Publications

01.11.17 | Articles

Corporate Guilt and Individual Innocence in Financial Fraud

Business Crimes Bulletin

Partner Robert J. Anello and associate Kostya Lantsman co-authored an article, “Corporate Guilt and Individual Innocence in Financial Fraud,” which appeared in both the December 2016 and January 2017 issues of the Business Crimes Bulletin. This article discusses the paucity of individual white collar prosecutions and explains how establishing individual criminal liability has proven difficult for prosecutors.

Related Lawyers: Robert J. Anello, Kostya Lantsman

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

12.21.16 | Blog Posts

How the Clinton Email Warrant May Have Violated DOJ Policy

The Insider: White Collar Defense and Securities Enforcement

Yesterday at noon, a warrant was unsealed in which a United States Magistrate Judge approved the FBI’s application to search a laptop apparently belonging to Anthony Weiner for any potentially classified emails from Hillary Clinton. Commentators have since raised multiple questions about the warrant, including whether it adequately demonstrated probable cause that Mr. Weiner’s laptop contained evidence of a crime. One question that has not received any attention, however, is whether the DOJ violated its own strict and detailed policy that covers, among other things, search warrants on property belonging to "members of the news media"—a category that surely includes Anthony Weiner, who has worked over the years for multiple news outlets. Had the DOJ followed its own policy, the warrant may never have been approved, or at least may have been delayed until after the election. To the extent the DOJ did not follow its policy, this failure could add substantial fuel to the argument by those who claim that the warrant was a “meritless” attempt by the FBI to influence the 2016 presidential election. [...]

Related Lawyers: Brian A. Jacobs

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

11.09.16 | Blog Posts

Can A President (Trump) Be Prosecuted Based Upon Allegations Of Past Misconduct?

The Insider: White Collar Defense and Securities Enforcement

At long last, it’s November 9, and the nation has an answer to the question of who will serve as its next President. Although this should bring a measure of relief, a feeling of uncertainty remains. What lies ahead for our nation under the leadership of Donald Trump, billionaire reality television star who invented the chant “Lock Her Up”? What happens to unresolved allegations of federal tax liability and sexual assault? Does the theoretical specter of possible indictment and criminal trial or impeachment loom for President-elect Trump? [...]

Related Lawyers: Robert J. Anello

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

11.01.16 | Blog Posts

A Circuit Split Over 1,000 Words

The Insider: White Collar Defense and Securities Enforcement

Two weeks ago, as reported by Howard Bashman at How Appealing, the Second Circuit joined the Seventh, Ninth, and Federal Circuits on an issue that is dividing the Courts of Appeals:  Whether to reduce the word limits for federal appellate briefs by 1,000 words.  In particular, these circuits have all indicated their intention to opt out of a change to the Federal Rules of Appellate Procedure, which otherwise goes into effect on December 1 this year, reducing the word limit for principal briefs on appeal from 14,000 to 13,000 words.  As mundane as this dispute may sound, the fact that these particular circuits—some of the country’s busiest—have gone to the trouble to deviate from the impending rule change in order to continue to allow for longer briefs deserves careful attention for what it may signal. [...]

Related Lawyers: Brian A. Jacobs

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

10.03.16 | Blog Posts

Ethics Advice from Law Firms’ In-House General Counsels Need Not Be Disclosed to Clients

The Insider: White Collar Defense and Securities Enforcement

During the course of representing clients, lawyers often encounter ethical conundrums not easily solved without analyzing the rules governing the practice of law in their jurisdiction. There is a continuum of the means by which lawyers seek such advice. On one end, they confer informally with their partners or co-counsel. On the other end, lawyers retain ethics specialists from outside their firms. In the middle, firms formally designate an “in-house” counsel responsible for advising the firm’s lawyers on ethics and other issues that may create liability for the firm. From the perspective of maintaining privilege over these types of communications, casual conversations are extremely risky. Consulting outside counsel is the safest route, but for financial reasons and for convenience, many lawyers may believe that the best course of action is consulting their firm’s formally designated “in-house” counsel. However, the dangers of this approach were highlighted with the decision by a New York trial judge in December 2014 ordering the disclosure of ethics advice given to three attorneys by their firm’s in-house general counsel. Although that decision has been reversed by the Appellate Division, First Department, a review of both decisions is instructive for attorneys deciding when and how to seek advice on the course of action to take to comply with their ethical obligations. [...]

Related Lawyers: Catherine M. Foti

09.28.16 | Blog Posts

Prosecutions from the Financial Crisis: When Is It Safe to Come Out of the Woods?

The Insider: White Collar Defense and Securities Enforcement

Florian Homm, a German hedge fund manager prosecuted by the United States for wrongdoing in connection with the financial crisis, fled Europe in 2008 under cover of darkness on a private plane with cash stuffed in his underwear. He hid out in South America for five years – the length of the statute of limitations generally applicable to most United States federal criminal cases. When he emerged and trumpeted his return to high society in 2013, believing that the statute of limitations on any possible United States criminal claims against him had run, he was arrested in Italy on U.S. federal fraud charges. [...]

Related Lawyers: Robert J. Anello

09.23.16 | Books & Journals

Fordham Law Review, Volume 85, Issue 1 — A Chapter on White Collar Crime

On September 23, 2016, Fordham Law Review published a special edition, Volume 85, Issue 1, in connection with the U.S. Court of Appeals for the Second Circuit’s 125th Anniversary. In honor of the celebration, Morvillo Abramowitz partner Robert J. Anello and associate Miriam L. Glaser contributed a chapter on white collar crime. Their article addresses six different areas of white collar law and procedure, which showcase the Second Circuit’s role as the nation’s compass in white collar criminal matters.

Click here to read full article.

Related Lawyers: Robert J. Anello, Miriam Glaser

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


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