People and Appointments

11/15. The Senate Judiciary Committee (SJC) approved in one unanimous voice vote, without debate, four judicial nominees: Joseph Laplante (to be a Judge of the U.S. District Court for the District of New Hampshire), Reed O'Connor (U.S.D.C., Northern District of Texas, Dallas Division), Thomas Schroeder (U.S.D.C., Middle District of North Carolina), and Amul Thapar (U.S.D.C., Eastern District of Kentucky).

House Passes Schultz Internet Crime Bill

11/14. The House passed HR 3845 [LOC | WW], the "Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2007" or "PROTECT Our Children Act", without amendment, by a vote of 415-2. See, Roll Call No. 1091.

This is a bill to authorize the appropriation of about a billion dollars over eight years to support state and federal government efforts to protect children online.

For a summary of the bill, see story titled "Rep. Schultz Introduces Bill to Fund Programs Related to Internet Crimes Against Children" in TLJ Daily E-Mail Alert No. 1,674, November 12, 2007.

See, full story.

House Passes Bill to Remove Interstate Element from CP Statutes

11/14. The House passed HR 4120 [LOC | WW], the "Effective Child Pornography Prosecution Act of 2007", without amendment, by a vote of 409-0. See, Roll Call No. 1105.

This bill, which was introduced on November 8, 2007, by Rep. Nancy Boyda (D-KS) and Rep. Judy Biggert (R-IL), would amend 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, the provisions of the criminal code pertaining to child pornography (CP) and sexual exploitation of minors.

It would remove from the criminal prohibition of sending or receiving CP the requirement that the CP be sent or received interstate. It would also remove from the criminal prohibition of possession of CP the requirement that the CP was sent or received interstate.

It is in part a response to the opinion of the U.S. Court of Appeals (10thCir) in U.S. v. Schaefer.

Rep. Bob Goodlatte (R-VA) praised the bill, but added that it does not go far enough. He argued that the Congress should also set a mandatory minimum sentence for possession of CP.

House Passes Bill Regarding Internet Monitoring for Convicts

11/14. The House passed a substitute version of HR 719 [LOC | WW], the "Keeping the Internet Devoid of Sexual Predators Act of 2007" or "KIDS Act", by a vote of 417-0. See, Roll Call No. 1092.

This bill was introduced by Rep. Earl Pomeroy (D-ND) in January of 2007. As introduced, it would have amended the Sex Offender Registration and Notification Act to provide that sex offenders must also register "Any electronic mail address, instant message address, or other similar Internet identifier the sex offender used or will use to communicate over the Internet". It also criminalized failure to do so. It also required the Department of Justice to "maintain a system allowing a commercial social networking website to compare the database of registered users of that commercial social networking website to the list of electronic mail addresses, instant message addresses, and other similar Internet identifiers of persons in the National Sex Offender Registry". And then, these web sites could "screen new users or compare its database of registered users to the list".

The House Judiciary Committee (HJC) held no hearing or markup of the bill. Rather, the House Democratic leadership sent to the floor a different bill, with the same number. The bill approved by the House received no HJC hearing of mark up either.

Rep. John Conyers (D-MI), the Chairman of the HJC, offered an explanation for deleting the original provisions. He said that "a sex offender can change his user name and IP address in about two seconds, so we didn't feel that was particularly helpful".

The bill that the House considered and approved authorizes the appropriation of $30 Million over six years to "evaluate computer internet filtering, monitoring and other programs and devices that are designed to filter access to certain web sites, permit monitoring of the use by persons under supervision of internet, and related purposes" and to hire and train probation officers.

The bill as passed also authorizes federal judges to require as a condition of probation that a convicted sex offender cooperate with the installation of internet filtering and monitoring systems.

The bill as passed also adds an amendment to the federal criminal statute regarding laundering of monetary instruments. It adds electronic and digital currencies and stored value cards to the "monetary instruments" covered by the statute. See, story in this issue titled "House Bill Adds Digital Currencies and Stored Value Cards to Money Laundering Statute"

Rep. Conyers stated on the House floor that this bill "addresses the problems of convicted sex offenders infiltrating the Internet to contact and prey on minors."

