MoloLamken is a rarity in the corporate crime and investigations field.
The big corporate law firms cut the paper deals with the Department of Justice – the deferred and non prosecution agreements.
Steven Molo
MoloLamken prides itself on its courtroom presence.
“Our lawyers are courtroom advocates, not merely paper litigators,” the firm says on its website.
And unlike the big firms, MoloLamken is not shy about representing both defendants and plaintiffs. It’s a formula that has worked well. Next month, the firm will celebrate its eighth birthday.
“The firm does three things,” Molo told Corporate Crime Reporter in an interview last week. “Business litigation broadly defined on the plaintiff and defense side. We do intellectual property litigation. And we do white collar criminal defense and investigations. We do that in the trial courts all the way to the Supreme Court of the United States.”
How does it break down – civil versus criminal?
“The civil criminal split depends on the points in time we are talking about. One month it may be that 40 percent of our work is criminal. Another month it might be ten or fifteen percent is criminal. On average, probably 25 percent to 30 percent of our work is criminal.”
On internal investigations, it could be everything. It could be anything.
“Yes. Even the whistleblower cases we do have a bit of a criminal element to them. Same with securities fraud cases. Often the issues overlap between criminal and civil.”
Do you find that the practice of MoloLamken is unusual in the white collar space?
“Yes. More often than not, people tend to do just the criminal work. Less often it is the kind of work that we do.”
“For example, we have a number of whistleblower cases where we have reported conduct to the SEC. We had a very significant victory on behalf of a whistleblower in the Warner Chilcott case where the penalty imposed was well over $100 million. Those are the kinds of cases that people in the field who do criminal defense work won’t be handling.”
What about your own personal practice?
“I am an advocate. I just tried a case last week in the Delaware Bankruptcy Court. My practice more or less mirrors the practice of the firm. I will usually argue a couple of appeals a year. I will try one or two cases a year. Between the criminal and civil, it depends on what I have going on at the moment. If I have a criminal case going to trial and it’s taking a big percentage of my time, that particular year my percentages will skew toward criminal. If it happens to be a civil case, it will skew toward civil.”
You are a trial lawyer. You like to be at trial in court.
“Absolutely.”
Is that the same for the firm – your own personal outlook reflects the philosophy of the firm?
“Without a doubt. Jeff Lamken is a great appellate lawyer. He loves being in court and arguing appeals. Throughout the firm, being in court is something that is a hallmark of the firm. The case that I tried in Delaware Bankruptcy Court, Skadden was on the other side. I tried it with a senior associate and two junior associates. Going to court and being advocates for people is something we do very well.”
Are you representing individuals in big corporate settlements?
“We do represent executives all the time. This is public and it has been reported. I’m currently representing the former CEO of Volkswagen in the United States investigations.”
Are you noticing an uptick or downtick in business since Trump came into office?
“We haven’t noticed any downtick. I can’t say whether everyone at the bar feels that way. We certainly haven’t noticed a downtick.”
Give us some public examples of cases you have been involved with recently.
“Notably the Sheldon Silver case. I tried the case, we lost at trial. But we recently obtained a reversal of the conviction at the Second Circuit following the Supreme Court’s decision in McDonnell. We are filing a cert petition this week because of the issue on the money laundering statute.”
“We have had other trials. We’ve had a health care fraud trial. We have had criminal cases. We have had large antitrust investigations.”
“In that particular antitrust case we were representing a Japanese executive. There have been a whole series of investigations by the US Department of Justice and the Japanese federal trade commission. We were involved in one of those cases representing a senior Japanese automobile industry official. There are a number of cases ongoing now involving Brazil.”
One situation we run across is with these large class action settlements. And often there are questions about the settlement. You represented a number of NFL players in concussion litigation.
“After the original class action settlement was announced, there were seven players who came and saw us. They said they had questions about the settlement and whether it was ultimately fair and consistent with what the legal requirements were.”
“We took a look at it and we thought the settlement could be improved and there were deficiencies in it. We represented seven objectors to the settlement. And we litigated the settlement. The court appointed us to be the lead counsel for the objectors. We took an active role in the fairness hearing. As a result of our efforts, the settlement was increased in value by about $120 million. That was a case where very fine lawyers had been involved on both sides. And they reached a settlement. But we thought that settlement could be enhanced. And fortunately, we were able to help get it enhanced.”
Do you do monitorships?
“We have not undertaken a monitorship yet. That is something we would certainly be open to doing. In addition to myself, Justin Shur is a phenomenal lawyer who joined us — maybe a year after we started the firm. He was the deputy chief at Public Integrity at Main Justice.”
“Jessica Ortiz was a senior supervisor at the US Attorney’s office for the Southern District. She was a great addition to the firm last year. And just this last month, Megan Church, who was the deputy chief of the financial crimes unit at the US Attorney in Chicago joined us as a partner. She prosecuted the former chief executive of the Chicago school system in a public corruption case. We have a tremendous team of talented people who were at senior levels at US Attorneys’ offices or at Main Justice. We would be well set up to take on a monitorship.”
There has been a lot of criticism of deferred and non prosecution agreements. In federal environmental crimes and antitrust crimes, they are discouraged. Why not go back to the traditional practice where you bring a charge if there is a crime or not?
“The use of deferred prosecution agreements reflects an understanding that the problem is extremely widespread and that the best way to deal with it is to enlist the assistance of companies. What the law is trying to do is to change the culture and make corruption not acceptable. We have seen a great number of companies coming forward once the problems surface. As a result of that, it makes the government’s job easier. I don’t see that changing.”
On the question of trial lawyer versus settlement attorney. Are some people born trial lawyers and other people are born to settle?
“There are people who are more skilled in the courtroom. And others more skilled in the process that leads up to that. Ultimately, we think our sweet spot is dealing with people with serious problems that are likely to end up in a courtroom. We have been fortunate that there are enough issues out there that require our talent. And we work hard to develop it. Right after they join us, our younger attorneys go off to the National Institute of Trial Advocacy. We give them every opportunity we can to get on their feet and be involved in a trial.”
“There are people who have a greater inclination one way or another. But you can also work to develop those skills to the extent they are lacking. But you have to get up there and do it. Otherwise, those skills atrophy.”