Note: this blog post is the sixth in a multi-part series on “the law and ethics of Chegg.”
I will be posting my Criminal Complaint against Chegg, Inc. and Chegg CEO Dan Rosensweig in the next day or two, but in the meantime, I want to address two important preliminary matters. One is geographical: which court should hear this case (the forum-shopping question)? The other is procedural: whether to proceed by “indictment” or by “information” (see, for example, the flow chart pictured below).
Since my case against Chegg will be based on federal charges (wire fraud and conspiracy to commit wire fraud–hence the new title of my project: “The Chegg Conspiracy”), let’s talk about how a federal criminal case gets started. In summary, each State contains one or more federal judicial districts, and each district has its own U.S. Attorney’s Office. Chegg’s headquarters, for example, are located in Santa Clara, California, which is part of the Northern District of California (NDC), so the current U.S. Attorney for the NDC, Stephanie Hinds, could be the one to bring charges against Chegg.
But should the Chegg case proceed by indictment or by information? Both are charging documents, and according to Rule 7(c)(1) of the Federal Rules of Criminal Procedure (see here), both must contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government.”
All felony prosecutions, however, are supposed to begin with an indictment, since the Fifth Amendment to the Constitution states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury …,” except for cases under military law (e.g. a court-martial), but Rule 7(b) of the Federal Rules of Criminal Procedure allows a criminal defendant to waive this right, so for all practical purposes the main difference between indictments and informations is that an indictment must be presented to a grand jury for its approval. (Every federal judicial district has its own separate grand jury, and the proceedings of the grand jury are governed by Rule 6 of the Federal Rules of Criminal Procedure. See here.)
An information, by contrast, does not involve the grand jury. Instead, the information is presented to an Article III judge or to a magistrate judge. In either case, however, the grand jury or the judge must decide whether the charges contained in the charging document are supported by probable cause. So, for all practical purposes, it doesn’t really matter too much whether this case is initiated via indictment or information.
For my part, I will label my proposed charging document against Chegg a “Criminal Complaint” for now and let the actual U.S. Attorney for the Northern District of California decide how to proceed. The main thing is that Chegg be prosecuted forthwith. In fact, because Chegg is an online service, it does business across the United States, so any U.S. Attorney in any federal judicial district could bring charges against Chegg.
With this background in mind, I will post my model Criminal Complaint in the next day or two …