In the aftermath of the Second Circuit’s July 2017 decision in United States v. Allen, companies operating cross-border should be asking how far the Fifth Amendment’s protections against self-incrimination reach. Apparently, the answer is across the Atlantic Ocean and beyond. In Allen, the Second Circuit overturned an indictment and conviction based on testimony compelled by a foreign regulator pursuant to foreign law because the use of the testimony in a U.S. court violated the defendants’ Fifth Amendment rights. This article will examine the Allen decision and offer guidance to U.S. and foreign companies as they navigate (and seek to avoid) criminal indictment and sanctions in the United States while complying with foreign regulators.
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