Thompson Memo Held Unconstitutional
The Judge’s lengthy opinion is thoughtful and scholarly, and full of the language of liberty and individual rights. Among other things, the Judge’s opinion states that “[t]he imposition of economic punishment by prosecutors, before anyone has been found guilty of anything, is not a legitimate governmental interest – it is an abuse of power.”
While Judge Kaplan's ruling is unquestionably a significant event that will impact pending prosecutions across the country, the specific practical consequences outside the KPMG tax shelters case will remain to be seen. His ruling is based on a detailed record of the particular facts and circumstances of that specific case. In addition, as the opinion of a U.S. District Court Judge, the decision has persuasive but not precedential authority. Nevertheless, Judge Kaplan’s opinion is important and will have ramifications, and raises a host of potentially interesting questions in connection with the indictment of the Milberg Weiss law firm, among many other pending cases.
The wsj.com law blog's comments on Judge Kaplan's opinion can be found here. The wsj.com law blog's links to several major newspaper's stories and editorials about Judge Kaplan's opinion may be found here.
An interesting comment in the White Collar Crime Prof blog focusing on the legal duties of corporation's to advance defense costs and on the possible implications of Judge Kaplan's opinion for the D & O insurance industry can be found here.
The D & O Diary's prior posts on the Thompson Memo may be found here. The Wall Street Journal's (subscription required) article on the Milberg Weiss indictment may be found here.