NACDL

KPMG Case is a Victory Over the Thompson Memo

The June 26 decision in United States v. Stein, SDNY, No. 05-Cr-0888, was more than a victory for the defendants, who had their right to company-paid attorneys’ fees restored to them by a federal judge. It was the first time a federal court had recognized the arrogance and inherent unfairness of the Thompson Memo, which is the government’s roadmap for coercing companies facing possible criminal prosecution into settling investigations before indictment.

In an 88-page rebuke to the U.S. Justice Department, Judge Lewis Kaplan made clear there is a difference of constitutional dimensions between the government’s awarding credit for cooperation in the form of providing more information to the government, explaining documents, making witnesses available, etc. — and awarding credit for things that have no logical relevance to the concept of cooperation, and moreover, involve practices that are antithetical to our adversarial system of just