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2nd Annual White Collar Crime Institute - 05.20.2013
On Monday, May 20, 2013 Morvillo Abramowitz Partner Elkan Abramowitz took part in the 2nd Annual White Collar Crime Institute, hosted by the White Collar Crime Committee of the New York City Bar Association. The full-day program explored critical developments that have characterized the new era of white collar enforcement. Mr. Abramowitz took part in a Plenary Session titled, "How to Win (Without Trial): Pre-Indictment Advocacy" which covered topics including: Proffers, attorney proffers, and proffer agreements; Strategic waiver of attorney-client privilege; Pre-indictment litigation; Pitches to prosecutors; Joint defense agreements, and; Minimizing collateral damage in parallel civil proceedings. The panel was moderated by the Honorable Raymond J. Lohier, Jr., U.S. Court of Appeals Judge, Second Circuit, and included Karen Patton Seymour of Sullivan & Cromwell LLP, Bruce E. Yannett of Debevoise & Plimpton LLP, and Richard B. Zabel, Deputy U.S. Attorney, SDNY. For more information please click here.
On Thursday, May 16, 2013 Morvillo Abramowitz Partner Robert Anello co-chaired an ethics CLE program entitled "Current Ethical Issues for In-House Counsel & Those Who Advise Them." The program, held by the New York City Bar Center for CLE, was designed especially for in-house counsel and outside counsel advising their in-house clients. Using a stimulating series of hypotheticals based on real-life experience, a panel of experts reviewed a variety of important professional responsibility issues that affect corporate counsel on a daily basis, including: Understanding the "Corporate Miranda" warnings; Special problems representing employees in internal investigations; Advance conflict waivers and other problems with retainer agreements; Attorney-client privilege issues within corporate families and outside law firms; Disclosure of privileged materials - inadvertent and purloined; Gathering information, and new developments in the "no-contact" rule. Mr. Anello co-chaired the program with Ronald Minkoff of Frankfurt Kurnit Klein & Selz PC. The faculty included James L. Bernard of Stroock & Stroock & Lavan LLP and Orly Lax, Head of US Legal for Man Investments. For more information please click here.
The government's ever-evolving response to the United States financial crisis has come full circle, as civil Justice Department Attorneys seek to rely on legislation enacted to protect financial institutions from fraud to sue those very same institutions. Recently, the United States Attorney's Office for the Southern District of New York has initiated a number of law suits under the "obscure" Financial Institutions Reform Recovery Enforcement Act (FIRREA). FIRREA was enacted in 1989 in response to the massive failure of almost half of America's savings and loan institutions. In its 24 year history, the law typically has been used to bring suit against officers and directors of failed institutions. The government now seeks to expand the statute's reach to include the institutions themselves. [...]
At one time whistleblowers were relatively rare and isolated, and the law did not grant them much protection. But that's not the case anymore. Fulbright & Jaworski's recent litigation trends survey of in-house counsel found that more than 25 percent of companies had faced whistleblower allegations in the past three years.
Whistleblowers employed by defense contractors, pharmaceutical manufacturers and other companies have increasingly taken allegations of violations of law to the government—with striking results. Companies on the receiving end of these allegations have paid billions of dollars in fines and penalties following whistleblowers' cooperation with law enforcement authorities and civil lawsuits. What's more, new laws have granted whistleblowers enhanced protections against retaliation and increased financial incentives to tell the government about suspected violations of law by their employers. [...]
In recent years, pharmaceutical companies have faced criminal investigations and charges in regard to alleged off-label marketing of prescription drugs and kickbacks to doctors. For this reason, the filing last month of two civil cases against Novartis was noteworthy and may aid defense lawyers in their efforts to oppose criminal charges being filed against clients in the health care industry. [...]
The IRS, Email Privacy And the Legislative Answer - 05.08.2013
Pursuant to the Electronic Communications Privacy Act of 1986, the government can obtain emails and electronic data stored by third parties like Google, Yahoo! and Facebook. Given the dramatic changes in the way people use technology over the past 27 years, Congress is presently drafting legislation aimed at bringing the rules regulating the government's access to electronic communications into the 21st century. As discussed in this article, this effort is likely to get a boost from publicity surrounding the recent release of internal IRS documents describing the agency's policies regarding how it obtains emails, text messages and other private electronic communications. While the IRS's historical practices appear to have been consistent with those applied by other law enforcement agencies, the public response to the IRS's documents and recent federal court decisions addressing the protection to be accorded emails demonstrate the need for legislative action.
