Publications
05.16.13 | Blog Posts
New Justice Department’s FIRREA Cases Against Banks: Holding The Victim Responsible
The Insider: White Collar Defense and Securities Enforcement
The government's ever-evolving response to the United States financial crisis has come full circle, as civil Justice Department Attorneys seek to rely on legislation enacted to protect financial institutions from fraud to sue those very same institutions. Recently, the United States Attorney's Office for the Southern District of New York has initiated a number of law suits under the "obscure" Financial Institutions Reform Recovery Enforcement Act (FIRREA). FIRREA was enacted in 1989 in response to the massive failure of almost half of America's savings and loan institutions. In its 24 year history, the law typically has been used to bring suit against officers and directors of failed institutions. The government now seeks to expand the statute's reach to include the institutions themselves. [...]
Related Lawyers: Robert J. Anello
05.16.13 | Insights & Interviews
Litigation: To the tune of $3 billion, whistleblower claims are on the rise
Inside Counsel
At one time whistleblowers were relatively rare and isolated, and the law did not grant them much protection. But that's not the case anymore. Fulbright & Jaworski's recent litigation trends survey of in-house counsel found that more than 25 percent of companies had faced whistleblower allegations in the past three years.
Whistleblowers employed by defense contractors, pharmaceutical manufacturers and other companies have increasingly taken allegations of violations of law to the government—with striking results. Companies on the receiving end of these allegations have paid billions of dollars in fines and penalties following whistleblowers' cooperation with law enforcement authorities and civil lawsuits. What's more, new laws have granted whistleblowers enhanced protections against retaliation and increased financial incentives to tell the government about suspected violations of law by their employers. [...]
Related Lawyers: Jonathan S. Sack, Ester Murdukhayeva
05.09.13 | Blog Posts
Law Enforcement In The Health Care Industry: What Do New Cases Against Novartis Tell Us?
The Insider: White Collar Defense and Securities Enforcement
In recent years, pharmaceutical companies have faced criminal investigations and charges in regard to alleged off-label marketing of prescription drugs and kickbacks to doctors. For this reason, the filing last month of two civil cases against Novartis was noteworthy and may aid defense lawyers in their efforts to oppose criminal charges being filed against clients in the health care industry. [...]
Related Lawyers: Jonathan S. Sack
05.08.13 | Articles
The IRS, Email Privacy And the Legislative Answer
New York Law Journal
Pursuant to the Electronic Communications Privacy Act of 1986, the government can obtain emails and electronic data stored by third parties like Google, Yahoo! and Facebook. Given the dramatic changes in the way people use technology over the past 27 years, Congress is presently drafting legislation aimed at bringing the rules regulating the government's access to electronic communications into the 21st century. As discussed in this article, this effort is likely to get a boost from publicity surrounding the recent release of internal IRS documents describing the agency's policies regarding how it obtains emails, text messages and other private electronic communications. While the IRS's historical practices appear to have been consistent with those applied by other law enforcement agencies, the public response to the IRS's documents and recent federal court decisions addressing the protection to be accorded emails demonstrate the need for legislative action.
Related Lawyers: Jeremy H. Temkin
05.07.13 | Articles
The 'Civil-izing' of White-Collar Criminal Enforcement
New York Law Journal
In recent congressional testimony, Attorney General Eric Holder acknowledged that prosecutors would hesitate before filing criminal charges against a large financial institution because of the effect on the economy of such a prosecution. This article argues that the Attorney General's comments reflect a shift by DOJ, following the demise of Arthur Andersen, toward settlements with companies that either avoid criminal convictions or seek to mitigate their impact on innocent third parties.
Related Lawyers: Elkan Abramowitz, Jonathan S. Sack
05.01.13 | Blog Posts
Bank Leumi Snafu Jeopardizes DOJ-IRS Offshore Enforcement Initiatives
The Insider: White Collar Defense and Securities Enforcement
Three times over the past four years, the IRS has given taxpayers with undisclosed offshore accounts the opportunity to come clean and avoid prosecution. While the most recent offer – the 2012 Offshore Voluntary Disclosure Program (OVDP) – remains open indefinitely, the IRS's recent decision to disqualify approximately 50 taxpayers who disclosed Bank Leumi accounts could undermine the program's continued success. [...]
Related Lawyers: Jeremy H. Temkin
04.29.13 | Articles
'Concepcion's' Lasting Effects: Class Action Waivers Preempt FINRA Rules
New York Law Journal
In our June 24, 2011, article for NYLJ Outside Counsel, titled "How 'AT&T Mobility' Changes the Course of Securities Class Actions, Arbitrations," we discussed the then-recent U.S. Supreme Court decision in AT&T Mobility v. Concepcion and predicted that Concepcion, which held the Federal Arbitration Act (FAA) preempts state law defenses to contractual class action and arbitration waivers, would likely lead to a conflict between the FAA and long-standing FINRA rules prohibiting member firms from compelling class litigants to arbitrate their disputes. This article discusses an opinion issued by a FINRA Hearing Panel, in the matter of Department of Enforcement v. Charles Schwab & Co., holding that, consistent with Concepcion, the brokerage could not be penalized by FINRA for inserting a class action and arbitration waiver provision into their customer agreements.
