Publications

02.21.17 | Articles

Stricter Standards For Standing

New York Law Journal

Following the U.S. Supreme Court's May 2016 decision in Spokeo v. Robins, courts have been re-examining whether plaintiffs seeking statutory damages, particularly under various consumer protection laws, have Article III standing to pursue their claims. This article discusses how judges in the Southern District of New York are beginning to flesh out this new approach to standing.

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

02.17.17 | Articles

I Sentenced Criminals To Hundreds More Years Than I Wanted To. I Had No Choice.

The Washington Post

This essay critiques federal mandatory minimums, examining both the inherently unfair outcomes they generate for convicts, and the predicament in which these mandatory minimums place our federal district court judges – who are forced to levy penalties they know to be unjust. It was written by associate Peter Dubrowski and Shira A. Scheindlin, a former federal judge in the Southern District of New York.

To view this essay, please click here.

Related Lawyers: Peter Dubrowski

02.07.17 | Articles

SEC's View on Statute of Limitations Faces Another Test

New York Law Journal

SEC Takes a Second Bite at Statute of Limitations Apple: Last month, the Supreme Court granted certiorari in Kokesh v. SEC to settle the issue of whether the so-called "fallback" five-year statute of limitations applies to SEC disgorgement claims. This article highlights the federal courts’ ongoing debate about the nature of the disgorgement remedy, and the potential impact of the Supreme Court’s decision on SEC enforcement proceedings.

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

01.30.17 | Articles

Yates Letter v. Yates Memorandum: Which Will We Remember?

Business Crimes Bulletin

Before her last stand refusing to enforce the Muslim Ban and subsequent firing, Sally Quillian Yates was best known for authoring the Yates Memorandum. This policy directive, released over a year ago in apparent response to criticism of the Department of Justice’s (“DOJ”) handling of cases related to the nation’s financial crisis, directed DOJ prosecutors to focus on holding individuals accountable through criminal prosecutions. Today, entities embroiled in criminal investigations continue to pay massive fines and plead guilty to criminal charges, but these investigations have led to few individual convictions. In this article, we discuss the differences between white collar corporate and individual prosecutions, explain how establishing individual criminal liability has proven difficult for prosecutors, and conclude that the Yates Memorandum may not materially alter the landscape. Thus, Yates may be remembered more for her letter refusing to enforce the Muslim Ban as unjust, not for the Yates Memorandum.

Related Lawyers: Robert J. Anello, Kostya Lantsman

01.19.17 | Articles

Tax Enforcement, John Doe Summonses And Digital Currency

New York Law Journal

With the advent of virtual currencies, tax enforcement faces a new threat that has the potential of rendering assets effectively untraceable. In tackling the challenge presented by 21st century financial instruments, the IRS has turned to John Doe summonses, which were an integral part of its offshore banking enforcement program. This article discusses the background of John Doe summonses and their potential use in addressing the financial privacy offered by virtual currencies.

Related Lawyers: Jeremy H. Temkin

01.05.17 | Articles

'Salman': Addressing Vagueness In Insider Trading Law

New York Law Journal

The Supreme Court's highly anticipated decision in Salman v. United States proved to be anticlimactic. It essentially restated the law of tipper/tippee liability set out in Dirks v. SEC. In one area, however, the Court broke new ground – its discussion of the persistent charge that judicially fashioned insider trading law is too vague to satisfy the requirements of due process. In our latest article, we describe the vagueness arguments made in Salman, explain the Supreme Court's grounds for rejecting these arguments, and suggest potential limitations to the Court's vagueness analysis.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.22.16 | Articles

Attorneys Beware – Limited Immunity From Defamation Suits

New York Law Journal

When civil litigation turns ugly, it sometimes devolves into allegations of defamation not just between the parties, but against their lawyers as well. In our latest article, we address the parameters of the litigation privilege, and the narrow exceptions that litigants have been able to exploit, as discussed in a pair of recent cases from the U.S. District Court for the Southern District of New York. 

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

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


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