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Is Title III Dead? The Future of Wiretap Challenges in the Wake of Rajaratnam
By Josh A. Cohen
The recent insider trading prosecution of hedge fund titan Raj Rajaratnam raised many eyebrows in the white collar defense bar for its reliance on wiretap evidence. Though Title III permits the government to seek court authorization to eavesdrop in most white collar investigations, prosecutors have traditionally reserved wiretaps for large conspiracy cases involving drugs, weapons, extortion, and organized crime.
Yet the government’s success in securing a wiretap to investigate insider trading was not the most noteworthy headline to emerge from the Rajaratnam case. Far more consequential was the fate of Rajaratnam’s challenge to the government’s showing of Title III necessity. Like many white collar defendants, Rajaratnam was the subject of a long-running parallel investigation by the Securities and Exchange Commission (SEC) that netted millions of pages of documents and hundreds of hours of witness testimony. Although Title III required the Department of Justice to include
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