Related Lawyers: Catherine M. Foti, David C. Austin
04.23.13 | Blog Posts
Judging The SEC’s Division Of Enforcement With 20/20 Foresight
The Insider: White Collar Defense and Securities Enforcement
I almost feel sorry for Mary Jo White, the Chairman of the SEC, and Andrew Ceresney and George Canellos, soon to be Co-Directors of the SEC’s Division of Enforcement. Four days after Ms. White was sworn in, Gretchen Morgenson of the New York Times was reminding Ms White on page one of the Times' Sunday Business Section that time was running out on the SEC's ability to bring cases based on "questionable practices and disclosures arising from the mortgage bust of 2008." [...]
Related Lawyers: Lawrence S. Bader
04.22.13 | Articles
Clerkships: A Worthwhile Journey, but Only on a Well-Charted Path
New York Law Journal
04.17.13 | Blog Posts
Is The Medium The Message? Netflix’s Decision To Post Material Information On Social Media Channels
The Insider: White Collar Defense and Securities Enforcement
The news is out! There's a buzz in the blogosphere. It's trending on Twitter. The Securities and Exchange Commission has authorized the use of social media channels for the disclosure of material, non-public information. In a Report of Investigation released earlier this month, announcing that its Division of Enforcement determined not to pursue an enforcement action against Netflix, Inc. and its Chief Executive Officer Reed Hastings, the SEC provided guidance regarding how issuers using social media channels to disseminate material non-public information may comply with Regulation FD and the Commission's August 2008 Guidance on the Use of Company Web Sites. [...]
Related Lawyers: Catherine M. Foti
04.16.13 | Articles
Allegations Supporting Diversity Jurisdiction Get Close Scrutiny
New York Law Journal
This article discusses three decisions from the U.S. District Court for the Southern District of New York pertaining to federal diversity jurisdiction. These cases serve as a reminder that the dictates of the diversity statute, 28 U.S.C §1332, may not be as plain as they appear, especially to a judiciary growing skeptical of the continued need for diversity jurisdiction as a protection against local bias by state courts.
Related Lawyers: Edward M. Spiro, Judith L. Mogul
04.10.13 | Blog Posts
A Trend? Another Ruling That Mailing Does Not Support Mail Fraud
The Insider: White Collar Defense and Securities Enforcement
Two decisions do not ordinarily a trend make. But when New York federal judges author two circuit court opinions, issued within approximately three months of each other, dismissing mail fraud claims for failing to satisfy the "mailing" requirement, it is worth noting. [...]
Related Lawyers: Richard F. Albert
04.05.13 | Articles
Competing Approaches to FCPA Enforcement: Recent Cases Diverge
New York Law Journal
Within two weeks of each other, two judges in the SDNY reached different results in two SEC cases alleging violations of the Foreign Corrupt Practices Act. In both cases, the defendant never set foot in the United States. One judge ruled that there was personal jurisdiction over the defendant. The other ruled that there was no personal jurisdiction. A careful reading of the cases leaves the reader at a loss to articulate a guiding principle that should apply to the jurisdictional question raised in both cases.
Related Lawyers: Lawrence S. Bader
04.04.13 | Blog Posts
The Cahill Prosecution In Massachusetts: Vagueness Is Still A Problem After Skilling
The Insider: White Collar Defense and Securities Enforcement
Vagueness is a common problem in white-collar criminal cases. In many instances the line between legal and illegal conduct is blurry at best. This means that someone could face prosecution, a damaged reputation, loss of livelihood and prison time for conduct he or she did not know, and could not reasonably have known, was criminal. [...]
Related Lawyers: Jonathan S. Sack
04.02.13 | Articles
Escaping 'Nixon's' Legacy: the Proper Standard for Rule 17(c) Subpoenas
New York Law Journal
This article discusses the courts' treatment of criminal defendants' document subpoenas to third parties under Rule 17(c) of the Federal Rules of Criminal Procedure. Over the years, the practical utility of these subpoenas has been limited because courts have tended to hold them to the demanding standard that the Supreme Court utilized in United States v. Nixon, even though that standard arose in a different context. The article discusses how in recent decisions, however, courts have properly begun to depart from the rote application of the Nixon standard.
Related Lawyers: Richard F. Albert, Robert J. Anello
03.28.13 | Blog Posts
Restatements Resurrected?: Accounting Fraud By The Numbers
The Insider: White Collar Defense and Securities Enforcement
Several months ago, I raised the question of why the large-scale accounting fraud cases of the type that had been so prevalent in the early 2000s were no longer a staple for either federal prosecutors or the SEC. In so doing, I was not the only one to have noted a dramatic shift away from such cases towards investigations involving Ponzi [...]
Related Lawyers: Stephen M. Juris
03.25.13 | Articles
Labor Law Caught in Constitutional Crisis
New York Law Journal
President Obama and Congressional Republicans are in the midst of a constitutional showdown over the President's recess appointment power. President Obama's appointees to the National Labor Relations Board (NLRB) aggressively expanded the rights of employees and unions throughout 2012. Now in Noel Canning v. NLRB (January 25, 2013), the D.C. Circuit has held that the President's recess appointments to the NLRB are unconstitutional, likely leading to a Supreme Court resolution of this showdown that could drastically change the direction of federal labor law. This article examines the Noel Canning decision and its impact on the NLRB's recent expansion of employee rights.
Related Lawyers: Catherine M. Foti, Curtis B. Leitner
03.20.13 | Blog Posts
ProPublica's "Dollars for Docs": Will The Physician Payments Sunshine Provisions Clear The Haze?
The Insider: White Collar Defense and Securities Enforcement
On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-delayed final rule that is intended to implement the Physician Payments Sunshine provisions that were included in the Patient Protection and Affordable Care Act. Under these provisions, which were passed in March 2010 and were originally due to be implemented in 2012, doctors and teaching hospitals will be required to report the payments that they receive from pharmaceutical and device manufacturers, with the stated goal being to shed light on the financial relationships between physicians and the industry. [...]
