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The U.S. Supreme Court’s decision in U.S. v. Arthur Andersen was many things to many people. To some it was hollow vindication. To others, the decision could never erase the truth-that the once proud accounting firm was far too willing to look the other way in exchange for the almighty buck. People’s take on how Andersen will affect white-collar prosecutions and the use of document-retention policies going forward was no different. Everyone seemed to have a different opinion. For example, the day after Andersen, the Wall Street Journal announced that the decision could significantly impair the government’s broader push against white-collar crime and its enforcement of the 2002 Sarbanes-Oxley Act corporate reform law. In Houston, Dan Hedges, a former U.S. attorney, said the case “really doesn’t stand for much beyond the fact that you need to be more careful with jury instructions.” Regarding the all-important document-retention policy issue at play in the case, the U.S. Chamber of Commerce wasted no time in confirming that a collective sigh of relief could be heard from corporate counsel across the country. Of course, many other legal experts were not so optimistic and advised caution going forward. So what impact will the decision have? While the decision was certainly a symbolic setback for the Justice Department’s corporate fraud efforts, it will not pose any practical impediment in prosecuting corporate fraud, white-collar crime or violations of Sarbanes-Oxley. On the other hand, the court seemingly carved out a safe harbor for document-retention policies utilized under “ordinary circumstances.” Three words were the focus The Andersen decision is surprisingly short. In fact, except for two brash sentences addressing document-retention policies, it revolves around the court’s interpretation of three words from the witness tampering statute found at 18 U.S.C. 1512-the words “knowingly,” “corruptly” and “persuades.” The court said it was “striking” how little criminal intent was required by the Andersen trial judge’s jury instructions and construed the word “knowingly” to modify the words “corruptly persuades” such that “only persons conscious of wrongdoing [could] be said to ‘knowingly . . . corruptly persuad[e].’ ” Because the Andersen instructions failed to convey this level of intent and even diluted the meaning of “corruptly” so as to encompass innocent conduct, it reversed the conviction. Because the decision was so narrow, no major legal ground was broken in the area of criminal intent or in the interpretation of the corporate reform laws enacted under Sarbanes-Oxley. The decision certainly did not speak to 18 U.S.C. 1519, the document-destruction law that Congress passed under that act in July 2002 to plug the holes it witnessed during the government’s prosecution of the accounting giant the month before. Noticeably absent from Section 1519 is any sort of “corrupt” intent requirement. One need only intend to impede, obstruct or influence to satisfy the statute’s reduced-intent requirement. It also does not require that the obstructive conduct be closely tied to a pending judicial proceeding. It is sufficient that the conduct be done in “contemplation of” a federal matter or investigation. Because Sarbanes-Oxley gave prosecutors an obstruction statute that was easier to use, prosecutors have long since put Section 1512 in mothballs in favor of the new, improved version, Section 1519. For that reason, coupled with the fact that the Andersen court did nothing to hinder the government’s use of Section 1519, the decision won’t impede efforts to prosecute criminal violations of Sarbanes-Oxley. Turning to Andersen‘s impact on document-retention policies, corporate counsel might well be justified in breathing a sigh of relief. They were concerned that merely enacting document-retention policies, regardless of whether a governmental proceeding was looming, might subject them or their companies to criminal liability. While many parties conveyed this concern to the court during briefing and argument, the National Association of Criminal Defense Lawyers, in its amicus brief, said it best: “If a lawyer . . . can be guilty of subverting, undermining, or impeding the fact-finding function of an investigation simply by conveying routine legal advice about an accepted document retention policy . . . then it is difficult to discern the outer boundaries of potential liability.” This concern seemingly resonated with the court. In what appears to be a concerted effort to put the matter to rest before diving into the merits of the case, the court stated: “It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Notwithstanding the use of “ordinary circumstances” as qualifying language, this statement is surprisingly strong and seemingly carves out a safe harbor for all document-retention policies put in place before governmental action becomes foreseeable. Of course, it does not endorse sham document-retention policies or policies that are merely dusted off when it becomes “convenient” to enforce their application. Looking back, Andersen was undoubtedly a big case-but only because of the symbolism manifest in striking down the poster child of all corporate fraud cases. And while the government will certainly be more circumspect in those rare investigations involving corporate document-retention policies, rest assured the decision will have little practical impact on its white-collar efforts going forward. Bill Mateja, a principal in the Dallas and Washington offices of Fish & Richardson, recently left the U.S. Department of Justice after serving as senior counsel to deputy attorneys general Larry Thompson and James Comey, where he served as point person for the President’s Corporate Fraud Task Force.

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