Read the full story: Law360
Reed Rubinstein, the senior vice president of litigation at Cause of Action, which is representing LabMD in the administrative proceeding, responded to Tiversa’s motion in a statement provided to Law360 on Monday.
“It’s clear that Tiversa does not want Mr. Wallace to testify, but all we’ve wanted since we began this case is for the facts and the truth to come out about the FTC’s overreach against LabMD,” Rubinstein said.
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.
Read the full story: SCOTUSblog
In upholding Yates’s conviction under that provision, the U.S. Court of Appeals for the Eleventh Circuit rejected his lawyers’ argument that the law was aimed solely at a “document offense.” The Eleventh Circuit said that, since the specific law did not define its terms, they were to be given their ordinary or natural meaning, and under that reading, a fish qualifies as a “tangible object.”
That is the ruling the Supreme Court agreed to review, last April, declining to also review a separate claim that Yates had made about exclusion by the trial judge of an expert witness his lawyers had wanted to call to the stand.
His petition was supported by the National Association of Criminal Defense Lawyers, urging the Court to hear the case and to act against the “over-criminalization” of conduct by expansive interpretations of federal laws by prosecutors. The same argument was made by another advocacy group, Cause of Action.
By Dan Epstein
Wednesday, the Supreme Court heard arguments in a case that will determine whether a Florida fisherman, alleged to have thrown undersized fish overboard, was properly convicted under a law passed to stop the crimes committed by the corrupt executives who brought down Enron.
In 2007, Captain John Yates was fishing off the coast of Florida when the National Marine Fisheries Service (NMFS), whose officers were deputized as federal agents by the National Oceanographic and Atmospheric Administration (NOAA), inspected his boat. These agents claimed that Yates had caught undersized fish and instructed him to return to shore for inspection. Before the boat reached shore, Yates allegedly told his crew to throw some of the fish overboard, an act that typically results in a $500 fine or temporary license suspension.
Nearly three years after the fact, federal prosecutors charged Yates under the Sarbanes-Oxley Act (SOX)—the sweeping legislation passed after Enron’s collapse to crack down on securities and accounting fraud. The federal government argued that throwing fish overboard was “shredding” of “tangible evidence.” “Shredding” is a severe crime under SOX, carrying a maximum 20-year prison sentence.
SOX’s anti-shredding provision was meant to stop executives from destroying files, not imprison fisherman for throwing fish back into the sea.
Captain Yates was convicted. He appealed and the Supreme Court took his case.
Congress intended SOX to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws,” and to “safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation.” Put simply, SOX’s anti-shredding provision was meant to stop executives from destroying files, not imprison fisherman for throwing fish back into the sea. That’s why one of the bill’s authors, former Representative Michael G. Oxley, filed a brief supporting Yates.
Yates could never have known or imagined that SOX criminalized throwing undersized fish overboard. And questions from the Justices to the government reflected their skepticism at the government’s claim that it did.
Justice Stephen G. Breyer said the law, which is “far broader than any witness-tampering law, any obstruction statute, any lying to a federal agent law…” could mean a person who throws away a government form delivered by a mail-carrier was a felon. He asked for a limiting principle on government power.
Justice Samuel Alito, citing the possibility that a person who threw back a single trout caught on federal land could be at risk of prosecution for “shredding.” He also asked for a limiting principle. The government, however, recognized none.
As is almost always the case in regulatory overcriminalization cases, Captain Yates’s punishment far outweighed the “crime.”
As Chief Justice John Roberts said as the government’s attorney was describing Yates’ behavior, “You make him sound like a mob boss or something.”
Captain Yates spent 30 days in prison with three years of supervised release. He suffered DNA collection and travel and financial restrictions, and has all but become a pariah in the fishing industry, effectively losing his ability to earn his living by doing what he loves.
Cause of Action saw overcriminalization at work when we defended California marine biologist Nancy Black against NOAA’s effort to imprison her for up to 27 years for misdemeanor whale feeding. Although Cause of Action and the rest of Ms. Black’s legal team were able to spare her from jail time, her loss of grant funding, years of fighting the government, and reputational damage to her business took a heavy toll.
Unfortunately, the effects of overcriminalization are not limited to just one marine biologist in California or one fisherman in Florida. If the Court allows Captain Yates’s conviction to stand, it could open the floodgates to even more abuse by federal agencies that selectively enforce regulations through the criminal law and send the message that the government is above the law.
During the years that Captain Yates was stuck in the legal system there were multiple cases of document destruction by federal officials but no SOX prosecutions.