House Bill Adds Digital Currencies and Stored Value Cards to Money Laundering Statute

11/14. The House passed a substitute version of HR 719 [LOC | WW], the "Keeping the Internet Devoid of Sexual Predators Act of 2007" or "KIDS Act", by a vote of 417-0. See, Roll Call No. 1092.

The House Democratic leadership sent to the House floor a substitute version of the bill that received no committee hearing or markup. Most of the bill pertains to internet filtering and monitoring for convicted sex offenders. However, it also includes a provision amending money laundering law that will affect many areas of activity other than sex offenses.

The bill as passed amends 18 U.S.C. § 1956, regarding "Laundering of monetary instruments".

This statute provides, in part, that "Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity ... knowing that the transaction is designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or ... to avoid a transaction reporting requirement under State or Federal law... shall be sentenced ..."

The statute defines "financial transaction" as "involving one or more monetary instruments". The statute, in turn, provides a definition of "monetary instruments" that includes coin, currency, checks, money orders, negotiable instruments, and many other things.

This bill adds to the list. It adds "electronic or digital currencies, and the corresponding monetary value of any associated account" and "stored value cards or similar devices".

The penalties are severe: up to $500,000 per transaction, and up to twenty years in prison.

Rep. Bob Goodlatte (R-VA) stated in the House that "The key to combating the commercial child pornography industry is to cut it off at its source: money. Virtual money is now the payment method of choice. It is imperative that our law enforcement tools keep pace with changing technologies."

However, the bill does not limit this amendment to commercial child pornography. This provision would affect financial transactions associated with other types of illegal conduct, such as illegal internet gambling, online piracy of copyrighted works, and failure to report online transactions for state sales tax purposes.

NCTA Writes to FCC Regarding 70/70 Test

11/14. Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA) sent a letter to the five Commissioners of the Federal Communications Commission (FCC) regarding the 70/70 test in Section 612(g) of the Communications Act.

Section 612 of the Communications Act, as amended, is codified at 47 U.S.C. § 532. Subsection 532(g) provides, in full, that "Notwithstanding sections 541 (c) and 543 (a) of this title, at such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this subchapter."

McSlarrow (at right) wrote that "According to recent press reports, the Commission is currently considering adopting a finding, in the 13th Annual Report on Video Competition, that the so-called ``70/70´´ test in Section 612(g) of the Communications Act has been met and using that finding to assert broad new authority to reregulate the cable industry. Putting aside the dubious practice of policymaking by press leaks of supposedly confidential FCC documents, the press reports underscore a recurring, disturbing pattern of attempts to set policies that harm consumers."

He asserted that "important factual inquiries are subject to sudden, inexplicable shifts in the FCC's methodology and conclusions".

He elaborated that "rather than reading a statutory grant of authority with an eye toward obvious legislative intent, the broadest conceivable reading -- straining credulity -- is made to maximize the Commission’s apparent authority. In this case, rather than limiting the effect of the 70/70 test to issues involving leased access, as Congress plainly intended, the Commission is to be asked to conclude that a statutory provision embedded in the 1984 Cable Act (when there was substantially less competition) is now authority for a roving mandate to completely reorder the video marketplace according to . . . whom exactly? Certainly not Congress." (Parentheses in original.)

He argued that "there is the relentless drive for more regulation and more government micromanagement without looking at what is actually happening in the marketplace. In this case, instead of just simply thinking through the obvious facts that the marketplace is more competitive than ever, more diverse than ever, and provides more services and more value than ever, the Commission is to be asked to endorse a false view of the video marketplace. That fictional view is even more astonishing because it ignores the reality that the marketplace consists of robust competition among cable, telephone, and satellite video providers, all of whom deliver hundreds of channels of programming."

"Only the Warren data show a penetration figure anywhere near – though still comfortably below – the 70% threshold. But the Warren data are obviously wrong in one important respect. Warren estimates 93 million homes passed by cable. According to public filings, however, the five largest cable operators alone passed nearly 100 million homes, as of June 2007." He added that "it is clear that the 70% penetration threshold has not been met. And in light of the steady growth of cable’s competitors in the video marketplace and the continued decrease in cable’s share of multi-channel video subscribers, it seems highly unlikely it ever will be."