Related Lawyers: Robert M. Radick
03.14.13 | Blog Posts
Harvard's Secret E-Mail Search: The Intersection of Internal Investigations and Digital Privacy
The Insider: White Collar Defense and Securities Enforcement
Earlier this week, Harvard University acknowledged the fact that, in the wake of last summer's cheating scandal that rocked the campus, it had secretly searched the e-mail accounts of 16 Resident Deans. The e-mail search was undertaken last August in an effort to determine who had leaked to the media a "confidential" internal e-mail regarding the cheating and also to determine whether any personal student information had been leaked. Harvard did not acknowledge the fact that it had searched the e-mails until this week, seven months after the searches and only after the Boston Globe broke the story. In the days since Harvard’s surreptitious e-mail search became public, the University has fallen under enormous criticism from faculty, administrators and privacy advocates, all of whom feel blindsided and violated by the University's unannounced and undisclosed search of electronic data. But Harvard's approach highlights the interesting and complex issues surrounding the competing concerns companies and institutions have in both conducting thorough internal investigations while, simultaneously, protecting the privacy interests of their employees in the digital age. [...]
Related Lawyers: Benjamin S. Fischer
03.14.13 | Articles
Sentencing for Tax Crimes: Giving Credit for Untaken Deductions
New York Law Journal
In criminal tax cases, the "advisory" Sentencing Guidelines are predicated on an estimate of the "tax loss" resulting from the defendant's conduct. Over the years, the United States Courts of Appeals have split on the issue of whether the "tax loss" computation should be reduced by any deductions the defendant failed to take on his original returns. This article explains the issue, the different approaches taken by the Courts of Appeals and amendments being considered by the Sentencing Commission to address the issue.
Related Lawyers: Jeremy H. Temkin
03.07.13 | Blog Posts
Twists, Turns, PIPEs, And Screws: Insider Trading And Mark Cuban
The Insider: White Collar Defense and Securities Enforcement
On Tuesday, March 5, the SEC’s insider trading case against billionaire Dallas Mavericks owner Mark Cuban took a new twist when a federal district court in Texas declined to end the 2008 civil enforcement action. The SEC alleges that Cuban engaged in insider trading when he sold 600,000 shares of Mamma.com Inc., a company in which he was the largest shareholder, after learning the company intended to offer a private investment in public equity (PIPE). Although the Court characterized the evidence against Cuban as “spotty,” “brief,” and “ambiguous,” it nevertheless concluded that the case should be allowed to proceed to trial because, according to the Court, certain understandings that Cuban would not disclose or trade based upon confidential information he received, may have been “implicit” in the communications between Cuban and company insiders. Unfortunately, the Court’s decision, a self-proclaimed “close” call, further muddies the waters of insider trading law. [...]
Related Lawyers: Robert J. Anello
03.05.13 | Articles
Why So Few Individuals? Government's Prosecution of Corporate Misconduct
New York Law Journal
Courts and commentators have recently questioned why the government has not more aggressively prosecuted individuals when companies have admitted or otherwise settled charges of misconduct. This article suggests that individuals have not been charged not because of timidity on the part of prosecutors but, rather, based on a realistic assessment of the difficulty of proving an individual's guilt - a difficulty that the government itself may be masking by overstating the strength of its case against companies.
Related Lawyers: Elkan Abramowitz, Jonathan S. Sack
02.27.13 | Blog Posts
Required Records, The Act Of Production And Secret Offshore Accounts
The Insider: White Collar Defense and Securities Enforcement
The Fifth Amendment dictates that no person "shall be compelled in any criminal case to be a witness against himself." While most non-lawyers (and many lawyers) might assume that this simple edict means the government cannot force an individual to produce incriminatory documents, the law is far more muddled. And lawyers representing taxpayers with undisclosed offshore accounts are asking the United States Supreme Court to clarify the scope of the privilege against self-incrimination in this important context. [...]
Related Lawyers: Jeremy H. Temkin
02.27.13 | Blog Posts
Supreme Court in Gabelli: Clock Starts Ticking When Fraud Occurs, Not When It's Discovered
The Insider: White Collar Defense and Securities Enforcement
The law requires the SEC to bring enforcement actions seeking penalties against individuals who violate the securities laws within five years. The Supreme Court issued a unanimous ruling today that rejects the SEC’s argument that the five year clock begins to tick when they discover any alleged wrongdoing rather than the date on which the wrongdoing was committed. The author previously has suggested that the application of the SEC’s proposed "fraud discovery rule" by a government agency charged with investigation and enforcement would be counter-productive and effectively would eliminate the five year statute of limitations. To put this into context, [...]
Related Lawyers: Robert J. Anello
02.20.13 | Blog Posts
The Nomination Of Mary Jo White: More Than Just Politics
The Insider: White Collar Defense and Securities Enforcement
The President's nomination of Mary Jo White to become Chairman of the SEC has generated reservations as well as praise. Naysayers wonder whether her years in private practice representing banks and bankers, including J.P. Morgan Chase, Kenneth Lewis of Bank of America andJohn Mack of Morgan Stanley, will make it impossible for her to “switch sides” and hold financial companies accountable for violations of the law. [...]
