Franklin, Andrews, Kramer & Edelstein

[jurisper]

For some reason I'm still chuckling over this.

In more detail the argument goes like so:

The Supreme Court has held in several cases that particular federal statutory disclosure requirements put the respondent at "substantial hazzard of self-incrimination" and therefore violated the Fifth.

The SC history apparently draws a distinction between broad requirements directed at the public at large - eg the requirement to file tax returns - and those targeting a narrow group of people quite likely to be guilty of something or other.

The attorney cites eg to a SC decision in Albertson v. SACB (1965):

In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the… questions in context might involve the petitioners in the admission of a crucial element of a crime.

Now comes the creative leap. Since Enron, SarbOx etc etc,

The harsh criminal penalties contained in § 1350 and other Sarbanes-Oxley provisions have caused modern day CEOs and CFOs to be much more like criminal suspects than like average taxpayers.

In other words, CEOs & CFOs are a narrowly defined class of low-lifes likley to be guilty of fraud. Requiring them to certify an SEC filing is unconstitutional, because it requires them to choose between lying or incriminating themselves, in violation of the Fifth.

The conclusion is then clear:

As a result, the hazards of incrimination created by the mandatory reporting requirements of § 1350 cannot withstand Fifth Amendment scrutiny.... Section 1350 should be struck down

The attorney is Barry S. Polllack of mid-tier firm Sullivan & Worcester, where he leads the white collar defense group: http://www.sandw.com/professionals-201.html

Presumably this is the kind of thing you do when you have a client who is as guilty as sin but refuses to cut a deal - pull out all stops and get anything at all which might form the basis for an appeal into the record.

I guess he's earning his fee - he's filed several dozen motions in the case so far, some of which look pretty telling against a government case which in part looks cobbled together to avoid statute of limitation issues arising from the feds' 6+ years of mooching around before bringing charges.

Contrast with Matt Brown's choice of attorneys ...