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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. [...]
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 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.
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
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. [...]
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.
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.”
Big Brother Vs. Underfunded Enforcement - 07.23.2014
On July 5, 2014, in an opinion piece entitled “The Real Internal Revenue Scandal,” the editorial board of The New York Times noted that “every dollar spent on internal revenue service enforcement yields $6 in additional revenue.”
I suspect that the SEC would make the same claim, that for every dollar spent on staff attorneys in the Division of Enforcement, the SEC recovers a multiple of that number. [...]
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.
On July 18, 2014, Morvillo Abramowitz partner Stephen M. Juris was quoted in Global Investigations Review regarding the Second Circuit’s affirmance of the dismissal of Mexican state-owned oil company Pemex’s RICO claims against Siemens AG and SK Engineering & Construction Co.
As we noted in two of our prior posts in the Insider blog, the government has long touted its ability to rely upon data mining as a means of detecting fraud in the federal health care system, and has initiated a host of investigations and prosecutions based on its analysis of claims data from the Medicare and Medicaid programs. Yet any approach that relies on data mining rests on a fragile foundation, because the quality of the information upon which the government relies has often been in doubt. As we explained in the first of our two prior posts on this topic, an HHS Regional Inspector General testified in June 2012 that much of the data used to identify overpayments and fraud is not “current, available, complete, [or] accurate.” Subsequently, in a post from November 2012, we described the concerns that two United States Senators raised regarding the effectiveness of the “Fraud Prevention System Program” (“FPS”), which is intended to use “predictive analysis” to reduce fraud, waste, and abuse in the Medicare program. [...]
Elkan Abramowitz Quoted in Law360 - 07.14.2014
On July 14, 2014, Morvillo Abramowitz partner Elkan Abramowitz was quoted in a Law360 article, “Dewey Execs Likely Bound for Trial Despite Ace Legal Teams.” Confident in the legal position that was taken, Mr. Abramowitz stated, “We are hopeful that the judge will treat our arguments with the same seriousness with which we made them. We believe the indictment should be dismissed.” Morvillo Abramowitz partner Lawrence Bader, who is also representing Steven Davis, was mentioned in the article as well.
SEC Enforcement Data Analyses: Volume 2, Issue 1 - 07.07.2014
The third publication of Morvillo Abramowitz's SEC Enforcement Data Analyses examines the work of the Securities & Exchange Commission's Division of Enforcement, beginning with cases filed on or after January 1, 2013. This publication focuses primarily on cases filed between January 1, 2014 and March 31, 2014 and provides a useful tool to discern important enforcement trends and precedents.