Related Lawyers: Jonathan S. Sack
02.19.13 | Articles
Saved by Ambiguity: Preliminary Injunction Granted for D&O Coverage
New York Law Journal
Adequate D&O insurance coverage is indispensable protection for corporate executives and directors. However, the conduct of a single covered individual can potentially jeopardize coverage for the entire group of insureds in a way few might have anticipated. This article discusses a Southern District case, XL Specialty Insurance v. Level Global Investors, highlighting this issue.
Related Lawyers: Judith L. Mogul, Edward M. Spiro
02.13.13 | Blog Posts
Down The RICO Rabbit Hole: John Reynolds And The Hospital For Special Surgery
The Insider: White Collar Defense and Securities Enforcement
To state that the federal RICO statue has long since slipped the bounds of Congress’s original intent is hardly a novel observation. Although the U.S. Attorney’s Manual points out that "the purpose of the RICO statute is 'the elimination of the infiltration of organized crime and racketeering into legitimate organizations,'" the very same paragraph of the Manual proclaims that "the statute is sufficiently broad to encompass illegal activities relating to any enterprise affecting interstate or foreign commerce." The varied range of successful federal prosecutions premised on the RICO statute only proves the point, and numerous industries, including health care, have thus come within the statute's reach. [...]
Related Lawyers: Robert M. Radick
02.06.13 | Articles
EMR Adoption May Be Riskier Than Expected
Law360
Though the adoption of Electronic Medical Records (EMRs) was expected to create greater efficiencies and improvement in the quality of medical care, recent assessments of EMRs and their utility have begun to grow darker. This article discussed emerging issues regarding EMRs, and focuses in particular on the increasing concerns about their use as a means to commit health care fraud.
Related Lawyers: Robert M. Radick
02.06.13 | Blog Posts
Lance Armstrong – Rorschach Test
The Insider: White Collar Defense and Securities Enforcement
The criminal justice system – particularly at sentencing – necessarily puts an unflattering light on those who have committed crimes. Prosecutors correctly inform the sentencing court of the bad deeds that resulted in the defendant’s conviction. Probation Officers also traditionally focus on the crime, and ignore (or give short shrift) to the defendant’s good deeds. [...]
Related Lawyers: Lawrence S. Bader
02.05.13 | Articles
The Boundaries of a Seemingly Limitless Mail Fraud Statute
New York Law Journal
The federal mail fraud statute is a broad catch-all criminal law that has been called the prosecutor's 'secret weapon.' It, however, is not without limits. This article discuss the history and jurisprudence of the mail fraud statute, and, in particular, a recent decision by the Ninth Circuit authored by none other than SDNY Judge Jed Rakoff, sitting by designation. In that case, United States v. Phillips, Judge Rakoff, who published a scholarly article on mail fraud before taking the bench, examined the requirement that the mailing be 'for the purpose of executing' the fraudulent scheme.
Related Lawyers: Robert J. Anello, Richard F. Albert
01.30.13 | Blog Posts
Mary Jo White as SEC Chairman
The Insider: White Collar Defense and Securities Enforcement
President Obama's recent naming of Mary Jo White to be Chairman of the SEC has been greeted with praise from almost all quarters. But because she is best known for her highly successful tenure as a federal prosecutor, in response to the news of her current appointment, some have raised questions about, as the New York Times put it, her “command of Wall Street arcana” because “[r]egulatory chiefs are often market experts or academics.” [...]
Related Lawyers: Richard F. Albert
01.25.13 | Articles
Time to Revisit the 'Klein' Conspiracy Doctrine
New York Law Journal
Since the Second Circuit's 1957 decision in United States v Klein, defendants in criminal tax cases have commonly been charged with having conspired to "impede, impair, defeat and obstruct" the Internal Revenue Service in the "ascertainment, evaluation, assessment and collection" of income taxes. While commentators have questioned the statutory authority for the so-called Klein conspiracy, challenges to the charge have rarely gained traction. In late November 2012, however, the Second Circuit decided United States v Coplan in which it recognized "infirmities in the history and deployment" of the conspiracy statute to efforts to impede or obstruct the IRS. This article discusses the Coplan decision, the continuing validity of the Klein doctrine, and the possibility that the Supreme Court will address the issue.
Related Lawyers: Jeremy H. Temkin
01.23.13 | Blog Posts
White Collar Practice In 2013: An Old Look For A New Year?
The Insider: White Collar Defense and Securities Enforcement
2012 was a big year in the government's pursuit of white collar crime. 2013 – the five year anniversary of the financial crisis – brings new legislators, new regulators, and the possibility that a looming statute of limitations may compel authorities to act or forever abandon certain investigations that arose as a result of the economic crisis. Nevertheless, the landscape of white collar enforcement and financial regulation in the coming year is likely to look familiar. [...]
Related Lawyers: Robert J. Anello
February 2013 | Articles
Corporate Criminal Liability: When Is Enough Too Much?
Business Crimes Bulletin
Aggressive prosecutions of corporate misdeeds and complaints by the public that companies and their executives are not being punished enough both are in vogue. This article discusses the evolution of corporate criminal liability in the United States and the manner in which the government typically holds a corporation accountable for employee misconduct. The article concludes that the government's increased reliance on deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) is reasonable given the harshness of judicially-created law deeming corporate entities criminally liable for the acts of even a few wrongdoers.
