A Case that ‘Should Never Have Been Prosecuted’

One of last month’s notable legal stories drew surprisingly little attention in the general press. In Maryland, U.S. District Court Judge Roger Titus ordered the acquittal of Lauren Stevens, a former in-house lawyer for drugmaker GlaxoSmithKline, who had been charged with obstructing a federal investigation. In strong language, Judge Titus said Stevens “should never have been prosecuted” and that allowing the case to go forward to a jury “would be a miscarriage of justice.” [White Collar Crime Prof, Main Justice, FDA Law Blog (“stunning… Black Tuesday for the government”)].

The prosecution was part of a wider trend in which the federal government has been more aggressively asserting civil and even criminal claims against lawyers and company employees who resist government charges and investigations. The danger, of course, is that with their own careers, fortunes, and liberty on the line, defense and organizational lawyers and employees will be scared out of taking even legitimate positions the feds may find displeasing.

The Stevens case arose after the Food and Drug Administration investigated GSK’s marketing of the drug Wellbutrin. Lawyers, responding on behalf of the drugmaker, failed to furnish all the information the FDA considered itself entitled to, and federal prosecutors from the U.S. Department of Justice proceeded to “forage through confidential files” (as the judge later put it) in search of some sort of criminality to pin on Stevens, the team’s leader.

In her defense, Stevens said she had at all times relied in good faith on information provided her by company employees and had consulted and followed other lawyers’ advice on doubtful issues. Not good enough: the feds proceeded to charge her with six counts, including making false statements, obstructing justice, and concealing documents.

The flimsiness of the DOJ’s case appears to have disturbed Judge Titus, a law-and-order-oriented jurist who had never ordered a bench acquittal in his seven years as a federal judge. The confidential documents on Stevens’s work, he wrote, “show a studied, thoughtful analysis of an extremely broad request” from the FDA and were based on “good faith,” not an attempt to assist a client in fraud.

After the stunning dismissal, the U.S. Department of Justice was quite unapologetic, a top official suggesting that its prosecutors intended to do nothing differently in future. And unfortunately, there are few incentives for them to learn any lessons.

Especially when it comes to defendants like Fortune 500 in-house counsel, the pressure and the risks of facing off against the federal government are so great that many or most will take a plea bargain, deferred-prosecution agreement, or some other kind of deal rather than resist the onslaught, even if they believe themselves to have done nothing wrong. Lauren Stevens and her colleagues stood up and fought back — for which they deserve our respect and even our gratitude.