In 2011, during the course of an Inspector General investigation into NOAA’s Office of Enforcement (the agency that investigated Yates), then director Dale J. Jones, Jr. actually did shred documents to conceal evidence, conduct clearly prohibited by SOX. 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 into his office. Edwards, too, was reassigned to another federal job.
This is an obvious double standard: a federal employee who destroys documents to obstruct an investigation, conduct clearly covered by SOX, is reassigned, while a taxpayer who orders fish thrown overboard is imprisoned.
No system that treats government employees differently than average citizens engenders respect for the law. Moreover, the differential treatment of taxpayers and government officials suggests that SOX is so vague that prosecutors cannot apply it consistently.
None of this is to say that criminal activity should go unpunished, or that laws shouldn’t be applied as written and intended—they unquestionably should. But overzealous federal agencies should not have free reign to reach into federal criminal law to create ways for unsuspecting citizens to be prosecuted. That cannot be justice. Therefore, the Court should reverse Captain Yates’s conviction to halt agency abuse.
Dan Epstein, is executive director of Cause of Action, a non-profit government oversight organization which filed an amicus brief in Yates v. United States.
FOR IMMEDIATE RELEASE CONTACT:
November 12, 2014 Mary Beth Hutchins, 202-400-2721
DOE Follows the Rules After HARDI’s Strong Stand Against Overreach
COLUMBUS, OHIO – Because of a settlement between the Department of Energy (DOE), the Heating, Air-Conditioning & Refrigeration Distributors International (HARDI) and other stakeholders, DOE reissued a Request for Information (RFI) on energy efficiency standards for residential central air conditioners and gas furnaces on October 31, 2014. DOE’s RFI, published in the Federal Register, seeks public comment on its authority to develop energy efficiency standards through a “Direct Final Rule.”
Thanks to the government oversight and accountability group Cause of Action, HARDI was able to effectively halt administrative abuse by forcing the DOE to reassess its rulemaking. DOE arbitrarily attempted to set a rule driving up energy costs for consumers and businesses without following proper procedures to protect the public’s right to have input and comment. This settlement requires DOE to respect the rule of law and is a significant victory for consumers and businesses.
HARDI Executive Vice-President & Chief Operating Officer Talbot Gee said, “We have said from the start that we believed the processes which led to this rule, litigation and settlement were broken. We were pleased to have secured a commitment from DOE to assess this issue and are pleased that HARDI’s comments on the matter are a key component of the request and hopefully the basis for fixing this broken process.”
Cause of Action’s Executive Director Dan Epstein said, “When federal agencies substitute their own agendas for the rules protecting the public’s right to have notice and to comment on proposed regulatory action, then government accountability and transparency are lost. Therefore, this notice, the first step by the DOE since HARDI’s successful settlement, is a major victory for all Americans who value fair government. HARDI’s members took a firm stand, and it has paid off for both consumers and for businesses.”
About HARDI:
Heating, Air-Conditioning and Refrigeration Distributors International (HARDI) represents more than 460 wholesale companies and 300 manufacturing associates as well as nearly 140 manufacturer representatives. HARDI members represent an estimated 85 percent of the dollar value of the HVACR products sold through distribution.
About Cause of Action:
Cause of Action a nonprofit, nonpartisan government accountability organization that investigates, exposes, and fights job-killing federal government regulations, waste, fraud, and cronyism. Cause of Action uses investigative, legal, and communications tools to educate the public on how transparency and accountability protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.
To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins, mary.beth.hutchins@causeofaction.org
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Read the full story: Legal Insurrection
The real problem with these regulations, however, has less to do with the rules themselves, and more to do with the consequences that befall those who break the rules. Groups like Cause of Action help those who fall under the hammer of big government regulation fight back against overcriminalization and in some cases, recoup their losses. They’re currently defending marine biologist Nancy Black after an alleged violation of the Marine Mammal Protection Act (MMPA.)
Cause of Action and 13 other groups sent a joint letter to the Office of Government Information Services (OGIS) urging it to investigate the unauthorized and abusive practice by administrative agencies of sending “administrative closure” letters in lieu of responding to proper requests for information. The Freedom of Information Act gives anyone the right to request documents from a federal agency but various administrative agencies are finding a backdoor way to close requests without producing documents. Specifically, after delays of months and, at times, years, FOIA officers are writing to requestors that unless the requestor provides certain information within a proscribed short period of time, the agency is going to close the request. The effect of such a closure is that if the requestor is forced to send a new request, it will go to the end of the line for processing (resulting in further delays of months to years). The coalition letter requests an investigation into this practice, and Cause of Action is hopeful that such an investigation will result in a directive to agencies to end this practice.
Read the letter here.