Related Lawyers: Robert J. Anello
01.16.13 | Blog Posts
It's Time For The SEC To Join The Digital Age: Why The SEC's Attempted Crackdown On The Use Of Social Media Is Misguided
The Insider: White Collar Defense and Securities Enforcement
Early last month, Netflix disclosed the fact that it and its Chief Executive Officer, Reed Hastings, had received “Wells Notices” from the Staff of the Securities and Exchange Commission. Those Wells Notices threatened civil claims and cease and desist proceedings against the company and Mr. Hastings predicated on Mr. Hastings' June 2012 Twitter post touting the fact that Netflix users had streamed more than 1 billion hours of video that month. The SEC believes that Mr. Hastings' post potentially violated SEC Regulation Fair Disclosure (Regulation FD), which requires companies and their representatives to disclose material nonpublic information through the filing of a Form 8-K [...]
Related Lawyers: Benjamin S. Fischer
01.09.13 | Blog Posts
Will The NLRB’s Protection Of Water Cooler Conversations Trump A Company’s Right To Keep Its Investigations Confidential?
The Insider: White Collar Defense and Securities Enforcement
Over the past year, the National Labor Relations Board has issued a series of decisions that have significantly expanded the rights of non-supervisory employees, including non-unionized employees, to discuss information that many employers would consider confidential, and even post this confidential information on social media sites. This expansion includes an employee's right to discuss the content of investigative interviews, even when an employer directs an employee to keep the interview confidential. Although the NLRB has yet to directly opine on the subject, these decisions may have serious implications for the corporate attorney-client privilege. [...]
Related Lawyers: Catherine M. Foti
01.07.13 | Articles
Privacy and Technology: Balancing Competing Interests
New York Law Journal
The law regarding the Fourth Amendment's application to digital evidence continues to evolve as each branch of government tries to keep pace with society's increased reliance on technology, with legislators and the courts working to frame the limits of government access while balancing competing societal privacy expectations. This article looks at circumstances under which the government can obtain digital information.
Related Lawyers: Elkan Abramowitz
12.19.12 | Blog Posts
The Fiscal Cliff And A Call For A Simpler Internal Revenue Code
The Insider: White Collar Defense and Securities Enforcement
President Obama and Speaker Boehner’s discussions aimed at avoiding the fiscal cliff will almost certainly result in the government collecting more taxes: either by increasing the rates paid by upper-income Americans, by closing loopholes that favor the wealthy, or a combination of the two. Both sides of this debate invoke “fairness” in support of their position, but based on the dialogue (or lack thereof) in Washington, it appears that fairness, like beauty, is in the eye of the beholder. [...]
Related Lawyers: Jeremy H. Temkin
12.18.12 | Articles
Whistleblowers: A Dilemma For The Defense
Law360
The Securities and Exchange Commission’s whistleblower bounty program, which has been in effect for just over a year, has prompted a drastic increase in the number of individuals providing information of potential wrongdoing to the SEC. This article discusses the challenges that the prevalence of whistleblowers and the special protections offered to them creates for defense attorneys and the companies they represent.
Related Lawyers: Catherine M. Foti
12.18.12 | Articles
Mediation Confidentiality: Meaningful but Not Absolute
New York Law Journal
Mediation plays an important role in resolving litigation at all levels of complexity yet the promise of confidentiality for mediation materials while broad, is not guaranteed. This article examines the recent Southern District decision in Dandong v. Pinnacle Performance which, guided by the Second Circuit's 2011 opinion in In re Teligent, discusses the extraordinary need a third party must show in order to obtain disclosure of mediation materials.
Related Lawyers: Edward M. Spiro, Judith L. Mogul
12.12.12 | Blog Posts
Is the Current Wave of Insider Trading Cases a Deterrent to Others?
The Insider: White Collar Defense and Securities Enforcement
As sentences in insider trading cases have grown longer, insider trading has continued, apparently at historically high rates, with increasingly longer sentences being meted out. However, the longer sentences do not appear to deter insider trading. What does deter insider trading is the likelihood of getting caught. And the likelihood of getting caught is largely a function of Congressional funding of investigations and prosecutions of white collar crime. [...]
Related Lawyers: Lawrence S. Bader
12.11.12 | Blog Posts
Does Misdemeanor Misbranding Survive Caronia?
The Insider: White Collar Defense and Securities Enforcement
The Court of Appeals for the Second Circuit sent shockwaves through the pharmaceutical industry with its decision in United States v. Caronia. Alfred Caronia was a pharmaceutical sales representative convicted of a misdemeanor conspiracy to introduce a misbranded drug. When promoting Xyrem, a prescription narcolepsy drug, Caronia made comments to a doctor about various uses of the drug that had not been approved by the Food and Drug Administration. The government did not contest at trial the truthfulness of the comments to the doctor. Though it was, and is, lawful and common for doctors to prescribe medication "off-label" [...]
Related Lawyers: Jonathan S. Sack
12.05.12 | Blog Posts
EMRs: The New Health Care Fraud Frontier?
The Insider: White Collar Defense and Securities Enforcement
Whether referred to as electronic medical records, electronic health records, or electronic patient records, there is no doubting the tremendous potential benefits that the digitization of medical data holds for the health care industry and the public at large. EMRs can make a patient’s medical information readily accessible to a range of treating professionals, whether for routine visits or emergencies in which a patient cannot personally provide the critical information practitioners require. EMRs also permit doctors to preserve information [...]
Related Lawyers: Robert M. Radick
12.04.12 | Articles
Rajaratnam, 'Necessity' and the Path for Future Wiretaps
New York Law Journal
Although the "pioneering nature" of the use of wiretaps in the insider trading case of United States v. Rajaratnam has received a great deal of media attention, the statutory prerequisites to wiretapping have received little prior close legal scrutiny in white-collar cases. This article discusses the wiretap law's "necessity" requirement, which is intended to limit the government's use of wiretaps. The article suggests that the Second Circuit use the opportunity presented by Rajaratnam to define this requirement more rigorously than it has in prior decisions.
