Affi rmative Defenses: Denying Liability and Defl ecting Blame

• Author: Miriam Weismann
• Pages: 65-71

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AFFIRMATIVE DEFENSES

DENYING LIABILITY AND

DEFLECTING BLAME

I. The Good Faith Defense

The good faith defense ar ises in two ways at tria l: to negate the mens rea require -

ment or to asser t good f aith re lianc e on the a dvice o f an outs ide profes sional to negate

crimina l liability. Both are double-edged swords because t he claim of good faith ty pi-

cally results i n the automatic waiver of attorney-client privilege.

A. Negating the Mens Rea

In United States v. Exxon Corp.,  F.R.D.  (D.D.C. ), Exxon raised, a s one

of its defenses, the aff irmative defense of good faith reliance on government regula-

tions and communications wit h the Department of Energy to avoid liability for price

overcharges on the sale of crude oil. T he government argued that t he defense put

the “corporate state of mind at issue.” The court found that E xxon had waived its

attorney-client privilege and t hat its corporate files had to b e released because they

were “highly releva nt” to the merits of its good fait h compliance with government

regulations. Ex xon’s internal statements “should also revea l whether Exxon honestly

believed that it acted in good fa ith.”

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