To disclose or not to disclose, that is the question.  Although self-disclosure will bring the matter to the Environmental Protection Agency’s attention, it is a great mechanism for reducing penalties for any enforcement action the EPA might bring.

The EPA’s audit policy was issued in 2000.  It offers penalty mitigation and other incentives for companies that discover, promptly disclose, and expeditiously correct environmental violations, as well as take steps to prevent future violations.

The EPA now uses an automated system, eDisclosure, for self-reporting violations.  In general, companies must report violations within 21 days of discovery and resolve them within 60 days, although extensions are readily given for returning to compliance to avoid penalties.

The EPA categorizes disclosures as Tier 1 or Tier 2.  Only Emergency Planning and Community Right-to-Know Act (EPCRA) violations are covered by Tier 1.  Under Tier 1, eligible disclosures will automatically receive an electronic Notice of Determination (eNOD) confirming that the violations are resolved with no assessment of civil penalties, conditioned on the accuracy and completeness of the submitter’s certified eDisclosure.

Continue Reading How to Get Out of EPA Hot Water Penalty Free

Henry Friendly still has my vote for the title of greatest American judge who ever served at any level. It’s the country’s misfortune that he never served on the U.S. Supreme Court. He did, however, spend nearly thirty years on the United States Court of Appeals for the Second Circuit, writing more than 1,000 opinions and carving out a reputation as one of the country’s most influential jurists. On March 10, 1986, thirty-two years ago today, Friendly died.

I’ve written at some length elsewhere about my definitely-not-unhealthy devotion to a long-deceased judge on an intermediate appellate court who, with a few exceptions, did not weigh in on the most hotly contested constitutional questions of the day. But Friendly’s reputation was built on his alarming analytical acuity, the lucidity of his writing, and his record of pragmatic decisions. He also had a great eye for talent: his law clerks included Chief Justice John Roberts, federal appellate judges Merrick Garland, A. Raymond Randolph, William Bryson, Pierre Leval, and Michael Boudin, and a slew of influential lawyers and academics including Bruce Ackerman, Larry Kramer, and Ruth Wedgewood.

For purposes of this blog, Friendly wrote several decisions addressing the scope of the attorney–client privilege and reviewing convictions for white collar crimes in an era when prosecutions for such crimes were relatively rare. Two of those decisions are discussed below and recounted in detail in David Dorsen’s excellent biography of Friendly.

Continue Reading This Day in White Collar History: Remembering Henry Friendly

  • A couple of local “co-schemers” were charged with credit card fraud — one allegedly favored QFC and Fred Meyer, the other was all about Bartell
  • A Florida man was indicted in federal court in Boston for pretending to be an SEC employee and then demanding money from victim
  • One of the two former aides to former Virgin Islands Delegate to Congress Stacey Plaskett who pleaded guilty to distributing explicit images and a video of Ms. Plaskett and her husband to stop her reelection was sentenced to a year in prison
  • The mayor of Allentown, Pennsylvania resigned a week after being convicted on corruption charges
  • The prime minister of Macedonia pleaded not guilty to taking a bribe when he was a local mayor in the southeast of the country five years ago
  • And two former attorneys for Suge Knight were indicted for attempting to bribe potential witnesses in their former client’s upcoming murder trial



I imagine that word—or else a prolonged stunned silence—was the response of many attorneys and non-attorneys alike when former Trump campaign aide Sam Nunberg announced in a series of bizarre interviews today that he planned to ignore a grand jury subpoena from the Special Counsel’s office. Nunberg then dared the government to arrest him for his refusal to cooperate.

As far as strategies go, Nunberg’s is all kinds of terrible. As others have described, you can be jailed for contempt for defying a grand jury subpoena, and subpoenaed witnesses in past investigations of presidents have faced such consequences.

Mr. Nunberg did raise an interesting point in an interview with CNN’s Jake Tapper, asking whether he should have to spend “80 hours” looking for every email he had sent to other campaign advisers since November 2015, complaining that he had exchanged many emails per day with some of those people. Grand jury subpoenas to produce documents can be a pain. Below are some tips to try to reduce costs.

Continue Reading “I’ve Made a Huge Mistake,” or: Don’t Ignore Grand Jury Subpoenas and Other (Less Obvious) Tips

Immigration SignForm I-9 Audits: Formally, an I-9 audit is called an Administrative Inspection.  It begins when ICE serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may only request I-9 forms and a list of current and past employees with their social security numbers. ICE may not request any personnel file that goes beyond this information. A Notice of inspection must be served at least three days before ICE conducts the audit. During this time, we recommend that the company make copies of all documentation it intends to provide to ICE and further recommend asking ICE if it will accept copies instead of original paperwork. The company is entitled to keep copies of the documents it provides in response to the Notice. Keep in mind that the Department of Labor may also request I-9 forms as part of their audit responsibilities.

ICE will give the company ten (10) days to correct any technical or procedural deficiencies in documentation. If the company fails to provide an I-9 for any employee or fails to correct a paperwork error, any violation subsequently found may be treated as a “substantive” violation, which can carry a fine of up to $1,100 per violation.  Further, if the company hires an unauthorized worker, or continues to employ a worker after discovering improper documentation, the company can be fined up to $16,000 per violation, and company executives and/or HR managers may be subject to criminal prosecution.  The investigation can last several months.  If ICE finds no violations, it will issue a “Notice of Inspection Results,” called a “compliance letter.”

Immigration “Raids”: ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out such a “raid,” ICE must apply for a judicial (as opposed to an administrative) search warrant or arrest warrant for certain individuals. ICE may obtain such a warrant based on evidence such as noncompliance during an I-9 audit, a “tip” regarding an improperly documented employee, or the offsite arrest of an employee who admits to working there without proper authorization. A judicial search warrant, which is issued by a court, permits ICE to search areas of a business not otherwise open to the public. Without a judicial search warrant, ICE may only enter areas of the business open to the public.

In order to carry out an effective response to such a raid, consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE.  The Lead will be responsible for notifying in-house or outside counsel, and facility personnel of the raid, and act as the company’s official point of contact for law enforcement throughout the raid.

Continue Reading Response Protocol for I-9 Audit and Immigration Raid

  • This month’s issue of the Federal Lawyer focuses on white collar crime, and includes this helpful article on subpoenas.
  • Deputy Attorney General Rod Rosenstein visited Seattle this week for a press conference stressing DOJ’s continued commitment to catching the killer of a federal prosecutor tragically murdered here in 2001. One month to the day after 9/11, Assistant U.S. Attorney Tom Wales was working at his computer at about 10:40 p.m. Someone familiar with his home and work habits evaded the motion-sensor-based floodlights in his yard and shot him through the window. Over almost 17 years of active investigation, the government has pursued a variety of theories. If the murder was related to his work, Mr. Wales would be the first federal prosecutor killed in the line of duty in American history.
  • A new podcast investigating the murder, Somebody Somewhere, launched on January 30th.
  • If you’re thinking about the Supreme Court’s decision to leave in place a D.C. Circuit decision about standing in data breach cases, there’s a nice discussion of it on this week’s episode of the National Security Podcast.
  • Just a week after Valentine’s Day, the U.S. Attorney’s Office in Portland indicted a dating site fraudster for stealing, and then laundering, money from would-be dates with the help of some catfish co-conspirators.