Kevin J. Napper is a shareholder in Carlton Fields' Tampa, Fla., office. He has practiced in the areas of white collar criminal defense, governmental investigations, internal investigations, and complex civil trial law for more than 28 years. He represents public companies and executives in Foreign Corrupt Practices Act investigations involving allegations of kickbacks and bribery to government officials in developing countries and has conducted internal investigations for public and private companies involving allegations of financial mismanagement, theft, fraud, and other violations of criminal law. He has also represented executives of public and private companies in grand jury investigations conducted by the U.S. Department of Justice.
Q: What is the most challenging case you have worked on and what made it challenging?
A: I represented the controller of a public company who was one of 10 executives of the company who were indicted for what was essentially alleged as a scheme to cook the books to meet Wall Street expectations. The entire E-suite was indicted, including the CEO, chief operating officer, chief financial officer, general counsel, etc. The government’s two cooperators were also executives in the company, including the assistant corporate controller, who reported to my client.
There were many challenges in the case, both legal and personality, but perhaps the most challenging was keeping 10 individuals with different agendas, egos and legal exposure, and their legal teams — and their different personalities, egos and agendas — all moving forward towards a common goal: acquittal or other successful resolution of the case.
After eight years, the matter was successfully resolved as to all of the 10 indicted individuals. This was a complex but highly successful example of different law firms, lawyers, and clients working together under extreme stress and sometimes difficult circumstances to successfully resolve a very difficult legal matter.
Q: What aspects of your practice area are in need of reform and why?
A: The United States Department of Justice’s obligations to provide exculpatory and/or other discovery information under Brady, Giglio and Jenks is in need of serious reform. The rights of the accused are paramount and prosecutors wield an enormous amount of power. They have a fundamental obligation to provide the accused with all of the discovery in a criminal case, not just the discovery that helps the prosecution if the criminal justice system is going to function in a fundamentally fair and efficient manner.
Q: What is an important issue or case relevant to your practice area and why?
A: The Foreign Corrupt Practices Act is a burgeoning area of practice. The DOJ and the U.S. Securities and Exchange Commission have made it an enforcement priority to investigate and prosecute these cases in an effort to “level the playing field” for businesses who do business in an ethical and lawful manner. Investigations and prosecutions under the FCPA have increased substantially in recent years as a result. This keeps white collar crime attorneys, like myself, busy advising clients on these issues, and business executives ever mindful of the perils and potential pitfalls of doing business abroad.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: There are many. Hank Asbill at Jones Day in Washington, D.C., is a consummate lawyer. He is a gifted tactician, writer, and exceptionally talented trial lawyer who represents his clients zealously, ethically and very successfully.
Q: What is a mistake you made early in your career and what did you learn from it?
A: I assumed that if the law and the facts were on your side you would almost automatically win. I quickly learned that at trial anything can happen and you must be better prepared than your opponent and never, ever take anything for granted (and never, ever, ask a question of a witness on cross-examination that you don’t know the answer).