Brady

Describes motivation process for creativity with emphasis on intrinsic motivation by Corey K Katir

Now that the Super Bowl is over, do you remember the NFL lockout? Me neither. Instead, Iave been Tebowing about these five things:

1) When did NFL fame become more about off-field drama than winning?

Tom Brady, Peyton Manning and Tim Tebow walk into a bar. Thatas a either a joke or a headline, and then there would be a half-hour documentary on three different networks a aThe Ballad of Tom Brady and Yoko Bundchen.aRead full article >>

Two throws with two totally different outcomes in the waning seconds of Super Bowl XLVI helped the New York Giants topple the New England Patriots once again.

On second and 11 with 4:06 remaining in the game, Tom Brady threw a 23-yard pass to Wes Welker, which Welker uncharacteristically dropped. How uncharacteristic? The All-Pro only dropped five passes all year, including the playoffs, none on a throw more than 10 yards downfield.Read full article >>

Can the Patriotsa offensive line neutralize the Giantsa fierce pass rush? Will Rob Gronkowski be as effective on a bad ankle? Will the Patriotsa young secondary hold its own against the likes of Hakeem Nicks and Victor Cruz?Read full article >>

Here are 12 fearless predictions for Super Bowl XLVI.

1. Tom Brady will throw for more than 300 yards, including three touchdown passes. After one of them, one of the announcers will inform us that he is married to a supermodel because some of us might have forgotten that despite being reminded repeatedly during the pregame show. Read full article >>

If the New England Patriots win Super Bowl XLVI, is Bill Belichick the greatest NFL coach in history? Is Tom Brady the greatest quarterback?

These are legitimate conversations in New England, where the local bar has an aIn Bill we trusta bumper sticker behind the tequila.. If the Patriots win, it will mean they have been to five Super Bowls and won four in 11 years.Read full article >>

Letas face it, the NFL playoffs are a crapshoot. We all know that you need a great quarterback to get you to the playoffs on a consistent basis. But when it comes down to wins and losses in January, a quarterback or team simply needs a good dose of good fortune.Read full article >>

In connection with a May 14, 2012 hearing, Judge James Selna has prepared Tentative Minute Orders which deny two motions in the Carson FCPA cases. In a Motion to Suppress and a Motion to Dismiss, the defendants raised issues regarding DOJ’s relationship with Control Components, Inc. (“CCI”), the employer of defendants, who cooperated with the investigation and provided certain information. In addition to our discussion below, Professor Mike Koehler of The FCPA Professor Blog takes a careful look at the case (which includes copies of the tentative rulings, here and here).

On July 31, 2009, DOJ announced that Control Components, Inc. (“CCI”), a California company that designs and manufactures valves, had pled guilty to a three-count criminal information for its involvement in a lengthy scheme to secure contracts in approximately 36 countries by paying bribes to employees of various companies. That plea marked the culmination of an internal investigation by CCI and the company’s cooperation with DOJ. The cooperation led to the indictment of six former executives of CCI in the Carson case, alleging that the group conspired to violate the FCPA in order to secure contracts which yielded approximately $46.5 million in profits.

As discussed here, on March 5, 2012, several of the defendants in the Carson case filed a Motion to Dismiss and a Motion to Suppress in the case.

• In the Motion to Suppress, defendants argued that because CCI had collaborated with DOJ during the investigation, it was, in effect, a Government agent or a state actor who improperly compelled statements from the defendants during an internal investigation, violating their Fifth Amendment rights. As a result, defendants argued that the statements should be suppressed.

• In the Motion to Dismiss, defendants argued that “the impact of the cumulative impediments – unique investigation tactics preventing Defendants access” to certain evidence deprived them of their Due Process and Sixth Amendment rights, (“including the right to present a complete defense”) and that “dismissal is the only appropriate remedy” for such severe prejudice.

As discussed here, the Government filed its Opposition to the Motion to Suppress on April 2, 2012, arguing, among other things, that the statements should not be suppressed because the employer’s “actions were not the result of any pressure or influence from the government sufficient to convert the Company’s lawyers to state actors.” On April 6, 2012, the Government filed its Opposition to the Motion to Dismiss, arguing that the motion was meritless because, among other things, the Government “has gone beyond its discovery obligations” to make sure that defendants receive the appropriate documentation that had been in the possession of CCI.”

