What did Elizabeth Holmes gain by putting the government to its proof?
Walmart took issue with the government’s assertion that national pharmacy chains are required to analyze and share prescribing data across its stores and with line pharmacists. After waiting four years for the government to initiate legal proceedings, Walmart took the offensive and filed a declaratory judgment action in the Eastern District of Texas. In essence, Walmart alleged to the court that the government was creating and enforcing laws that did not exist.
In the current administration, it is somewhat unusual for the government to prosecute corporate wrongdoing using every weapon in its arsenal. Particularly given the Department of Justice’s recent practice of publicly announcing decisions not to prosecute corporations that have been under criminal investigation, the recent announcement of resolved criminal charges against Purdue Pharma is unique.
The onset and continuation of COVID-19 distancing precautions has led to fewer criminal prosecutions in general and fewer “white collar” prosecutions in particular. White collar criminal investigations are dependent upon search warrants for business records, witness cooperation and grand jury testimony. It shouldn’t come as a shock to anyone that witnesses are even less welcoming of government agents into their homes and offices (and government agents are certainly less inclined to make such visits) at this time.
Much like baseball players, politicians (or political operatives) are making headlines for not playing the game by the rules.
There is no published data I’m aware of to support this, but it generally seems that prosecutors decline to charge a white-collar case when an aggrieved company has the resources to pursue a civil action against the fraudster to recover its losses.
According to the Department of Justice, more and more white-collar criminal defendants are being prosecuted every year. At the same time, the DOJ has decreased the frequency with which it prosecutes corporations.
In 2011, the FBI’s National Gang Intelligence Center Report identified the Juggalos — criminal-minded fans of the musical act Insane Clown Posse — of the as a “hybrid gang,” which was nebulously defined as a loosely organized group of individuals with multiple affiliations and a high propensity for random criminal activity. Juggalos are no longer classified as a gang.
In an ironic example of the blue-collar/white-collar dichotomy in golf, right around the time that Tiger Woods was running his Escalade into a fire hydrant after failing to keep Vegas in Vegas, Phil Mickelson found himself subjected to an insider trading investigation.
Details and differences in the plea agreements entered by former Donald Trump associates Paul Manafort and Michael Cohen provide some insights into potential flexibility in cutting deals with federal prosecutors.