Related Lawyers: Richard F. Albert, Robert J. Anello
11.21.12 | Blog Posts
The Government's War Against Financial Industry Crimes Continues with a Record-Breaking Insider Trading Case, But It's Still Too Soon to Declare a Winner
The Insider: White Collar Defense and Securities Enforcement
The Department of Justice and Securities Exchange Commission loudly have trumpeted victories achieved in their renewed battle against insider trading and Wall Street malfeasance, repeatedly warning that there are more cases to come. Just yesterday, the United States Attorney for the Southern District of New York announced “the most lucrative insider trading scheme ever charged” against a former portfolio manager of the well-known hedge fund, SAC Capital Advisors. [...]
Related Lawyers: Robert J. Anello
11.16.12 | Blog Posts
First Year Anniversary of the Dodd-Frank Whistleblower Program: Not Much More than Paper
The Insider: White Collar Defense and Securities Enforcement
The Securities Exchange Commission’s Annual Report on the Dodd-Frank Whistleblower Program for Fiscal Year 2012 (the “Report”), released yesterday, reveals a number of things. The SEC has received a lot of tips, complaints, and referrals: A total of 3,001 in fiscal year 2012 with the lowest number (166) in November 2011 and the highest number (313) in May 2012. Those tips, complaints, and referrals came from [...]
Related Lawyers: Catherine M. Foti
11.14.12 | Blog Posts
Accounting Fraud Cases Are Dead. Long Live Accounting Fraud Cases.
The Insider: White Collar Defense and Securities Enforcement
For defense lawyers of a certain vintage, the early 2000s were a veritable golden age for accounting fraud cases. The marquee cases and investigations of the day – Enron, Computer Associates, Xerox, Adelphia, WorldCom, and Royal Ahold, among many others – were big, complex, and resource-intensive. They also were interesting and nuanced. And while many did result in guilty verdicts or onerous SEC settlements, [...]
Related Lawyers: Stephen M. Juris
11.14.12 | Articles
Getting Right With the IRS: The ‘Fresh Start’ Program
New York Law Journal
The Great Recession has severely impacted many Americans, leaving them with overwhelming financial burdens. Beginning in February 2011 the IRS adopted a "Fresh Start" initiative to provide individuals and small businesses with a number of options to mitigate their outstanding tax obligations. This article addresses the IRS's initiative and how it impacts taxpayers and practitioners representing them.
Related Lawyers: Jeremy H. Temkin
11.06.12 | Articles
The Debate About Deferred And Non-Prosecution Agreements
New York Law Journal
In recent years, the Justice Department and other government agencies have increasingly turned to deferred prosecution agreements and non-prosecution agreements as means for combating corporate crime. This article examines the ongoing debate over the efficacy of DPAs and NPAs and the government’s expanding reliance on these agreements.
Related Lawyers: Elkan Abramowitz
10.25.12 | Articles
Forced Waiver of the Corporate Attorney-Client Privilege
Corporate Counsel
This article discusses the growing line of cases allowing individual defendants—largely former corproate officers and directors—to overcome an assertion of the attorney-client privilege by their former companies in order to defend themselves in civil and criminal litigation.
Related Lawyers: Lawrence S. Bader, David C. Austin
10.24.12 | Blog Posts
Financial Institutions: How Much More Will You Have to Spend on Anti-Money Laundering Programs to Avoid Criminal Prosecution?
The Insider: White Collar Defense and Securities Enforcement
The price of doing financial business in the United States has just gone up. The Department of Justice is taking a new tack in its efforts to track and prosecute money laundering that occurs through financial institutions. Rather than focusing on money laundering that results from substantive criminal violations [...]
Related Lawyers: Robert J. Anello
10.17.12 | Articles
Who Would Have Thought? Removal Of Non-Diverse State Law Claims
New York Law Journal
This article discusses the recent decision in Reserve Management v. Willkie Farr & Gallagher, permitting removal of claims traditionally thought to be within the exclusive province of state courts, even in the absence of diversity jurisdiction.
Related Lawyers: Judith L. Mogul, Edward M. Spiro
10.17.12 | Blog Posts
Filing Late Tax Returns: Reducing Penalties and the Risk of Prosecution
The Insider: White Collar Defense and Securities Enforcement
April 15 is commonly viewed as “Tax Day” in the United States, but approximately 11 million taxpayers take advantage of the automatic extension that allows them to file their returns by October 15. While many taxpayers file for this six month extension because of unavoidable delays in obtaining information from third parties, for some taxpayers the decision to “go on extension” [...]
Related Lawyers: Jeremy H. Temkin
10.09.12 | Articles
Analyzing Selective Waiver of Privilege Under New York Law
New York Law Journal
"Selective" waiver of attorney-client privilege and work product protection has been considered extensively by federal courts. In contrast, New York state case law is sparse, even as high-profile investigations of white-collar offenses by state agencies are on the rise, and companies often find themselves in parallel civil litigation in state courts. This article discusses New York state court decisions on selective waiver and contrasts them with federal case law.
Related Lawyers: Jonathan S. Sack, Eric M. Ruben
10.03.12 | Insights & Interviews
The Management of Risk and Compliance: The Board's Role
On Wednesday, October 3, 2012 Morvillo Abramowitz Partners Jeremy H. Temkin and Richard F. Albert, joined by Douglas M. Lankler, Executive Vice President, Chief Compliance and Risk Officer, Pfizer, Inc., took part in a Directors & Boards webinar entitled, "The Management of Risk and Compliance: The Board’s Role." Temkin, Albert and Lankler discussed the risk and compliance responsibilities facing the Board, the elements of a well-designed compliance program, and lessons to learn based on cautionary case studies from recent headline-grabbing breakdowns.
