White Collar Roundup - September 2014

A Tolling Provision Is Only Worth the Language That's Written

Despite the government's hopes, the statute-of-limitations tolling provision of its cooperation agreements is strictly construed, according to the U.S. Court of Appeals for the Second Circuit in United States v. Mergen. In that case, Volkan Mergen had entered into a cooperation agreement with the government and pleaded guilty. The agreement contained a statute-of-limitations waiver, which said Mergen could be prosecuted for any offense not time barred by the applicable statute of limitations as of the date of the agreement if the government learned of the offense from Mergen. Later, the government claimed Mergen breached the cooperation agreement, and Mergen withdrew his guilty plea. The government then charged Mergen with additional crimes that were beyond the limitations period. The government contended the crimes were covered by the waiver in the agreement. But Mergen claimed he never told the