(Also on November 14, FCC Commissioners Deborah Tate and Robert McDowell sent a letter [PDF] to Warren Communications regarding the 70% threshold.)

"The 70/70 test relates only to leased access. Not to cable ownership, not to program access, not to rate regulation, not to wholesale or retail bundling or packaging of cable programming -- not to anything else", wrote McSlarrow.

McSlarrow concluded that "Manipulating data to justify an unsupportable interpretation of regulatory authority does a serious disservice to consumers at a time when the FCC actually has many other important duties it is clearly bound to perform. Real damage is done to the administrative system, and unnecessary litigation is generated, when agency fact-finding and policymaking are conducted in this way."

The relevant FCC proceeding is titled "Annual Assessment of the Status of Competition in the Market for theDelivery of Video Programming" and numbered MB Docket No. 06-189.

McSlarrow wrote in a separate statement that "The reality is that tens of millions of Americans today are saving tens of billions of dollars each year by purchasing video, data and voice services from cable. By contrast, the proposals made by the Chairman for an a la carte mandate and other intrusive regulation will raise prices and reduce programming diversity according to every single credible study. Chairman Martin’s various ``leased access´´ and ``must-carry´´ proposals amount to a bandwidth grab that will limit available channel space for new programmers and new services."

The FCC's next scheduled meeting is on Tuesday, November 27, 2007.

House Passes Bill Regarding Attorney Client and Work Product Privileges

11/13. The House passed HR 3013 [LOC | WW], the "Attorney-Client Privilege Protection Act of 2007", without amendment, by voice vote.

Rep. Bobby Scott (D-VA), the sponsor of the bill, stated during House debate that "It is designed to prevent a practice that has regrettably become too common in many of Federal Government's recent investigations into corporate wrongdoing. I am specifically referring to the government's use of what are called ``coercive waivers´´ to gain access to privileged communications that otherwise would remain private and protected under the constitutional doctrine of attorney-client privilege."

Rep. Scott (at right) He said that the Department of Justice's (DOJ) policy "exposes corporations to an increased risk of prosecution if they claim this constitutionally protected privilege."

Rep. Bob Goodlatte (R-VA) stated that this bill "bars Federal prosecutors from requiring corporations and individuals to waive their attorney-client privilege as a condition of cooperation or for avoiding criminal charges. H.R. 3013 would not prohibit a corporation from voluntarily waiving the attorney-client privilege."

This bill would prohibit certain government tactics. For example, it would provide that "In any Federal investigation or criminal or civil enforcement matter, an agent or attorney of the United States shall not ... demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product".

Nor could the government "condition a civil or criminal charging decision relating to a organization, or person affiliated with that organization, on, or use as a factor in determining whether an organization, or person affiliated with that organization, is cooperating with the Government ... any valid assertion of the attorney-client privilege or privilege for attorney work product".

See also, story titled "Rep. Scott and Rep. Forbes Introduce Bill to Protect Attorney Client Privilege" in TLJ Daily E-Mail Alert No. 1,609, July 16, 2007, and story titled "House to Consider Attorney Client Privilege Protection Act" in TLJ Daily E-Mail Alert No. 1,674, November 12, 2007.

House Passes Broadband Data, Mapping and Grants Bill

11/13. The House passed HR 3919 [LOC | WW], the "Broadband Census of America Act of 2007", without amendment, by voice vote.

The bill authorizes the appropriation of $335 Million over three years. $60 Million would go to mapping current broadband availability. $275 Million would go to a grant program to be run by the National Telecommunications and Information Administration (NTIA).

The bill provides that the "NTIA shall establish a grant program to create and facilitate the work of local technology planning entities that represent a broad cross-section of their community, including representatives of business, telecommunications labor organizations, consumer organizations, elementary and secondary education, health care providers, libraries, higher education, community-based organizations, tribal organizations, and local government."

