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2015 Securities Litigation & Regulatory Enforcement Conference: Insights for the Financial Services Attorney - 04.23.2015

On Thursday, April 23, 2015, Morvillo Abramowitz partner Catherine Foti will speak at the 2015 Securities Litigation & Regulatory Enforcement Conference: Insights for the Financial Services Attorney. Ms. Foti will speak on a panel entitled “Developments in White Collar Matters & Insider Trading Cases in the wake of Newman.” The conference will be held at the New York County Lawyers’ Association in New York from 9:00 a.m. to 5:00 p.m. For more information, please click here.

Duka v. SEC Redux - SEC Holds Home Court Advantage for Another Round - 04.23.2015

Defendants widely view the SEC’s administrative courts as an unfavorable venue to square off against the SEC’s own enforcement staff. Accordingly, as the SEC has recently channeled enforcement proceedings away from the federal courts to its “home” courts, a number of defendants have brought federal court challenges attacking the administrative proceedings on a variety of grounds. Many such challenges have failed to reach the merits, as courts have accepted SEC arguments against the courts’ jurisdiction to interfere with an ongoing agency proceeding and found that defendants are limited to the ordinary post-hearing appellate process to obtain review. In a decision filed last week in Duka v. SEC, Southern District of New York Judge Richard N. Berman ruled that one such challenge seeking to stop an SEC administrative hearing cleared these preliminary hurdles, but ultimately did not make it across the finish line. [...]

Class Action Attorney Fee Applications Under Closer Scrutiny - 04.22.2015

In this article, we discuss two recent decisions by U.S. Southern District Judge Lewis A. Kaplan commenting on the lack of effective adversarial testing of proposed fee applications following securities class action settlements, and stressing the fiduciary obligation of the court to exercise stewardship over settlement funds in that circumstance. Judge Kaplan’s thoughtful approach to the fee awards in these two decisions is likely to influence other judges considering fee applications and may well reinforce the trend of shrinking fee awards, that Judge Kaplan himself noted.

Big Brother Gets Bigger: Installing Independent Monitors Before a Settlement is Signed - 04.17.2015

Federal and state regulators frequently rely on independent compliance monitors to ensure that corporate wrongdoers follow-through on correcting the conduct that got them into trouble. Southern District of New York Judge Jed Rakoff has referred to a corporate monitor as both a “financial watchdog” and “an overseer who has initiated vast improvements in the company’s internal controls and corporate governance.” Typically installed as part of a settlement agreement between the government and those companies that have had legal and regulatory issues, the monitors assess and report back to the government on violations of the law and on the effectiveness of the corporation’s compliance and ethics programs. [...]

Business Law Section Private Investment Funds Committee Meeting - 04.08.2015

On Wednesday, April 8, 2015, Morvillo Abramowitz partner Lawrence Iason will speak at the New York State Bar Association’s Business Law Section Private Investment Funds Committee Meeting. The meeting topic is "Private Equity Fees and Expenses: Recent Exams, Enforcement Referrals and Developing Industry Practices," and will feature Mr. Iason and two other panelists, who will share their unique insights and recent experience with on-going SEC investigations and enforcement referrals. The panel will also cover developing industry trends and best disclosure and compliance practices. The event will be held on April 8, 2015 at the offices of Skadden, Arps, Slate, Meagher & Flom LLP in Times Square, Manhattan.

New Counterattack on SEC’s Home Court Advantage - 04.08.2015

In the wake of the 2010 Dodd-Frank Act’s broadening of the reach of SEC administrative enforcement proceedings, the agency undertook a major shift toward pursuing such proceedings instead of federal district court actions. Administrative proceedings, which are heard by judges employed by the Securities and Exchange Commission, are widely perceived to favor the agency. Indeed, recent data on the results of such proceedings reveal that the SEC has enjoyed a lopsided record of success, compared to its far more modest record in federal court trials. In this article, we discuss federal court challenges to the SEC’s initiation of administrative proceedings, including Duka v. SEC, in which Duka relies on recent Supreme Court precedent to assert an intriguing constitutional challenge to the status of SEC administrative law judges.

Partner Jodi Misher Peikin Featured in GIR’s Women in Investigations 2015 Special Report - 04.01.2015

Following a competitive nomination process, partner Jodi Misher Peikin was selected by GIR to be featured in its first-ever Women in Investigation 2015 Special Report. The report highlights 100 remarkable women in the profession from around the world.

