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IRS Summons Enforcement After 'United States v. Clarke' - 09/19/14

IRS agents conducting audits have the power to issue summonses requiring taxpayers and third parties to produce documents and testify under oath. In a summons enforcement action, the recipient of a summons can avoid providing the requested evidence by showing that the summons was issued for an improper purpose. This past term, the U.S. Supreme Court decided what showing a party must make to obtain an evidentiary hearing as to the propriety of a summons, concluding that the party must “plausibly rais[e] an inference of bad faith.” This article discusses the Court’s decision in United States v. Clarke and addresses the potentially significant questions that remain open.

Did the Summer Shine Any Light on Dodd-Frank Whistleblower Land? - 09/12/2014

The summer saw a significant new development in the Securities and Exchange Commission's (“SEC”) whistleblower bounty program but failed to see any development on obtaining clarification as to the reach of the Dodd-Frank Act's whistleblower protection provision. While the SEC was busy finalizing the first-ever award to an employee working in the area of compliance, the courts were intent on taking a break from dealing with whistleblowing employees, and their SEC amici, to achieve clarity on the issue of whether reporting internally, but not to the SEC, is sufficient to fall within the protections of the Dodd-Frank Act’s anti-retaliation provision. [...]

Bank Secrecy Act Prosecutions: Why Few Individuals Are Charged - 09/02/2014

Following the 2007-08 financial crisis, government enforcement efforts have met with a recurring criticism – that individuals have not been held accountable for causing the unlawful conduct of institutions. This criticism has been directed at a series of high-profile prosecutions of banks for violations of the anti-money laundering requirements of the Bank Secrecy Act.

Below, we consider the relative scarcity of individual prosecutions in BSA cases and suggest that it lies in the nature of the criminal violations at issue, which focus chiefly on institutional failures to adopt adequate controls, and in the difficulties of investigating the extraterritorial conduct of global financial institutions. It is not surprising, in this light, that civil penalties have begun to receive heightened interest among enforcement authorities as a means of sanctioning and deterring individual misconduct—a development seen in other areas of white-collar enforcement since the financial crisis.

When The Government Chases the Tail of the Dog - 08/27/2014

Two recent white-collar cases are examples of a phenomenon that one tends to find when the defense is able to emerge victorious: a case with some core facts that simply do not fit the pattern of wrongdoing expected in the popular conception. The phenomenon is that of the case that trails behind, and that is missing the characteristics that ultimately matter most: the tail, not the dog. [...]

Shrinking Grounds for General Jurisdiction After 'Daimler' - 08.26.2014

The Supreme Court’s recent decision in Daimler v. Bauman, coupled with its 2011 decision in Goodyear Dunlop Tires Operations v. Brown, call into question whether certain long-held assumptions about the reach of CPLR 301—New York’s general jurisdiction statute—are consistent with due process. Daimler’s impact is already evident in decisions from the U.S. District Court for the Southern District of New York. We discuss below several of those recent decisions, which raise important questions about the scope of general jurisdiction in New York.

Morvillo Abramowitz Named in New York Law Journal's 2014 Boutique and Practice Specific Law Firm Guide - 08/25/2014

Morvillo Abramowitz was selected to appear in the New York Law Journal’s 2014 Boutique and Practice Specific Law Firm Guide in the categories of Criminal Law, Commercial Litigation and Securities Law.

The New York Law Journal’s 2014 Boutique and Practice Specific Law Firm Guide was released on August 25, 2014.

Be Careful Where You Whistle While You Work: Courts Impose Limits on Dodd-Frank's Protection for FCPA Whistleblowers - 08/20/2014

The Dodd-Frank Wall Street Reform and Consumer Protection Act was heralded as providing whistle-blowing employees protection from retaliation by their employers. In Liu v. Siemens AG, handed down last week, the Second Circuit limited the reach of the Act’s anti-retaliation protections to domestic whistleblowers. In doing so, the Court rejected a claim brought by a Taiwanese lawyer employed by a German corporation who disclosed suspected Foreign Corrupt Practice Act violations by the corporation’s Chinese subsidiary, finding that the relevant provisions of the Dodd-Frank Act did not apply “extraterritorially” [...]

When The Government Searches Your Hard Drives - 08.05.2014

Government searches of ever more sophisticated technology and ever vaster quantities of electronic data implicate ever increasing stakes for individual privacy. Recent decisions from the Supreme Court and the Second Circuit demonstrate that courts are recognizing these stakes, and may be beginning to breathe more life back into the Fourth Amendment after years of cutting back on its protections. This article takes a look at the Second Circuit's ruling in United States v. Ganias, which reversed a tax evasion conviction based on the government's improper off-site search of hard drives, and discusses related Fourth Amendment issues that pose particular challenges when the government seizes digital media.

D.C. Circuit Upholds Claim Of Corporate Attorney-Client Privilege - 08.05.2014

A recent blog post addressed a noteworthy decision in United States ex rel. Barko v. Halliburton Co., No. 1:05-CV-1276, 2014 WL 1016784 (D.D.C. Mar. 6, 2014), which held that materials relating to an internal investigation were not protected by the attorney-client privilege. The decision was quickly seen as casting doubt on a company’s ability to conduct a privileged investigation of alleged employee misconduct. A petition for writ of mandamus to the Court of Appeals for the D.C. Circuit followed, along with amicus briefs by groups interested in protection of the privilege. [...]

Elkan Abramowitz Featured in The New York Law Journal - 08.04.2014

On August 4, 2014, Morvillo Abramowitz partner Elkan Abramowitz was quoted in a New York Law Journal article, “Abramowitz Tapped as Counsel In Moreland Commission Probe.” In response to questions about his role, Mr. Abramowitz stated, “My role is to help coordinate a response to the U.S. attorney’s investigation. I don’t represent any individual. I represent the entity.”

Association of Corporate Counsel's Full - Day CLE: A Legal Toolkit for In-House Counsel - 07.23.2014

On Wednesday, July 23, 2014, Morvillo Abramowitz partner Jonathan S. Sack will participate in a full-day CLE program hosted by the Greater New York Chapter of the Association of Corporate Counsel. Mr. Sack's panel, "Resolving Government Investigations: Trends in Judicial Review of Deferred Prosecution Agreements, Plea Agreements and SEC Consent Judgments," will address the new challenges faced by companies seeking to resolve investigations. He will be joined by Nancy Kestenbaum, Partner, Covington & Burling LLP, and Thomas M. Merritt, Deputy General Counsel, KCG Holdings, Inc. For more information, please click here.