Rep. Ed Markey (D-MA) stated during the House debate that "This bill represents an indispensable first step in developing an overarching blueprint for broadband policy in the United States." It requires the Federal Communications Commission (FCC) to collect "data from providers of broadband service capability throughout the country, and with developing a series of tiers for categorizing the speeds of such services."

He continued that "The data collected will be disclosed to the public in an annual report that will include: one, the actual number of residential and business subscribers within each five-digit ZIP code with a list of the broadband technologies present in each ZIP code: and, two, the actual number of residential and business subscribers, correlated to each broadband speed tier identified by the FCC on a statewide basis."

Rep. Markey stated that "This bill also encompasses a broadband mapping effort as well as community organization initiatives for unserved and underserved areas to increase knowledge of where, what type, and what speed of broadband service may be available."

Finally, "The legislation also includes authorizations for grants to local planning entities and communities around the country. These grants are designed to increase broadband availability and usage in local communities through so-called ``demand side´´ identification and other initiatives." See, Congressional Record, November 13, 2007, at Page H13559.

Rep. Fred Upton (R-MI) stated in the House that "We were quite fortunate to learn from the successful statewide broadband mapping plan in Kentucky called Connect Kentucky." He added that Connect Kentucky "demonstrated perfectly how a public/private partnership can work with industry in a nonregulatory manner that benefits not only consumers, but also provides a catalyst to greater broadband investments."

See also, story titled "House Commerce Committee Approves Broadband Mapping Bill" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007.

House Passes VOIP 911 Bill

11/13. The House passed HR 3403 [LOC | WW], the "911 Modernization and Safety Act of 2007", without amendment, by a vote of 406-1. See, Roll Call No. 1084.

This bill, which is sponsored by Rep. Bart Gordon (D-TN), requires interconnected VOIP service providers to provide 911 and E911 services. The Federal Communications Commission (FCC) already mandated this by rulemaking in 2005. This bill affirms, revises, and further defines the legal framework.

For a summary of the bill, see story titled "House Commerce Committee Approves 911 VOIP Bill" in TLJ Daily E-Mail Alert No. 1,667, November 1, 2007.

Rep. Ed Markey (D-MA) stated during floor debate that this bill "is designed to ensure that a consumer calling 911 in an emergency from an Internet phone, using so-called ``Voice over Internet Protocol,´´ or VoIP service, can do so with a degree of confidence matching that of traditional phone service and wireless service."

He explained that "The bill seeks to achieve this goal through two key provisions: The first provision extends liability protections to VoIP service providers. The Federal Communications Commission lacks authority to grant liability protection to VoIP service providers, and, therefore, Congress must take action to achieve this policy objective. This is similar to action this subcommittee took in 1999 when such liability protection was accorded to wireless providers."

Secondly, said Rep. Markey, "the bill establishes the right of VoIP providers to access the parts of the 911 infrastructure they need in order to complete 911 calls for consumers. This is an important provision because while the FCC has acted to require VoIP providers to meet enhanced 911 service obligations, the commission did not order that such VoIP providers had a legal right to the components of the 911 infrastructure they would need to fulfill their E-911 obligations under the commission's own rules."

Only Rep. Paul Broun (R-GA) voted against the bill.

4th Circuit Rules in Trademark Parody Case

11/13. The U.S. Court of Appeals (4thCir) issued its opinion [27 pages in PDF] in Louis Vuitton Malletier v. Haute Diggity Dog, a trademark parody case, affirming the judgment of the District Court.

Louis Vuitton Malletier (LVM) is a posh Parisian company that makes, among other things, luxury ladies' handbags. Haute Diggity Dog (HDD) makes, among other things, toys for dogs to chew that resemble luxury products. HDD sold a dog toy that plainly imitates an LVM handbag and LVM marks.

LVM filed a complaint in U.S. District Court (EDVa) against HDD alleging trademark infringement, trademark dilution, copyright infringement, and other claims. The District Court granted summary judgment to HDD on the basis that its products are successful parodies. That opinion is reported at 464 F. Supp. 2d 495.

LVM brought the present appeal, on all of its claims. It lost on every claim.

