Archives for November 2014

Read the full story: National Law Journal

To bolster their conflicting arguments, each side engages in a classic battle of statutory interpretation. They turn to the dictionary for the ordinary meaning of “tangible object.” They fight over such canons of interpretation as “noscitur a sociis” and “ejusdem generis” with citations to a book by Justice Antonin Scalia and Bryan Garner. They look to the legislative history of Sarbanes-Oxley and they argue over Congress’ intent.

 

Yates finds support in briefs from the U.S. Chamber of Commerce, the National Association of Criminal Defense Lawyers, the Cato Institute, Pacific Legal Foundation, Cause of Action, former U.S. Rep. Michael Oxley of Ohio and 18 criminal law professors. They stress the overcriminalization issue, the lack of fair warning to Yates and others that their actions could bring criminal liability, and the canons of statutory interpretation.

Read the full story: National Law Journal

The United States, he added, has existed for more than 200 years “without this mega, all-inclusive, obstruction-of-justice statute with the intent to impede anything, any matter, that the possibility of the United States could or may or may never be interested in. [Congress] didn’t create it buried within the Sarbanes-Oxley Act and this court shouldn’t put it in there now.”

 

Reed Rubenstein, senior vice president for litigation of Cause of Action, an amicus party supporting Yates, said after watching the arguments, “I think they’re struggling to find a limiting principle that will cabin the government’s discretion. The obvious one is that this law was designed to apply to business records. To do anything else leads you into the land of absurdities that justices Breyer and Kennedy pointed out.”

 

Read the full story: Greenwire

The court’s willingness to take up the case appears to be part of a trend among the justices to address instances of potentially over-aggressive prosecution. Last term, they took up a case brought against a woman who tried to poison her husband’s mistress. The government prosecuted her under an international treaty on chemical warfare. The court ruled unanimously in Bond v. United States that the government had no need to use the treaty when myriad other criminal laws would have sufficed (Greenwire, June 2).

 

Notably, groups on both sides of the political spectrum have filed friend-of-the-court briefs backing Yates in the case. The U.S. Chamber of Commerce, National Association of Manufacturers, and American Fuel and Petrochemical Manufacturers have weighed in. The government accountability nonprofit Cause of Action has also filed an amicus brief.