An interesting development occurred while the motions were pending: two of the four defendants who had filed the Motion to Dismiss and the Motion to Suppress – Stuart and Hong (“Rose”) Carson – pled guilty to one count of violating the FCPA on April 16, 2012. However, the remaining movants, Paul Cosgrove and David Edmonds, continue to pursue the motions. As discussed here, the two remaining defendants Reply Briefs on April 30, 2012.

The Motion to Suppress. With respect to the Motion to Suppress, Judge Selna rejected the defendants’ theory that CCI had become a “state actor.” After reviewing the correspondence between Steptoe & Johnson, counsel to CCI and its parent corporation (IMI plc), and DOJ prior to the interviews of Messrs. Cosgrove and Edmonds, Judge Selna found that “there is no basis to conclude on the basis of events that transpired prior to the interviews or in the aftermath that the Steptoe lawyers were acting as agents of the Government.” Instead, the Court determined that there was nothing “more than a unilateral determination on the part of CCI and its parent to cooperate with the Government.” Judge Selna acknowledged that “it was in CCI’s interest and a legitimate activity to investigate potential criminal conduct in its business operations.” The Court also noted that the Government was not involved with the Defendants’ interviews, and corporate counsel’s acts were not “so intertwined with the Government” that the interviews could be viewed as Government conduct, specifically pointing out that “[t]he record is clear that CCI through its parent IMI had made a decision to conduct an internal investigation before Steptoe contacted the Government.”

Judge Selna also reviewed the issue of whether the defendants were coerced to give statements during the investigation, and if so, did the Government bring about the coercion? He pointed out that: (1) none of the defendants said they were threatened with termination; (2) while the company instructed defendants to cooperate, there were no threats in those instructions; (3) there was no evidence that the Government “precipitated or encouraged any threats of sanctions for failing to cooperate;” and (4) the company had already made a decision to suspend the defendants. The Court concluded that “the Defendants’ Fifth Amendment right were not violated during the conduct of the Steptoe interviews” and denied the Motion to Suppress.

The Motion to Dismiss. Judge Selna also denied the Motion to Dismiss, stating that many of the arguments raised in the motion had “been previously presented and rejected.” For example, a theory based on the claim that Steptoe and CCI were, in effect, Government agents was already denied in the Motion to Suppress discussed above. The Court also rejected the argument that the Government had interfered with defense access to witnesses, pointing out that while “the Government has a responsibility not to interfere with witness access, … the Government is not the guarantor of such access.” According to Judge Selna, defendants failed to prove the Government interfered with access to those witnesses or that their testimony was going to be “material and favorable” to the defense. The Court also rejected arguments regarding the production of documents, the ability of defendants to secure foreign documents by Letters Rogatory, or the production of documents under Brady v. Maryland, 373 U.S. 83 (1963). Finally, the Court ruled that “[t]ere has been no systemic or systematic denial of access to evidence enabling the Defendants to present a complete defense.”

The theories in these two motions raised interesting issues which could have impacted future cases where a company cooperated and individual employees did not and faced the Government alone. In this case, the Government concluded that, with respect to the issues raised by defendants, the Government, CCI and its counsel did not act inappropriately. It will be interesting to see how the companies, the Government and the Courts behave the next time a case involving similar circumstances occurs.

In the mean time, Messrs. Cosgrove and Edmonds are scheduled to be tried beginning on June 26, 2012.

In a Memorandum Order entered on May 1, 2012, Judge Jed Rakoff formally denied a motion to compel by Rajat Gupta and Raj Rajaratnam, who were seeking an order that the SEC produce documents concerning settlement negotiations between the Commission and cooperating witnesses. In an April 11, 2012 telephone conference, Judge Rakoff tentatively ruled in the Commission’s favor, but allowed the parties to submit letter briefs on the issue. In the Memorandum Order, Judge Rakoff confirmed his tentative ruling, rejecting the defendants’ argument that the information from the negotiations could be used to prove bias, stating that “[t]he best evidence of bias in a cooperator’s testimony comes from the actual agreement he struck with the SEC, not from his lawyer’s attempt to get him a good deal.”

In the past fourteen months, the litigation between Mr. Gupta, the former Managing Director of McKinsey & Company and board member at Goldman Sachs and Procter & Gamble, and the Commission has been remarkably active. From the outset, when the SEC brought an Administrative Proceeding against him alleging that he engaged in an insider trading scheme by providing nonpublic material information to Mr. Rajaratnam of Galleon Management, Mr. Gupta has argued that he should be able to take discovery to defend himself in Court. Mr. Gupta and the SEC agreed to the dismissal of the Administrative Proceeding and a related case in August, 2011 (as discussed here). By October 2011, both the SEC and the U.S. Attorney’s Office for the Southern District of New York filed charges against Mr. Gupta (with the Commission also naming Mr. Rajaratnam, as well) (described here).

