Second Circuit cites article by Professor Lisa Kern Griffin regarding compelled cooperation

August 29, 2008Duke Law News

Aug. 28, 2008 — The 2nd U.S. Circuit Court of Appeals has upheld the dismissal of fraud charges against 13 former partners and employees of accounting firm KPMG, citing the work of Professor Lisa Kern Griffin in its decision. A former federal prosecutor, Griffin is a scholar of federal criminal justice policy. She joined the Duke Law faculty earlier this year.

Written by Chief Judge Dennis Jacobs, the decision held that the government had interfered with the indicted employees’ Sixth Amendment right to counsel when it pressured KPMG to withhold payment of the defendants’ legal fees. In doing so, prosecutors were following U.S. Department of Justice guidelines, set out in the so-called “Thompson Memorandum,” that require corporations to cooperate and isolate or identify employee targets in order to avoid corporate prosecution.

According to the court's reasoning, the government's threat to indict the corporation compelled KPMG to cooperate with authorities by violating its policy of advancing employees legal fees, wrote Jacobs. In reaching this novel conclusion about the boundaries of state action, he quoted Griffin’s 2007 article, “Compelled Cooperation and the New Corporate Criminal Procedure,” (82 N.Y.U.L. Rev. at 367): “The threat of [ruinous indictment] brings significant pressure to bear on corporations, and that threat ‘provides a sufficient nexus’ between a private entity’s employment decision at the government’s behest and the government itself.’”
Other News
  • Susan Akers JD/MEM ’91

    After majoring in biology at Wake Forest University, Susan Akers broke new ground for Duke Law students by pairing her JD studies with the pursuit of a graduate degree in environmental management from the Duke School of Forestry and Environmental Studies (now called the Nicholas School of the Environment).

  • Environmental Law and Policy Clinic comments on proposed international regulations for mining the ocean floor

    The Environmental Law and Policy Clinic weighed in on the first-ever regulations proposed for mineral exploitation of the ocean floor in June, emphasizing the need to protect deep-sea biodiversity and ecosystem function.  Little is known about life in the deep sea, a region scientists have only recently begun to explore, but discoveries over the past few years by Duke scientists and others have provided glimpses of an astonishing range of biodiversity — including unique life forms thriving in super-heated thermal vent environments.