Related Lawyers: Richard F. Albert, Jeremy H. Temkin
10.03.12 | Blog Posts
Insider Trading: What Happens When the Victim Says That There Was No Crime?
The Insider: White Collar Defense and Securities Enforcement
Under the “misappropriation theory” of insider trading, a person violates the securities laws by breaching a fiduciary duty to keep information confidential. But what happens when the entity to whom the fiduciary duty was owed concludes, after the fact, that the person at issue did not violate any fiduciary duty? Can the SEC still sue that person for insider trading? [...]
Related Lawyers: Lawrence S. Bader
10.02.12 | Articles
Justice Department Flexes Muscle In Anti-Money Laundering by Banks
New York Law Journal
Recent money laundering prosecutions illustrate nascent attempts to criminalize regulatory non-compliance by focusing on what the government believes are improper banking procedures or compliance weaknesses. Financial institutions long used to measuring their anti-money laundering program against the norms established by bank regulators will now have to consider whether their programs measure up to Justice Department standards, enforced by the threat of criminal prosecution. This article discusses new trends in anti-money laundering investigations, and what this means for the banking industry and other financial institutions.
Related Lawyers: Robert J. Anello, Richard F. Albert
09.25.12 | Blog Posts
Claims Data and Health Care Fraud: The Controversy Continues
The Insider: White Collar Defense and Securities Enforcement
While there may be truth to the old saying that there are “lies, damn lies, and statistics,” the use of claims data to detect fraud in the health care industry has often been thought to be beyond reproach. Data mining techniques and investigations that stem from billing anomalies have been the bread and butter of the federal government’s Medicare Fraud Strike Force; prosecutions that have arisen from claims data have resulted in significant prison sentences for those convicted of defrauding public health care programs and private insurers; and press releases issued by Department of Justice officials trumpet the importance of claims data [...]
Related Lawyers: Robert M. Radick
09.19.12 | Blog Posts
Would $104 Million IRS Whistleblower Get Stiffed Under Dodd-Frank?
The Insider: White Collar Defense and Securities Enforcement
The recent announcement that the IRS granted a $104 million whistleblower award to convicted former UBS banker Bradley Birkenfeld generated front-page news coverage. Birkenfeld, the U.S.-bred former private banker who provided the government with detailed information regarding a program catering to U.S. taxpayers seeking to hide assets in Swiss accounts, may be correct in proclaiming himself “the most famous whistleblower in the world.” As has been discussed in detail elsewhere, [...]
Related Lawyers: Richard F. Albert
09.13.12 | Articles
Protecting Privileged Communications With a Kovel Accountant
New York Law Journal
Because tax cases frequently turn on complex accounting principles, one of the first steps a defense lawyer takes in any investigation is to retain an accountant to assist in representing the client. In United States v. Kovel, the U.S. Court of Appeals for the Second Circuit held that certain kinds of work done by such an accountant is privileged. As discussed in this article, it is important for counsel to take care to ensure that the accountant's work in fact falls within the Kovel doctrine and that the privilege is not waived.
Related Lawyers: Jeremy H. Temkin
09.05.12 | Blog Posts
Regulatory Enforcement and Criminal Investigations in a World of Limited Resources: Marginal Cases and Missed Opportunities
The Insider: White Collar Defense and Securities Enforcement
Over the past several years, it has become commonplace to hear the general public and pundits alike grouse about the lack of criminal prosecutions or regulatory enforcement proceedings arising out of the financial dislocations of 2007 and 2008. There are many reasonable responses to these complaints, and almost all of them – as representatives of the Department of Justice and SEC emphasized in recent media statements – start with the actual facts and evidence. Not surprisingly, [...]
Related Lawyers: Stephen M. Juris
09.04.12 | Articles
Different Strokes: Interpreting Computer Fraud and Abuse Act
New York Law Journal
Since being enacted in 1984 to address the growing problem of computer hacking, the Computer Fraud and Abuse Act has been used to prosecute a wide variety of behavior, including the violation of a non-compete agreement by a former employee, the leak of classified government materials, and cyber-bullying. This article examines recent court decisions and legislative efforts that seek to clarify the CFAA and its scope.
Related Lawyers: Elkan Abramowitz
08.23.12 | Blog Posts
Insider Trading: Are "Relationships of Trust and Confidence" the Last Line of Defense?
The Insider: White Collar Defense and Securities Enforcement
On Monday, a jury convicted Doug Whitman of insider trading, extending the government’s unbeaten streak in its recent sweeping crackdown on insider trading, which has resulted in more than 75 convictions and guilty pleas. In this recent round of insider trading cases, brought by the United States Attorney’s Office for the Southern District of New York beginning in 2009, juries have rejected practically every defense proffered by defendants. In the case against hedge fund billionaire Raj Rajaratnam, the jury rejected [...]
Related Lawyers: Benjamin S. Fischer
08.21.12 | Articles
Predictive Coding And Judicial Advocacy
New York Law Journal
This article discusses Da Silva Moore v. Publicis Groupe, a case in which the parties are using predictive coding to aid in ediscovery. In a recent decision in that matter, the Magistrate Judge declined to recuse himself notwithstanding his public advocacy of predictive coding. His decision explores the interesting issue of whether a judge’s strongly held and publicly expressed views on an aspect of litigation should be grounds for disqualification.