In recent congressional testimony, Attorney General Eric Holder acknowledged that prosecutors would hesitate before filing criminal charges against a large financial institution because of the effect on the economy of such a prosecution. This article argues that the Attorney General's comments reflect a shift by DOJ, following the demise of Arthur Andersen, toward settlements with companies that either avoid criminal convictions or seek to mitigate their impact on innocent third parties.
Three times over the past four years, the IRS has given taxpayers with undisclosed offshore accounts the opportunity to come clean and avoid prosecution. While the most recent offer – the 2012 Offshore Voluntary Disclosure Program (OVDP) – remains open indefinitely, the IRS's recent decision to disqualify approximately 50 taxpayers who disclosed Bank Leumi accounts could undermine the program's continued success. [...]
In our June 24, 2011, article for NYLJ Outside Counsel, titled "How 'AT&T Mobility' Changes the Course of Securities Class Actions, Arbitrations," we discussed the then-recent U.S. Supreme Court decision in AT&T Mobility v. Concepcion and predicted that Concepcion, which held the Federal Arbitration Act (FAA) preempts state law defenses to contractual class action and arbitration waivers, would likely lead to a conflict between the FAA and long-standing FINRA rules prohibiting member firms from compelling class litigants to arbitrate their disputes. This article discusses an opinion issued by a FINRA Hearing Panel, in the matter of Department of Enforcement v. Charles Schwab & Co., holding that, consistent with Concepcion, the brokerage could not be penalized by FINRA for inserting a class action and arbitration waiver provision into their customer agreements.
On Wednesday, April 24, 2013 Morvillo Abramowitz Partner Robert Radick took part in a webinar hosted by the Association Of Federal Defense Attorneys. The webinar, titled "Key Updates and Defense Strategies In Federal Health Care Fraud Investigations and Prosecutions," featured a panel format and included an online Question/Answer session by which attendees posted questions via a moderated chat room. The program was moerated by Gregory Nicolaysen and included Matthew Medlin and Margaret Daley of Duff & Phelps, as well as Bagher Habibi of Bagher Habibi Consulting. For more information, please visit www.afda.org.
I almost feel sorry for Mary Jo White, the Chairman of the SEC, and Andrew Ceresney and George Canellos, soon to be Co-Directors of the SEC’s Division of Enforcement. Four days after Ms. White was sworn in, Gretchen Morgenson of the New York Times was reminding Ms White on page one of the Times' Sunday Business Section that time was running out on the SEC's ability to bring cases based on "questionable practices and disclosures arising from the mortgage bust of 2008." [...]
The news is out! There's a buzz in the blogosphere. It's trending on Twitter. The Securities and Exchange Commission has authorized the use of social media channels for the disclosure of material, non-public information. In a Report of Investigation released earlier this month, announcing that its Division of Enforcement determined not to pursue an enforcement action against Netflix, Inc. and its Chief Executive Officer Reed Hastings, the SEC provided guidance regarding how issuers using social media channels to disseminate material non-public information may comply with Regulation FD and the Commission's August 2008 Guidance on the Use of Company Web Sites. [...]
This article discusses three decisions from the U.S. District Court for the Southern District of New York pertaining to federal diversity jurisdiction. These cases serve as a reminder that the dictates of the diversity statute, 28 U.S.C §1332, may not be as plain as they appear, especially to a judiciary growing skeptical of the continued need for diversity jurisdiction as a protection against local bias by state courts.
Morvillo Abramowitz Partner Catherine Foti was quoted in "Lawyers Weigh In On Supreme Court's FLSA Ruling" (Law360, April 16, 2013) discussing the Supreme Court's finding in Genesis HealthCare Corp. et al. v. Laura Symczyk that a nurse's putative Fair Labor Standards Act collective action against her employer cannot proceed because the employer's offer of full relief for her individual claims rendered the case moot. Foti said that, "Although today's Supreme Court decision is limited by the assumption that the plaintiff's claim was moot, the majority's decision strongly suggests that a sufficient Rule 68 offer of settlement will extinguish a representative plaintiff's claim, thereby giving employers a mechanism by which they can cut the legs out from FLSA collective actions."