As they had planned, the attorneys for Mr. Gupta have raised discovery issues. During the factual investigation that preceded the two cases, Assistant U.S. Attorneys from the Southern District of New York and an attorney from the SEC conducted joint interviews of 44 witnesses. Mr. Gupta’s attorneys filed motions in both the civil and criminal cases to seek materials regarding those interviews. On March 26, 2012, Judge Rakoff issued an Opinion and Order in the two cases (discussed here), granting in part a Motion to Compel and ordering the SEC to turn over to the U.S. Attorney’s Office materials relating to the 44 witnesses and ordered the prosecutors to review those memoranda and promptly turn over to the defense any material under Brady v. Maryland, 373 U.S. 83 (1963) (material exculpatory evidence to the defense – including evidence that could allow the defense to impeach the credibility of a prosecution witness).  With respect to the motion in the civil case, Judge Rakoff found that Mr. Gupta could not meet the burden of showing a “substantial need” for the SEC documents sufficient to overcome the attorney work product doctrine (except for the Brady material in the SEC’s notes and memoranda).

In the most recent discovery dispute, Messrs. Gupta and Rajaratnam requested the Commission to produce documents concerning settlement negotiations between the SEC and cooperating witnesses, including tax returns or other financial statements provided by the cooperators to the SEC during negotiations. They argued that the documents were relevant to probing the bias of the cooperators expected to testify against them. The SEC objected, pointing out that the final settlement agreements themselves would satisfy defendants’ interest in materials relating to bias.

Judge Rakoff held that Messrs. Gupta and Rajaratnam failed to demonstrate “that the settlement negotiations are relevant to proving bias.” Instead, the Court held, “what is relevant are the actual cooperation agreements themselves. The otherwise protected negotiations that led to the agreements have very limited, if any, additional probative value.” Judge Rakoff that the SEC did not have any Wells submissions or statements from the cooperating witnesses. In any event, the Judge noted:

Attorneys stake out adversarial positions in negotiations and engage in “puffing and posturing” in their attempt to obtain the best deal.  But these posturings have only indirect and attenuated relevance, at best, to anything bearing on proof of their clients’ bias.   

Judge Rakoff also rejected defendants’ request for financial information from the cooperators, because he did not see how it was relevant to bias.  “the cource of any bias in a cooperator’s testimony would be the ‘break’ the cooperator received from the the SEC in exchange for the cooperator’s testimony, something that is readily apparent from comparing the complaint to the final agreement.” 

On Monday, April 30, 2012, two of the remaining defendants in the Carson FCPA case submitted Reply Briefs in support of motions that raise significant issues about the impact on the employees when a corporation conducts an internal investigation and ultimately cooperates with the Government. The briefs argued that: (1) certain statements should be suppressed because the Government offered no evidence from the participants in discussions between the corporation’s counsel and DOJ prior to interviews of employees during an internal investigation (thereby failing to rebut defendants’ arguments that their Fifth Amendment rights were violated); and (2) the Government’s tactics during discovery violated defendants’ rights by denying them the opportunity to present a complete defense. The arguments on these issues are set to be heard on May 14, 2012.

On July 31, 2009, DOJ announced that Control Components, Inc. (“CCI”), a California company that designs and manufactures valves, had pled guilty to a three-count criminal information for its involvement “in a decade-long scheme to secure contracts in approximately 36 countries by paying bribes to officials and employees of various foreign state-owned companies as well as foreign and domestic private companies.” That plea marked the culmination of an internal investigation by CCI and the company’s cooperation with DOJ. The cooperation led to other CCI executives being indicted even before CCI pled guilty. For example, on April 8, 2009, prosecutors indicted six former executives of CCI, alleging that the group conspired to pay bribes to officials of foreign state-owned companies in order to secure contracts which yielded approximately $46.5 million in profits.

As discussed here, on March 5, 2012, the defendants in that case filed a Motion to Dismiss and a Motion to Suppress regarding DOJ’s relationship with CCI. In the Motion to Suppress, defendants argued that because CCI had collaborated with DOJ during the investigation, CCI and its counsel “were de facto public actors” and acted as “an agent of the government during the interviews.” Defendants further argued that “CCI compelled the Defendants’ statements under a classic ‘penalty situation’ – CCI required them to answer all questions regardless of their Fifth Amendment right against self-incrimination or be fired.” This conduct, defendants claimed, “violated their Fifth Amendment rights and the statements must be suppressed.”

