Cause of Action, joined by Southeastern Legal Foundation and Texas Public Policy Foundation, has filed an amicus brief calling on the Supreme Court to overturn the conviction of a commercial fisherman who was prosecuted under Sarbanes-Oxley’s anti-shredding provision for throwing fish overboard. According to CoA’s Executive Director Dan Epstein, “the government’s conduct in this case is quintessential Executive Branch overreach. Congress never imagined, much less intended, that the law it passed to deter corporate financial scandals would be used the way it was here. If the National Oceanic and Atmospheric Administration’s actions stand, then the regulatory floodgates will open more Americans to government abuse.” CoA and the amici are represented by Gus Coldebella of Goodwin Procter LLP.
In the brief, CoA and the amici argued that if Captain Yates’ conviction is upheld, then a person who “conceals evidence of a surfboard being used on a beach designated for swimming, throws away a bag of chips from a workplace restroom prior to an OSHA inspection, fails to declare an item on a customs form at the airport, gets rid of a bat used in a teenager’s game of ‘mailbox baseball,’ or discards an empty container of medicine purchased from a foreign pharmacy” has violated SOX and faces up to twenty years in prison.
CoA and the amici also noted that Captain Yates’ case raises troubling questions about the government’s inconsistent application of the law, given the multiple cases of document destruction by federal officials. For example, in 2011, during the course of an Inspector General investigation into NOAA’s Office of Enforcement, then director Dale J. Jones, Jr. actually shredded documents to conceal evidence. Jones was not prosecuted—instead, he was given a different job. Similarly, Charles Edwards, former Department of Homeland Security Inspector General, allegedly destroyed documents to impede a federal investigation. Edwards, too, was reassigned to another federal job.
According to Epstein: “This is an obvious double standard: a taxpayer subsidized employee who destroys documents to obstruct an investigation (conduct clearly covered by the statute) is reassigned, while a taxpayer who throws fish overboard is sent to prison. No system that treats government employees differently than average citizens engenders respect for the law.”