCK Act”). 
Continue Reading Criminalizing Insider Trading from Wall Street to K Street: Taking Stock of the STOCK Act

Whether documents prepared in connection with an internal investigation are protected from disclosure by the attorney-client privilege or work-product doctrine is a topic of continuing interest and current debate.  On March 6, 2014, the U.S. District Court for the District of Columbia filed a much-publicized opinion in United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276, that held that internal investigation materials were not protected from disclosure by the attorney-client privilege or work-product doctrine because the investigation was not conducted in anticipation of litigation or to obtain legal advice.  As colleagues in Perkins Coie’s government contracts practice aptly cautioned, the Barko decision erodes critical protections against such disclosure offered by the attorney-client privilege and work-product doctrine. Fresh on the heels of Barko, just this week, the family of Joe Paterno argued in a Pennsylvania court that documents generated by former FBI director Louis Freeh’s law firm in its investigation into the Jerry Sandusky sex abuse scandal were not protected by the attorney-client privilege.  At the same time, New Jersey lawmakers are seeking to compel disclosure of outside counsel’s materials from the internal investigation regarding the New Jersey Governor’s involvement in the “Bridgegate” scandal.  Barko will likely embolden even greater numbers of litigants, as well as the government, to compel the production of sensitive information regardless of attorney-client and work-product protections.
Continue Reading Cause for Alarm? Protecting Internal Investigations from Disclosure after Barko