In the Motion to Dismiss, the defendants argued that they had been prejudiced by the Government’s investigative tactics (including its relationship with CCI, who, according to defendants, “worked hand-in-hand with DOJ to investigate the matters at issue in this case), including: (1) tactics precluding defendants access to millions of pages of normally-discoverable evidence; (2) the lack of a meaningful review under Brady (including the fact that CCI would not turn over material to DOJ); (3) CCI’s loss of crucial documents underlying many of the counts and transactions; and (4) CCI’s instructions to its employees not to speak with the defense. The defendants argued that that combination of tactics “deprived [them] of their Due Process and Sixth Amendment rights, including the right to present a complete defense.” According to the motion, the “only appropriate remedy” for such severe prejudice is dismissal.

As discussed here, the Government filed its Opposition to the Motion to Suppress on April 2, 2012, arguing the statements should not be suppressed because the employer’s “actions were not the result of any pressure or influence from the government sufficient to convert the Company’s lawyers to state actors,” and because defendants could not “show that their statements were involuntary.” On April 6, 2012, the Government filed its Opposition to the Motion to Dismiss, arguing that the motion to dismiss was meritless because, among other things, the Government “has gone beyond its discovery obligations in ensuring that defendants receive Brady/Giglio material in the possession of CCI.”

In an interesting development on April 16, 2012, two of the four defendants who had filed the Motion to Dismiss and the Motion to Suppress – Stuart and Hong (“Rose”) Carson – pled guilty to one count of violating the FCPA. However, the remaining movants, Paul Cosgrove and David Edmonds, continue to pursue the motions.

In filing the Reply Brief in support of the Motion to Suppress, Messrs. Cosgrove and Edmonds highlighted the fact that the Government had not offered any evidence from any witness who participated in the discussions between CCI (or their counsel) and DOJ during the key time frame. As a result, defendants argue, it is uncontroverted that CCI’s counsel was a state actor when its attorneys interviewed defendants, those defendants had a reasonable fear that that they could lose their jobs if they did not answer, and that counsel did not warn them of their rights under the Fifth Amendment. As a result, the statements should be suppressed, according to defendants.

In their Reply Brief regarding the Motion to Dismiss, defendants argue that the “real issue” is whether the Government’s tactics, whether undertaken in good faith or bad faith, deny defendants the opportunity to present a complete defense. The defendants also point to the Government’s Brady obligations, asserting that the government significantly reduced the requests defendants made for Brady items when it (the Government) forwarded those requests to CCI, essentially exercising “unfettered discretion to unilaterally redact requests and deprive Defendants of a comprehensive Brady review.”

Both motions are scheduled to be heard on May 14, 2012 and have the potential to provide insight and guidance regarding the interaction between counsel for the corporation and the employees in future investigations.

The case is presently scheduled to go to trial on June 5, 2012.

On this edition of Ringler Radio, host Larry Cohen welcomes coahost and Ringler colleague, Jim Brady and guest, Attorney Virginia L. Price, shareholder with Klinedinst PC, to explore the many different areas of transportation law. Virginia talks about the kinds of cases that fall under transportation law including casualty litigation, cargo and employment law, 24-hour rapid response protocol and getting involved before lawsuits are filed.

Is the civil jury trial an endangered species? On this special edition of the Boston Bar, hosts Attorney Jim Brady from Brady & Monac and Attorney Paul F. Kenney from Kenney & Conley welcome Chief Justice William G. Young, United States District Judge for the District of Massachusetts and Attorney Holly M. Polglase from Campbell, Campbell Edwards & Conroy, to discuss the vanishing civil jury trial against the backdrop of the constitutional right to a trial by jury.

To E. Brady Robinson, you are just your Rolodex.

And your coffee mug. Your tape dispenser. Your page-a-day calendar.

In January, while waiting to photograph head shots for an annual report by the CuDC, a local arts nonprofit, Robinson noticed a private workspace in a back room at Flashpoint Gallery.Read full article >>

Sherwood Schwartz, who created and produced two of the most enduringly popular series on television, aGilliganas Islanda and aThe Brady Bunch,a died today at 94.

aGilliganas Island,a about the trials and tribulations of seven shipwrecked castaways, aired on CBS for just three seasons, from 1964 to 1967, and was never a favorite of critics. But fans adored its gags and corny jokes, and the show has enjoyed a sort of immortality in reruns and parodies. Read full article >>

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