Parallel Proceedings CWAG Parallel Civil and Criminal Proceedings

Parallel Proceedings CWAG

Parallel Civil and Criminal Proceedings • When AG has authority to initiate both civil and criminal proceedings, raises issues of timing and potential conflicts • Parallel proceedings policy that maintains appropriate walls between civil and criminal divisions • Coordination between civil and criminal divisions to determine whether simultaneous parallel proceedings appropriate

Rules • Scope – Comment 18—Attorney General may be authorized to represent several government agencies when a private lawyer could not. • 1. 13—Confidentiality – Comment 9: Government requires a different balance. • Rule 3. 8—Prosecutors – AG’s ministers of justice…not just advocates.

Permissible • “[t]here is nothing improper about the government undertaking simultaneous criminal and civil investigations” provided that we use those proceedings and associated investigative tools for their proper purposes and in appropriate ways. United States v. Stringer, 535 F. 3 d 929, 933 (9 th Cir. 2008), vacating in part, and reversing in part, United States v. Stringer, 408 F. Supp. 2 d 1083 (D. Or. 2006); see also United States v. Kordel, 397 U. S. 1, 10 (1970).

Managing Parallel Proceedings • Intake • Investigation/Case Preparation • Resolution

Intake • Regulator – Criminal/Civil/Regulatory/Administrative – Consider, Communicate and Explore remedies • Target – Preserve Information – Develop collection/disclosure strategy – Request coordinate separateness – Who has primary jurisdiction/responsibility

Preparation/Investigation • Regulator – Investigative strategies to allow information sharing • Means other than Grand Jury subpoenas (initially)? • Administrative subpoena, search warrants, investigative demands – Should not jeopardize Grand Jury – Civil—apprise of discovery material to criminal investigation

Preparation/Investigation • Target – Coordinate internally • Request through a single point for review? – Establish Collection Protocol • Single response/Tailored Responses – Inform Agencies of Related Proceedings? • • Promotes credibility Reduces costs Consistency in Requests Piling on?

Resolving • Regulator – Assess impact of decisions – Recognize issues such as collateral estoppel, res judicata – Understand which statute you are proceeding under and its effect – Communicate to fully understand impacts and effects of resolution of one proceeding…global? – No threats (Garrity) – No quid pro quo between civil/criminal

Resolving • Target – Is a “global” resolution available • Ends all proceedings at once • Evidentiary rules allow introduction of statements made to regulators in civil proceedings—avoids this – Each agency has own discretion and process • One may resolve quickly while another wants a more full investigation/factual background – Encourage Regulators to Coordinate – Engage all agencies with a stake – Restitution may be a means to foreclose private class actions – Waive privilege?

Immunity? • Practical considerations − immunity issues Garrity v. New Jersey, 385 U. S. 493 (1967) − effect of settlement of civil proceedings on criminal case (consider adopting standard language in settlement agreements to preserve) − notice to defense counsel (not required by can’t mislead)

Civil to Criminal • Can’t initiate or use one sort of process to advance the other • Exchange of information – civil to criminal • Civil action can’t be brought to gather information in criminal matter, but appropriate to alert criminal division of information obtained

Criminal to Civil… • Exchange of information – criminal to civil • Also appropriate for criminal division to alert civil division, subject to grand jury limitations • Grand jury materials are secret and may not be shared beyond members of prosecuting attorney’s staff − attempt to obtain as much as possible outside GJ process − compartmentalize and segregate GJ materials

What is Jeopardy? • Potential for a stay • Be aware of potential double jeopardy claims • Hudson v. United States, 522 U. S. 93 (1997); Double Jeopardy applies only to criminal punishments − Statutory construction – did the legislature intend the penalty to be criminal or civil; − even if civil, was statutory scheme so punitive in purpose or effect that it transformed what was intended to be civil into a criminal penalty

7 Factors of Jeopardy • In making that determination, Hudson looked at seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963) − does sanction involve affirmative disability or restraint − has it historically been regarded as a punishment − does it come into play only with finding of scienter − does it promote retribution and deterrence − is the behavior it applies to already a crime − whethere is an alternative purpose to which it may be connected is assignable for it − does it appear excessive in relation to that alternative

Factors + Statute • Even when using these factors, they “must be considered in relation to the statute on its face” and “‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. ” 522 U. S. at 100. • Hudson Court applied that analysis to OCC money penalties and debarment sanctions and found no Double Jeopardy obstacle to criminal indictments

Key To Parallel Proceedings • • Communication Compartmentalization Coordination Conclusion