On June 5, 2017, Attorney General Jeff Sessions (“Sessions Memo”) issued his memorandum that stated that the USDOJ will no longer agree to settlements that include “payments” by a defendant to a third party organization. On July 28, 2017, he issued another memorandum, directing a compilation of a list of all civil or criminal settlement agreements that include payments to third parties.
While this certainly suggests that the USDOJ will be less inclined to include third party payments or SEPs in settlements, I would suggest that the practice should not be abandoned.
I previously posted about this on June 12, 2017. Certain “news” outlets have depicted these types of payments as “slush funds” for left wing groups. As a friend of mine (Jim Smith) noted in a Linked-in post: “An article posted by the Competitive Enterprise Institute (“CEI”) in its Energy and Environment section specifically mentions settlements in environmental cases, describing them as a ‘Billion Dollar Green Energy Rip-Off.’ The CEI article identifies 18 settlements that required companies to pay ‘$1.55 billion in private sector funding on renewable energy, energy efficiency, and electric vehicles.’” Without having seen the settlements described, it is hard to imagine that it is truly a billion dollar rip-off.
One settlement I was involved in required a payment to the Southern Environmental Enforcement Network for its training fund. It also included a payment to the municipality in which the business operated for its fire and rescue unit with a directive that the payment “shall be for the exclusive use of [municipality] exclusively for the acquisition, purchase, lease, contracting for, maintenance, calibration, testing, transport, staging, or storage of specialized equipment and gear. . . . None of the funds should be used for any vehicle, firearm, gasoline, diesel fuel, or to pay for the salary, benefits, or overtime of a City of Hutchins employee.”
It is hard to imagine that these types of payments are “slush funds” for left wing groups. Let us hope that cooler heads prevail and that the Attorney General takes a broader view of third-party payments in settlements.
As always, feel free to contact me at firstname.lastname@example.org