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Case Against Company Counsel Dismissed

As reported today by Sue Reisinger at law.com and Ellen Podgor on the White Collar Crime Prof Blog, the case against GlaxoSmithKline’s former VP and associate general counsel has been dismissed without prejudice.

Lauren Stevens was indicted for obstruction and giving false answers to an FDA inquiry. She produced extensive evidence showing she acted on the advice of counsel and without any intent to violate the law. The government, according to Podgor, argued that 18 USC 1519 (false statements) is a general intent crime and that a “good faith reliance on advice of counsel is only a defense to specific intent crimes.”

The judge ruled that Stevens was entitled to use the defense of advice of counsel, and that the DOJ’s explanation of that defense to the grand jury wasn’t accurate.

In her commentary, Podgor said: “Should you really prosecute someone who may not have had the specific intent to do these alleged acts? Will this achieve the deterrence from criminality that we desire? Irrespective of whether one accepts the government’s claim that advice of counsel is an affirmative defense or the defense and court position that it negates the mens rea, is prosecution of this alleged conduct the way we want to spend valuable tax dollars?”

A better use of resources, Podgor concluded, is to train lawyers how to respond to government inquiries.

In Stevens’ case, according to Reisinger, the judge said prosecutors could seek another indictment from a different grand jury. So she may yet be put on trial.

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