Tag Archives: Lee S. Richards

American Law Enforcement’s Focus on Cooperation and Self-Reporting

by Lee S. Richards

From recent experience in cross-border investigations (especially the Libor investigation in the United States and the United Kingdom), it has become apparent that many of our colleagues overseas in private practice are bewildered by the propensity of American white collar defense lawyers to rush into the Government to disgorge the product of their internal investigations when representing companies.  Self-reporting in the United States is now a prerequisite to obtaining full cooperation credit and the mitigation of punishment that goes along with it.  See, for example, the recent pronouncements about cooperation by Deputy Attorney General Rod Rosenstein and by James McDonald, Director of Enforcement at the Commodity Futures Trading Commission.[1]

European law enforcement is not premised on the notion that the only clear way to obtain leniency for a business organization is to cooperate, or, indeed, to turn the company in.  For many private lawyers in other countries the imperative to cooperate simply does not compute. Continue reading

Response to Professor Sepinwall’s Article on Sentencing Reforms

by Lee S. Richards

In a recent post to this blog, Professor Amy Sepinwall made a startling argument.  Reflecting on the debate between liberals and conservatives over the Sentencing Reform and Corrections Act of 2016, she strongly suggested that the Act’s strengthening of the mens rea element in criminal cases should be limited to the disadvantaged and not extended to “the already advantaged.”  She applauded the proposed bill for providing “deserved fairness for the disadvantaged,” but appeared to lament the fact that a more stringent mens rea requirement under that bill would be available for “some senior corporate management ‘fat cats,’” as well.  This position is consistent with her defense of the “responsible corporate officer” doctrine, which does away with any mens rea requirement in certain cases against high level corporate officers. Continue reading