Publications

12.06.16 | Articles

Government Searches: The Trouble With Taint Teams

New York Law Journal

Over the years, a number of courts and practitioners have criticized the "fox guarding the chicken coop" procedure of allowing a government taint team to try to cull attorney-client privileged materials from seized documents. In this article, we discuss a recent case, U.S. v. DeLuca, that illustrates just what these skeptical courts and counsel have been concerned about.

Related Lawyers: Richard F. Albert, Robert J. Anello

11.17.16 | Articles

The Ever-Expanding Scope of the IRS Obstruction Statute

New York Law Journal

The “Omnibus Clause” of 26 U.S.C. § 7212(a) criminalizes conduct that “obstructs or impedes . . . the due administration of” the Internal Revenue Code. In recent years, the government has used the Omnibus Clause to reach acts beyond those that obstruct IRS audits or investigations, and last month, the U.S. Court of Appeals for the Second Circuit decided United States v. Marinello in which it joined other courts of appeals in concluding that § 7212(a) can be violated without proof that there was a pending IRS investigation or proceeding, let alone that the defendant was aware of the IRS’s activity. This article discusses Marinello and its expansive reading of §7212(a).

Related Lawyers: Jeremy H. Temkin

11.01.16 | Articles

False Claims and Mail and Wire Fraud: Implications of 'Universal Health'

New York Law Journal

This past term, the Supreme Court took an expansive view of liability for "implied certifications” in the context of civil claims under the False Claims Act. In this article, we discuss how the Supreme Court’s broad theory of liability under the FCA might be applied to criminal prosecutions for “omissions” under the mail and wire fraud statutes.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

10.18.16 | Articles

Cautionary Tales When Communicating With Public Relations Consultants

New York Law Journal

Lawyers often retain media or public relations consultants to assist in their representation of clients in high-profile litigations or investigations, generally taking steps to attempt to protect their communications with these consultants from disclosure. In this article, we discuss a recent Southern District of New York decision ordering disclosure of litigation-related communications with a public relations firm.

Related Lawyers: Judith L. Mogul, Edward M. Spiro

10.04.16 | Articles

Questionable Extraterritorial Extension of Foreign Corrupt Practices Act

New York Law Journal

One of the most significant areas of U.S. law enforcement's extraterritorial expansion has been the Foreign Corrupt Practices Act (FCPA), a niche notable for untested legal theories because of the dearth of cases that actually are litigated. Now, however, in United States v. Hoskins, the U.S. Court of Appeals for the Second Circuit will determine the validity of prosecutors’ use of conspiracy and accomplice liability theories to expand their extraterritorial reach even beyond that of the underlying FCPA statute. In this article, we discuss Hoskins and the likely impact the Second Circuit’s decision will have beyond FCPA enforcement efforts.

Related Lawyers: Richard F. Albert, Robert J. Anello

09.15.16 | Articles

'Greenfield': Act of Production Doctrine Is Alive and Well

New York Law Journal

Over the past five years, eight Circuit Courts of Appeals have held that the “required records” doctrine precludes taxpayers from relying on the Fifth Amendment privilege against self-incrimination to avoid production of certain offshore account records. In this article, we discuss a recent Second Circuit decision that serves as an instructive reminder of the limits of the required records doctrine and the continuing importance of the Fifth Amendment’s act of production doctrine.

Related Lawyers: Jeremy H. Temkin

09.06.16 | Articles

Insider Trading Among Family Members and the Limits of 'Newman'

New York Law Journal

In the closely-followed case of United States v. Sean Stewart, the U.S. Attorney’s Office for the Southern District recently prevailed in its first insider trading trial since the Second Circuit’s landmark decision in United States v. Newman. The Stewart case was a family drama, as the government accused an investment banker of tipping his father about impending deals, and the defendant argued that his father betrayed a son’s trust by trading based on their discussions. In our latest article, we analyze the Stewart case and suggest that Newman has not changed all that much in tipper/tippee cases involving family members.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08.18.16 | Articles

Iran Sanctions: What’s Old Is New Again

Business Law Today

Related Lawyers: Christina Lee

08.17.16 | Articles

Big Firm/Small Firm — Size Matters For Attorney Disqualification

New York Law Journal

When it comes to imputing conflicts of interest, size really does matter. In our latest article, we discuss two recent decisions of the U.S. District Court for the Southern District of New York highlighting challenges facing small and large firms in conducting conflict checks and integrating lateral partners into law firms.

Related Lawyers: Edward M. Spiro, Judith L. Mogul

08.10.16 | Articles

Collecting Taxes From Convicted Defendants

New York Law Journal

At the conclusion of a criminal tax case, a convicted defendant is rightfully most concerned with the prospect of incarceration. There are, however, other consequences of a conviction and, in federal criminal tax cases, the financial ramifications are complicated by the potential for a subsequent civil proceeding brought by the Internal Revenue Service seeking taxes, interest and penalties far beyond what was addressed in the criminal case. This article discusses cases that highlight these issues, and concludes that practitioners need to be cognizant of the financial consequences of tax convictions.

Related Lawyers: Jeremy H. Temkin

08.04.16 | Articles

More Bridgegate Fallout: Revealing Unindicted Co-Conspirators?

