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AFDA's White Collar Roundtable - 05.29.2015
On Friday, May 29, 2015, Morvillo Abramowitz partner Robert M. Radick will take part in a webinar hosted by the Association of Federal Defense Attorneys. This month’s AFDA White Collar Roundtable will address key developments in a variety of white collar areas, including health care, securities, FCPA, tax, and more. Topics addressed by panelists will include new DOJ policies and enforcement trends; legislative developments; recent case opinions of note; and noteworthy prosecutions, trials and sentencing hearings. The webinar will begin at 12:00 p.m. and continue until 1:00 p.m. For more information or to register, please visit www.afda.org.
Deferred Prosecution Agreements with the Department of Justice (DPAs) have been a powerful tool of federal white-collar criminal enforcement for a number of years. At the same time, DPAs have been attacked from many sides – judges, elected officials and commentators – for being too lenient on companies and too frequently used in lieu of prosecutions of individuals, as I have discussed in recent posts.
In a series of recent speeches Assistant Attorney General Leslie Caldwell has given a thoughtful defense of DPAs, explaining the basic merits of DPAs (and Non-Prosecution Agreements, or NPAs), while also responding to critics of such agreements. In speeches at the ACAMS Anti-Money Laundering & Financial Crime Conference in March and at NYU on April 14 and 17, AAG Caldwell described DPAs and NPAs as "useful enforcement tools" that allow the Justice Department to "accomplish as much as, and sometimes even more than, [it] could from a criminal conviction." She explained, "[w]e can require that the banks cooperate with our ongoing investigations, particularly in our investigations of individuals. We can require that such compliance programs and cooperation be implemented worldwide, rather than just in the United States. We can require periodic reporting to a court that oversees the agreements for its terms." [...]
NEW YORK, May 22, 2015 - Morvillo Abramowitz Grand Iason & Anello PC has been ranked by Who’s Who Legal 100 in the top 20 in the category of Asset Recovery, Business Crime Defence & Investigations. Who’s Who Legal has also named 7 partners as experts in Business Crime Defence, including Elkan Abramowitz, Robert J. Anello, Paul R. Grand, Lawrence Iason, Jodi Misher Peikin, Jonathan S. Sack, and Richard D. Weinberg.
Please find the full editorial section here.
Since 2005, Law Business Research’s Who’s Who Legal has listed only the leading lawyers in each field based exclusively on the findings of in-depth research. Who’s Who Legal draws on 18 years of independent research encompassing thousands of hours of interviews with leading lawyers and hundreds of thousands of votes and recommendations, in order to identify the best law firms in the world. For more information, please visit www.whoswholegal.com.
The Government’s Use of Tax Returns at Trial - 05.21.2015
In cases charging either tax evasion or filing false returns, the government will naturally offer the defendant’s tax returns for the years charged in the indictment as part of its case-in-chief, and the defendant will be hard pressed to object to their admissibility. This, however, is not the only way the government uses the defendant’s tax returns in criminal cases. This article discusses the government’s ability to access the defendant’s returns for use in non-tax cases, as well as the evidentiary issues surrounding the admissibility of both “other year returns” in tax cases and any returns in non-tax cases.
Since its inception, Chambers USA: America's Leading Lawyers for Business Guide has recognized Morvillo Abramowitz Grand Iason & Anello PC for excellence in Litigation: White-Collar Crime & Government Investigations with its highest ranking, Band 1. The firm is also recognized in FCPA. It is noted that the team is known for its "enviable reputation as a boutique litigation practice, with excellent bench strength and formidable experience in complex criminal investigations. It also boasts impressive courtroom expertise, and bolsters its practice with notable cross-border strength and skill in civil litigation. It is considered a go-to practice for individuals and corporations facing major investigations or criminal proceedings."
More than half of the firm's partners were named leading lawyers by Chambers USA in the categories of Litigation: White-Collar Crime & Government Investigations: Elkan Abramowitz, Richard F. Albert, Robert J. Anello, Lawrence Iason, Robert M. Radick, Jonathan S. Sack, Jeremy H. Temkin, and Richard D. Weinberg; and Securities: Regulation: Enforcement: Richard D. Weinberg. Clients praise the firm, noting, '"they're one of the leading white-collar boutiques in the city – they're the gold standard.'" Clients also echo that, '"they have a very deep bench on the FCPA side, and the quality across the board is good.'"
Since 1990, Chambers and Partners has been researching the legal profession, identifying the leading lawyers and law firms through in-depth and client-focused interviews with thousands of lawyers and their clients. Known for its independence and the objectivity of its research, Chambers USA ranks the leading firms and lawyers in an extensive range of practice areas throughout the U.S. with their guides read by industry-leading companies, organizations, and law firms throughout the U.S. and worldwide.
The Second Circuit’s decision in United States v. Newman continues to have a significant impact on insider trading cases. In this article, we discuss Judge Rakoff’s recent decision in SEC v. Payton, compare the mental state requirement in criminal and civil insider trading cases, and consider Judge Rakoff’s recent suggestion, in a talk at NYU Law School, that civil and criminal insider trading should be addressed in two separate statutory provisions.
On Tuesday, May 5, 2015, Morvillo Abramowitz partner Richard F. Albert will speak at the Foreign Corrupt Practices Act and International Anti-Corruption Developments 2015 seminar. Mr. Albert will speak on a panel entitled “What Do You Need to Know When Representing Individuals?” The seminar will be held on May 4 - 5 at the PLI New York Center from 9:00 a.m. to 5:00 p.m. For more information, please click here.
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.
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. [...]
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.
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. [...]
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.
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.