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When Is An Internal Investigation Not Privileged? - 04.16.2014
Compliance programs have grown in importance along with the demands of new laws and regulations. These programs are increasingly seen as vital to preventing corporate misconduct or, at least, mitigating sanctions if misconduct is found.
At the same time, company management needs to think through the scope of work assigned to compliance personnel, especially when questionable conduct is detected. Under these circumstances, an important question should be addressed: who should look into the misconduct – compliance staff or in-house or external legal counsel? [...]
A Lawyer's Privacy Interest – Real or Illusory? - 04.15.2014
New York attorneys have long relied on the New York Court of Appeals decision in Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP to protect a category of documents within their files as to which the attorney, rather than the client, has a privacy interest and to which the client does not have a right of access. This article discusses Judge Gardephe’s recent decision in Gruss v. Zwirn highlighting the narrow scope of this privacy interest.
It has become popular among prosecutors and regulators in recent years to claim that officials who engaged in wrongdoing on the job should be forced to surrender every dollar earned on that job. The U.S. Attorney for the Southern District of New York has issued a policy statement that his office will use federal forfeiture laws to seek to strip the pensions of state officials convicted on federal corruption charges. Such policy mirrors the position often taken by SEC enforcement lawyers in seeking to disgorge all of the salary and bonuses earned by corporate officials found to have engaged in misdeeds. The problem with these claims, both as a matter of law and as a matter of fairness, is that they most often fail the basic test of causation. [...]
Conscious Avoidance: An Over-Used Doctrine - 04.01.2014
This article, “Conscious Avoidance: An Over-Used Doctrine,” discusses the problems engendered by court interpretations of the evidentiary foundation required for a conscious avoidance jury instruction in criminal cases.
Barbara Moses in NYLJ on Pro Bono Disclosure - 03.24.2014
A recent New York Law Journal article, “Mandatory Pro Bono Weighed as Disclosure Rule is Criticized,” quoted Morvillo Abramowitz counsel and NYCLA President Barbara Moses regarding continuing talks over mandatory pro bono actions and reporting from New York attorneys.
Congress Weighs In On Offshore Enforcement - 03.24.2014
A recent report by the U.S. Senate Permanent Subcommittee on Investigations (PSI) criticized both the Department of Justice and the Internal Revenue Service for their purported "lax enforcement" of the use of offshore bank accounts to evade U.S. tax laws. The report and subsequent hearings, however, ignore significant progress in the pursuit of offshore tax evasion through both the IRS's Offshore Voluntary Disclosure Programs and the DOJ's Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks. This article discusses how Congress could contribute to the appropriate enforcement of the tax laws by fully funding both the DOJ and the IRS.
Even for those who carefully follow legal developments in the health care fraud arena, the Department of Health and Human Service’s Office of Research Integrity (“ORI”) is an agency that rarely appears on the radar. According to its website, ORI “oversees and directs Public Health Service (PHS) research integrity activities,” including the integrity of research projects funded by agencies such as the National Institutes of Health (“NIH”) and the Centers for Disease Control and Prevention. ORI’s primary functions include such tasks as “monitoring” investigations that research institutions conduct when there are allegations of data falsification, and proposing administrative actions against medical researchers found to have fabricated the results of their studies. [...]
The proliferation of social media over the past decade has drastically changed how people communicate. Without much thought, people publicly post detailed personal information and photographs documenting their whereabouts and moment-to-moment activities. In the litigation context, the increase in use of social media has created enormous amounts of discovery material. Most attorneys are well aware that the personal items and pictures posted on people’s social pages are ripe areas to learn about an opposing party, opposing counsel, potential witnesses, jurors and judges. Law enforcement agencies too -- like the NYPD, which created a social media unit in 2011 -- are mining social media for information concerning past and prospective criminal activity. Most laws and rules governing how attorneys may advise their clients concerning the handling of their personal information were developed in the pre-Facebook age. But, the differences between social media and other forms of discoverable material have altered the legality of attorneys’ actions both substantively and ethically in ways that many attorneys would not expect and in ways that conflict with their experience and instincts. One problematic – and largely unanswered – question is what advice an attorney can legally and ethically give to a client who has posted potentially incriminating or discoverable material on a social media website. [...]
The Supreme Court’s February 25 decision in Kaley v. United States creates a significant hurdle for white-collar defendants seeking to retain qualified counsel to defend against the government’s allegations. Ruling that defendants cannot, prior to trial, challenge a grand jury’s probable cause determination that allows the government to bar a defendant’s access to assets linked to the alleged crime, the Court’s decision, according to the dissent, allows the government “to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice – without even an opportunity to be heard.” In cases such as Kaley, where the government convinced the grand jury to charge on a novel or untested theory, the result poses a particularly difficult challenge for a white-collar defendant. [...]
For all the complexities inherent to securities enforcement litigation, the law of available remedies has been comparatively simple. There are monetary penalties, there are officer-and-director (or other) bars, and there is “disgorgement.” And while penalties are frequently pursued by the Securities and Exchange Commission’s enforcement Staff, and imposed by judges, based on an opaque hash of factors ranging from the seriousness of the offense to the defendant’s personal character and circumstances, demands for the disgorgement of ill-gotten gains traditionally have been straightforward in both theory and application. Because disgorgement ostensibly is not intended to be punitive, and its principal purpose is to prevent culpable defendants from retaining the financial benefits of their transgressions, disgorgement-related fights between the SEC and litigants historically have centered on fixing, and then forfeiting, the amounts actually received by defendants through their own wrongdoing. [...]
Political leaders and their supporters routinely use the trading of favors to gain and maintain power. Politics in our own era is no exception. This article examines the law of honest services fraud, used to fight public corruption, in the context of the January 2014 indictment of former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell. The case raises important questions about where the line should be drawn between ordinary politics and criminal misconduct.
On Friday, February 28, 2014, Morvillo Abramowitz partner Jonathan Sack will appear at the American Conference Institute’s 3rd National Forum on Securities: Litigation & Enforcement to speak on the panel “The Ins and Outs of Defending a Claim Brought By the Government”. The panel will advise conference-goers on: Preparing for increased coordination amongst various agencies, Learning how to manage defending against different entities, Discovering litigation strategies and tactics to restore balance to the process, and Complying with Brady demands and approaches to employ during discovery. Mr. Sack will be joined by James Wareham, partner, DLA Piper (Washington, DC), Michael Martinez, partner, Mayer Brown, and Greg Bruch, partner, Bruch Hanna LLP (Washington, DC). The ACI’s 3rd National Forum on Securities: Litigation & Enforcement will be held February 27-28, 2014 at the Grand Hyatt Washington in Washington, DC. For more information, please click here.
SEC Enforcement Data Analyses: Volume 2 - 02.26.2014
The latest edition of Morvillo Abramowitz's quarterly report on the work of the SEC's Division of Enforcement provides an in-depth look at the cases filed nationwide during the 2013 calendar year. Analyzing publicly available information, both on a case-by-case basis and on a macro level, our database is an invaluable tool for practitioners to find relevant precedents in SEC enforcement actions.
AFDA's White Collar Roundtable - 02.21.2014
On Friday, February 21, 2014 Morvillo Abramowitz partner Richard Albert took part in a webinar hosted by the Association of Federal Defense Attorneys. The webinar, a monthly white collar roundtable, featured an hour-long panel discussion covering key developments in a variety of white collar areas. Topics addressed included new DOJ policies and enforcement trends; legislative developments; recent case opinions of note; and noteworthy prosecutions, trials and sentencing hearings. For more information, please visit www.afda.org.