This opinion may horrify the owners of the most famous brands. LVM's marks are strong and famous. This usually works in favor of the trademark holder when it sues. However, in the present case, the Court of Appeals held that the strength and fame of the marks eliminated possible confusion over whether HDD was engaged in parody. Thus, the stronger the mark, the more vulnerable a company is to imitation by parody -- and all of the irreverent mocking that this brings to the targeted products.

The Court of Appeals affirmed on all claims. The most significant claims, and the ones that the Court of Appeals addressed at greatest length, were the trademark infringement and trademark tarnishment by blurring claims.

With respect to trademark infringement, the Court of Appeals held that the dog toys are not likely to cause confusion because they are successful parodies of LVM handbags. It wrote that for trademark purposes, a parody is "a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner".

It then applied its seven part trademark infringement test set forth in its 1984 opinion in Pizzeria Uno Corp. v. Temple, which is reported at 747 F.2d 1522.

It wrote that "the pet chew toy is obviously an irreverent, and indeed intentional, representation of an LVM handbag, albeit much smaller and coarser. The dog toy is shaped roughly like a handbag; its name ``Chewy Vuiton´´ sounds like and rhymes with LOUIS VUITTON; its monogram CV mimics LVM’s LV mark; the repetitious design clearly imitates the design on the LVM handbag; and the coloring is similar. In short, the dog toy is a small, plush imitation of an LVM handbag carried by women, which invokes the marks and design of the handbag, albeit irreverently and incompletely. No one can doubt that LVM handbags are the target of the imitation by Haute Diggity Dog’s ``Chewy Vuiton´´ dog toys."

"At the same time, no one can doubt also that the ``Chewy Vuiton´´ dog toy is not the ``idealized image´´ of the mark created by LVM. The differences are immediate, beginning with the fact that the ``Chewy Vuiton´´ product is a dog toy, not an expensive, luxury LOUIS VUITTON handbag." The Court of Appeals continued that "the juxtaposition of the similar and dissimilar -- the irreverent representation and the idealized image of an LVM handbag -- immediately conveys a joking and amusing parody. The furry little ``Chewy Vuiton´´ imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog. The LVM handbag is provided for the most elegant and well-to-do celebrity, to proudly display to the public and the press, whereas the imitation ``Chewy Vuiton´´ ``handbag´´ is designed to mock the celebrity and be used by a dog. The dog toy irreverently presents haute couture as an object for casual canine destruction. The satire is unmistakable."

But, the Court of Appeals continued, the parody must also be a non-confusing parody.

The Court of Appeals wrote that "While it is true that finding a mark to be strong and famous usually favors the plaintiff in a trademark infringement case, the opposite may be true when a legitimate claim of parody is involved." It added that "the strength of a famous mark allows consumers immediately to perceive the target of the parody, while simultaneously allowing them to recognize the changes to the mark that make the parody funny or biting."

The Court of Appeals also rejected LVM's dilution by blurring claim. It applied the recently enacted Trademark Dilution Revision Act of 2006 (TDLA), Public Law No. 109-312, which is codified at 15 U.S.C. § 1125(c).

For a summary of the TDLA, see story titled "Senate Approves Trademark Dilution Revision Act" in TLJ Daily E-Mail Alert No. 1,327, March 10, 2006. (The House then approved the Senate's version.) The TDLA was a reaction to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret. See, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

The Court of Appeals wrote that "The TDRA prohibits a person from using a junior mark that is likely to dilute (by blurring) the famous mark, and blurring is defined to be an impairment to the famous mark’s distinctiveness. ``Distinctiveness´´ in turn refers to the public's recognition that the famous mark identifies a single source of the product using the famous mark. To determine whether a junior mark is likely to dilute a famous mark through blurring, the TDRA directs the court to consider all factors relevant to the issue, including six factors that are enumerated in the statute". (Parentheses in original.)

After considering the statutory factors, it concluded that there was no dilution by blurring.

It wrote that "while a defendant’s use of a parody as a mark does not support a ``fair use´´ defense, it may be considered in determining whether the plaintiff-owner of a famous mark has proved its claim that the defendant’s use of a parody mark is likely to impair the distinctiveness of the famous mark."