New York Law Journal

The so-called Bridgegate scandal, in which New Jersey Governor Chris Christie's administration allegedly closed entrance lanes to the George Washington Bridge in September 2013 to create traffic jams in retribution for the mayor of Fort Lee's failure to endorse Christie, already has had a significant impact on a number of prominent careers, and perhaps even on our national politics. In this article, we discuss the recently argued appeal of a demand by the media for disclosure of the names of unindicted co-conspirators in the pending federal prosecution of two top Christie associates, and the possible influence the appeal may have on courts' future deference to the reputational interests of individuals implicated but not charged in prominent investigations.

Related Lawyers: Richard F. Albert, Robert J. Anello

07.07.16 | Articles

Implications of 'Countrywide' for Mail and Wire Fraud Prosecutions

New York Law Journal

Prosecutors tend to interpret white-collar criminal statutes expansively, and sometimes courts push back. In this article, we discuss the Second Circuit’s decision reversing the $1.2 billion judgment against Bank of America’s Countrywide mortgage unit, and explain how a relatively obscure principle of statutory interpretation, the “common law canon,” led to the Second Circuit’s unexpected decision.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.21.16 | Articles

Requirements for Invoking the Common Interest Doctrine

New York Law Journal

Attorneys and their clients often rely on the “common interest” doctrine to shield from disclosure communications among allied parties and their counsel. Although invocation of the common interest doctrine is seldom challenged through litigation in the Southern District of New York, its contours are not as well-defined as many lawyers assume. This article discusses the requirements for the invocation of the common interest doctrine, highlights two recent decisions, and touches on the aspects of the doctrine that remain to be defined.

Related Lawyers: Judith L. Mogul, Edward M. Spiro

06.09.16 | Articles

White-Collar Practitioner’s Guide to the Supreme Court’s Term

New York Law Journal

The Supreme Court’s 2015 Term promises significant developments for the white-collar bar. The court already has issued three decisions that are noteworthy for white-collar practitioners, with the most significant likely yet to come. In this article, we discuss the Supreme Court's recent white-collar decisions as well as cases to be decided in the upcoming year, and consider the impact of Justice Antonin Scalia’s absence.

Related Lawyers: Robert J. Anello, Richard F. Albert

05.23.16 | Articles

Accessing Records With Bank of Nova Scotia Summonses

New York Law Journal

In a recent interview, Acting Assistant Attorney General Caroline D. Ciraolo described the Tax Division’s continuing pursuit of individuals believed to have evaded their U.S. tax obligations through offshore accounts. Among other things, Ms. Ciraolo noted that, in the wake of the DOJ’s Swiss Bank Program, the Tax Division’s civil trial attorneys were seeking to enforce Bank of Nova Scotia summonses served on U.S branches of foreign banks. This article discusses the authority supporting the use of such summonses to avoid foreign bank secrecy laws and the implications of so-called Bank of Nova Scotia summonses looking forward.

Related Lawyers: Jeremy H. Temkin

05.10.16 | Articles

When Do Business Negotiations Cross the Line and Become Fraud?

New York Law Journal

The mail, wire and securities fraud statutes have a wide but not unlimited reach. An area of particular controversy is the application of these statutes to arm’s length business negotiations. In this article, we discuss several recent appellate decisions in which business negotiations have given rise to criminal fraud charges, and suggest that the line between acceptable negotiation and fraud warrants further judicial clarification.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

04.20.16 | Articles

Service of Process by Email on Defendants Located Outside the U.S.

New York Law Journal

A plaintiff seeking to serve a defendant located overseas can face substantial, sometimes insurmountable logistical challenges. In this article, we discuss several recent Southern District of New York decisions in which plaintiffs, frustrated by elusive defendants or uncooperative foreign governments, have been permitted to serve defendants through email under Federal Rule of Civil Procedure 4(f)(3).

Related Lawyers: Edward M. Spiro, Judith L. Mogul

04.06.16 | Articles

Rise of ABA Task Force’s ‘Shadow Sentencing Guidelines’

New York Law Journal

Because the federal sentencing guidelines applicable to fraud cases are widely acknowledged to be broken and dysfunctional, particularly in high-loss cases, sentencing judges may increasingly seek other sources to help guide their discretion. In this article, we discuss the thoughtful alternative framework offered by a blue-ribbon panel of judges, law professors and practitioners, and highlight recent court decisions applying those “shadow guidelines.”

Related Lawyers: Richard F. Albert, Robert J. Anello

03.23.16 | Articles

DOJ Tax Division Today: Interview With Acting Assistant Attorney General

New York Law Journal

Early last year, after almost two decades in private practice, Caroline Ciraolo joined the Tax Division of the Department of Justice, and she has served as the Acting Assistant Attorney General since February 25, 2015. In that capacity, she leads the DOJ’s civil and criminal tax enforcement efforts. In this article, Ms. Ciraolo discusses the DOJ’s Swiss Bank Program, the Tax Division’s commitment to offshore enforcement and its challenges going forward.

Related Lawyers: Jeremy H. Temkin

03.02.16 | Articles

Justice Scalia’s Approach to Textualism in White-Collar Law

New York Law Journal

The late Justice Antonin Scalia was the leading expositor of textualist methodology over the last several decades. Whatever one’s view of textualism and of Justice Scalia, every judge and lawyer (for the government and the defense) must now reckon with the precise language of the statute at issue and be prepared to analyze the relevant words of the statute in context. In light of Justice Scalia’s recent death and the ongoing debate over his judicial philosophy, this article reflects upon the Justice’s influence on the interpretation of white-collar statutes and highlights the significant impact of his textualist approach.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack


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