f ~ Spotlight msm: • snrrzmnnn 2006
T Torture Controversy I l
T `\` Pentagon GC I GC is chipped off the Rambus block.
; William Haynes ll. TT ''``I ""“â€"""—"""""`"`—"` `"````` N
g . F page 22
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1 Promise Breakers y
it ~ " ‘
; OST COMPANIES tomers. After Stolt-Nielsen began coop- =··
, assume that they’ve erating with the government, justice ._ n it, · _
successfully dodged won guilty pleas from the other shippers, 1 ..-- l _"f·jr* . -5;;: _ .
i ` a bullet when they which have been hit with $62 million in -°-3 '..` = - ._ "*`__ _:.. " K
sign a nonprosecu- fines and seen several of their executives .. 5,_ H _ _‘ ‘ -- I
-7 tion agreement with the government. go to jail. Stolt-Nielsen and its executives . §‘.·___ _ ` a¢
il That’s certainly what shipping giant escaped fines and prosecution when the l 2* . Xl;
. . . . . . - ·» _._... .. 4;. ‘ . Q -
j g Stolt-Nielsen S.A. thought when its sub- company signed ll5 nonprosecution e -;_.&;.=:' tf, ·.
°` sidiary struck a deal three years ago to agreement withjustice injanuary 2003. _ ` .-
tj avoid federal crimi- Six months later, the government
l The feds nal charges for anti- filed a criminal complaint against Stolt-
trash a dea| trust violations. Nielsen executive Richard Wingfield,
But shortly after adding that it would indict the company stand trial is not generally an injury for
- with Stolt- . . . ,, .
g i the deal was con- justice lawyers separately told Stolt- constitutional purposes, the Third
Ni€I$€n and eluded, the govern- Nielsen that they were revoking the non- Circuit judges said.
i. _' try to fndlct ment said it would prosecution agreement because the com- That’s simply wrong, Stolt-Nielsen
j . the shipping indict Stolt-Nielsen pany had lied aboutwhen it had stopped argues in its petition to the Supreme
f anyway because the its wrongdoing. Court. The company says that an indict-
€0mPany• company had bro- ment "would have a catastrophic and
ken the pact. Stolt- Stolt-Nielsen responded by asking a incurable impact" by letting creditors
» Nielsen maintains that the government federal district court judge in Philadel— claim an adverse change, throwing the
‘ is the one who isn’t living up to the deal, phia to block the indictment. In january company into default, accelerating
’ . and in july asked the U.S. Supreme 2005 judge Timothy Savage sided with repayment obligations, and possibly
» Court to block the indictment. the company saying that the government prejudicing Stolt-Nielsen’s ability to re-
U.S. Department of justice spokes- couldnt rescind the agreement prior to a finance maturing debt or to sell assets.
_ woman Gina Talamona says the Stolt- judicial ruling that Stolt-Nielsen had Susan Hackett, GC of the Association
Nielsen case is the first time that lawyers breached it. Plus, Savage added, there was of Corporate Counsel, says that her
in the agency’s antitrust division have no breach because the company had group plans to file an amicus brief with
if tried to revoke a nonprosecution deal ceased its wrongdoing by the time it the Supreme Court on Stolt-Nielsen’s
· (also called an amnesty agreement). signed the agreement—and no other date behalf. According to Hackett, the gov-
E ~ Talamona saysjustice doesnt keep such is mentioned in the agreement. emment’s attempt to renege on its deal
ii i statistics outside the antitrust division, But this past March, the U.S. Court of with the company has caused in-house
u but other observers say they don’t know Appeals for the Third Circuit reversed counsel to question whether nonprose-
of any other instance in which the gov- Savages ruling. The appellate panel found cution agreements can still deliver their
{ g ernment has tried to rescind a deal with that a valid nonprosecution agreement main benefit———freedom from indictment.
j a corporate defendant. can bar the government only from pros- “lf that benefit is now in doubt or
T Q The governments allegations focus ecuting a company not from indicting it. undermined," Hackett says, "it will
. on Stolt-Nielsen Transportation Group The circuit court said that judge Savage impact the advice that corporate coun-
E Ltd., the Dutch subsidiary of the Lon- did not have the authority under the sel provide. And it will chill the likeli-
A E don—based parent company justice says Constitutions separation of powers pro- hood that clients will be as interested
g _ § the subsidiary colluded with other ship- vision, to stop justice from indicting. in self-reporting or early resolution of
~ § pers in 2002 to fix prices and share cus- "Simply being indicted and forced to complex cases." —-—SUE REISINGER
CORPORATF COUNSEL Sentember 2006 21
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