While LVM demonstrated that is marks are distinctive, famous, and strong, and thereby satisfied some of the statutory elements, this imposed on LVM "an increased burden to demonstrate that the distinctiveness of its famous marks is likely to be impaired by a successful parody."

"Even as Haute Diggity Dog’s parody mimics the famous mark, it communicates simultaneously that it is not the famous mark, but is only satirizing it." The Court of Appeals added that "because the famous mark is particularly strong and distinctive, it becomes more likely that a parody will not impair the distinctiveness of the mark. In short, as Haute Diggity Dog's ``Chewy Vuiton´´ marks are a successful parody, we conclude that they will not blur the distinctiveness of the famous mark as a unique identifier of its source."

This case is Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-2267, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, D.C. No. 1:06-cv-00321-JCC, Judge James Cacheris presiding. Judge Niemeyer wrote the opinion of the Court of Appeals, in which Judges Traxler and Wilson joined.

Martin Releases Media Ownership Proposal

11/13. Federal Communications Commission (FCC) Chairman Kevin Martin released a proposal for revisions to the FCC's obsolete rules regulating ownership of newspapers and broadcast media.

He proposed allowing one entity to own a newspaper and one television station or one radio station, in the largest markets, subject to criteria and limitations.

See, full story.

House to Consider Attorney Client Privilege Protection Act

11/12. The House is scheduled to consider sometime during the week of November 12, 2007, HR 3013 [LOC | WW], the "Attorney-Client Privilege Protection Act of 2007".

Rep. Bobby Scott (D-VA), Rep. Randy Forbes (R-VA), and others introduced this bill on July 12, 2007. See, story titled "Rep. Scott and Rep. Forbes Introduce Bill to Protect Attorney Client Privilege" in TLJ Daily E-Mail Alert No. 1,609, July 16, 2007.

It was referred to the House Judiciary Committee (HJC). The HJC's Subcommittee on Crime, Terrorism, and Homeland Security approved the bill on July 24, 2007. The full committee approved the bill on August 1, 2007.

The companion bill in the Senate is S 186 [LOC | WW], the "Attorney-Client Privilege Protection Act of 2007". Sen. Arlen Specter (R-PA) introduced that bill on January 4, 2007.

These bills target the Department of Justice (DOJ) and other federal government agencies that abuse their power to compel disclosure of communications protected by the attorney client privilege and attorney work product, including compelled disclosures by companies and persons who are not the targets of government prosecutions and enforcement efforts.

This bill recites in its findings that "the Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions."

It adds that "An indictment can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment", and that "Waiver demands and other tactics of Government agencies are encroaching on the constitutional rights and other legal protections of employees".

This bill would prohibit certain government tactics. For example, it would provide that "In any Federal investigation or criminal or civil enforcement matter, an agent or attorney of the United States shall not ... demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product".

Nor could the government "condition a civil or criminal charging decision relating to a organization, or person affiliated with that organization, on, or use as a factor in determining whether an organization, or person affiliated with that organization, is cooperating with the Government ... any valid assertion of the attorney-client privilege or privilege for attorney work product".

The Senate Judiciary Committee (SJC) held a hearing on September 18, 2007, titled "Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum". See, memorandum [21 pages in PDF; 2 MB] of Paul McNulty.

Dick Thornburgh (Kirkpatrick & Lockhart, and former Attorney General) wrote in his prepared testimony that "the McNulty Memorandum is so inherently problematic that there is nothing to be gained by continuing to wait and see how it is implemented. To the contrary, Congress should enact legislation such as S. 186 promptly to restore the attorney-client privilege, the work product doctrine and the Constitutional rights of individuals to their proper places in our system of justice."

Karin Immergut (U.S. Attorney for the District of Oregon) wrote in his prepared testimony that "The McNulty Memorandum strikes the proper balance between the protection of the attorney-client privilege and the legitimate need of law enforcement to prosecute corporate misconduct. It should be given time to work."

See also, prepared testimony of Daniel Richman (Columbia Law School), prepared testimony of Michael Seigel (University of Florida law school), and prepared testimony of Andrew Weissman (Jenner & Block).

Go to News from November 6-10, 2007.