Partner Jodi Misher Peikin Featured in GIR’s Women in Investigations 2015 Special Report - 04.01.2015

Following a competitive nomination process, partner Jodi Misher Peikin was selected by GIR to be featured in its first-ever Women in Investigation 2015 Special Report. The report highlights 100 remarkable women in the profession from around the world.

Ethical Rules for Social Media Gain Clarity - 03.26.2015

On March 10, 2015, the New York County Lawyers Association ("NYCLA") weighed in on the ethical implications for lawyers who use social media websites for professional self-promotion. In Formal Opinion 748, NYCLA addressed the widespread use of LinkedIn and specifically examined (1) whether a LinkedIn profile is considered "Attorney Advertising;" (2) when it is appropriate for attorneys to accept endorsements and recommendations; and (3) what information attorneys should include and exclude from social media profiles. Although the NYCLA opinion does not resolve all open questions about the nature and extent of the information attorneys can post on LinkedIn without running afoul of the New York Rules of Professional Conduct, it answers significant questions left open by two Committees of the New York State Bar Association ("NYSBA"). [...]

Discharging Tax Debts in Bankruptcy: When is a Return not a Return? - 03.19.2015

Falling behind on one’s taxes often leads to a downward spiral, and it is not uncommon for a taxpayer who cannot pay her tax obligations to decide not to file a return. Not only does such a failure to file expose the taxpayer to additional penalties and potential criminal liability, but it can have devastating ramifications if she subsequently files for bankruptcy. This article discusses In re Fahey, in which the United States Court of Appeals for the First Circuit joined the Fifth and Tenth Circuits in concluding that filing deadlines are “filing requirements” under 11 U.S.C. Section 523(a)(*) and thus that the tax liabilities reflected on untimely returns are not subject to discharge. While these Courts of Appeals have all interpreted the so-called “hanging paragraph” in a manner that precludes virtually all late-filers from discharging tax liabilities in bankruptcy, there are compelling reasons to exclude returns accepted by the relevant taxing authority from such a harsh rule. Clearly, there is more to come on this issue. In the meantime, Fahey provides yet another reason for practitioners to urge their clients to file their returns on a timely basis.

Meet the Fokker: Continued Judicial Skepticism toward Deferred Prosecution Agreements - 03.12.2015

In recent years, the Department of Justice has come to rely on Deferred Prosecution Agreements (DPAs) to resolve many high-profile investigations of corporate wrongdoing. Under DPAs, criminal charges are filed in district court, and prosecution is deferred pending a corporate defendant’s fulfillment of remedial obligations, including payments to the government. [...]

Partner Catherine M. Foti Testifies Before the United States Sentencing Commission - 03.12.2015

NEW YORK, March 12, 2015 - Partner Catherine M. Foti gave testimony on behalf of the New York Council of Defense Lawyers (“NYCDL”) before the United States Sentencing Commission (“Commission”) for the hearing on 2015 Proposed Amendments to the Federal Sentencing Guidelines. In her capacity as the Chair of the NYCDL’s Sentencing Guidelines Committee, Cathy addressed the Commission with respect to the proposed amendments to the economic crime guidelines under consideration during this amendment cycle.
Please click here to read Cathy’s full testimony.

White-Collar Enforcement Under Attorney General Eric Holder - 03.04.2015

When Attorney General Eric Holder took office in February 2009, the country was in the midst of a financial crisis, and many voices called for holding companies and individuals accountable for alleged criminal conduct. In this article, we discuss how the Department of Justice responded to the financial crisis, highlight key initiatives separate from the financial crisis, and address likely Department priorities going forward.

Catherine M. Foti and Curtis B. Leitner Featured in The New York Law Journal - 03.02.2015

On March 2, 2015, Morvillo Abramowitz partner Catherine M. Foti and associate Curtis B. Leitner were mentioned in a New York Law Journal article, “Community College Not Immune From Suit, Circuit Rules.” The article highlights the firm’s role in the Second Circuit’s denial of Westchester Community College’s motion to dismiss the case of its former professor’s termination.

A Small Barracuda in a Big Pond: New York’s Department of Financial Services - 02.27.2015

World-wide financial institutions take notice – New York has a new regulator on the scene. Newsweek describes him as “body-slamming” one of the world’s largest banks, “the man the banks fear most.” The Wall Street Journal has labeled him “one of Wall Street’s most dogged pursuers.” American Banker characterizes him as “pushing the envelope” of bank regulation. In three years on the job, this regulator and the new agency he rules have extracted more than $3 billion in fines from global banks. In a speech he delivered at Columbia University this Wednesday, the regulator made clear that, in all likelihood, these headline-grabbing events are just a sign of things to come. [...]