Related Lawyers: Edward M. Spiro, Judith L. Mogul
08.08.12 | Blog Posts
What Does The Flap Over Romney’s Tax Returns Suggest About Disclosure of His Swiss Account?
The Insider: White Collar Defense and Securities Enforcement
As the “will he or won’t he” controversy continues to swirl around demands that Mitt Romney release multiple years of his federal income tax returns, some commentators have speculated that Governor Romney’s reluctance to produce those returns relates to his Swiss bank account. Some have gone so far as to suggest that Governor Romney may have failed to disclose that account on his original returns and [...]
Related Lawyers: Jeremy H. Temkin
08.07.12 | Articles
Keeping the Indictment Out of the Jury Room
New York Law Journal
A recent Second Circuit decision provides guidance against the practice of providing a copy of the indictment to the jury during deliberations. This article discusses issues presented by "speaking indictments," the court's decision in United States v. Esso, and its guidance, which is particularly apt in white collar cases.
Related Lawyers: Robert J. Anello, Richard F. Albert
August, 2012 | Articles
Clients in Cross-Border Investigations: Considerations Relating to Privilege
Business Crimes Bulletin
Along with the increase in the application of white collar criminal laws of various countries to companies' international operations, multinational corporations facing international investigations have faced a confusing array of laws that govern the confidentiality of communications involving in-house and outside counsel. This article examines the myriad of laws that apply in the United States and abroad and offers strategies to maximize protection of the attorney client privilege.
Related Lawyers: Robert J. Anello
07.12.12 | Articles
New Offshore Voluntary Disclosure Program: a Carrot Without a Stick?
New York Law Journal
The Internal Revenue Service recently touted the success of its 2009 Offshore Voluntary Disclosure Program and 2011 Offshore Voluntary Disclosure Initiative and provided long-awaited guidance regarding its 2012 Offshore Voluntary Disclosure Program. This article discusses both significant aspects of the new guidance and an IRS initiative to bring taxpayers living overseas into compliance with their U.S. tax obligations.
Related Lawyers: Jeremy H. Temkin
07.11.12 | Blog Posts
Some Reflections on Three Recent High Profile Trials: Clemens, Edwards and Gupta
The Insider: White Collar Defense and Securities Enforcement
Drawing conclusions as to precise reasons for the result of any particular trial is notoriously difficult and subjective, even for those who sat through the proceeding in the courtroom. But the coincidental timing of the verdicts in three high profile federal criminal trials – the acquittal of Roger Clemens, the effective acquittal of John Edwards [...]
Related Lawyers: Richard F. Albert
07.03.12 | Articles
‘Brady’ Reform at the Congressional Level
New York Law Journal
Instances of government prosecutorial misconduct related to ‘Brady’ Disclosures in criminal cases have been well documented in the media. This article details recent efforts in Congress to reform the procedures surrounding Brady Disclosure.
Related Lawyers: Elkan Abramowitz
06.27.12 | Blog Posts
Why do people have a negative view of cooperators?
The Insider: White Collar Defense and Securities Enforcement
In the more than 36 years I have practiced criminal defense law, I have had many occasions to represent people who, out of self-interest, chose to cooperate with law enforcement against others in order to avoid criminal prosecution or obtain leniency. Often, the choice to cooperate is a difficult one in which the client weighs [...]
Related Lawyers: Lawrence S. Bader
06.19.12 | Articles
Obtaining Discovery From Foreign Litigants: Competing Views on Comity
New York Law Journal
Foreign litigants in U.S. courts can find themselves caught between broad federal discovery orders and far more restrictive privacy-driven laws of the countries in which they are located. This article discusses two recent cases in which U.S. courts had to balance foreign privacy laws with U.S. discovery requests.
Related Lawyers: Judith L. Mogul, Edward M. Spiro
06.14.12 | Blog Posts
Medicaid Claims Data: Is it Really Health Care Fraud?
The Insider: White Collar Defense and Securities Enforcement
Less than a week ago, in testimony before Congress, a representative of the United States Department of Health and Human Services (“HHS”) offered a strikingly negative assessment of the reliability of data that the government uses to detect fraud in the Medicaid program. As HHS Regional Inspector General Ann Maxwell stated to the House Committee [...]
Related Lawyers: Robert M. Radick
06.05.12 | Articles
Denying Bail To the 'Economically Dangerous'
New York Law Journal
Recent high-profile prosecutions of serial fraudsters like Bernard Madoff have fanned the flames of a debate regarding whether economic danger can be the basis for imposing detention to protect the financial safety of the community. This article discusses two recent district court opinions addressing misbehavior by white collar defendants while released on bail and the implications for defense attorneys.
Related Lawyers: Robert J. Anello, Richard F. Albert
05.30.12 | Blog Posts
The Case for Investing in the IRS Part 2: Combating Identity Theft
The Insider: White Collar Defense and Securities Enforcement
This past weekend’s New York Times cover story describing the dramatic rise in identity thieves targeting the United States Treasury is old news to tax practitioners. In my January 25, 2012 post, I discussed the National Taxpayer Advocate’s lament regarding the IRS’s need for additional funding. While that post focused on the impact underfunding has [...]
Related Lawyers: Jeremy H. Temkin
05.16.12 | Blog Posts
In praise of Legal Aid lawyers (by a white collar criminal defense practitioner)
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Lawrence S. Bader
05.10.12 | Articles
Will FCPA Investigations Lead to Tax Charges?
New York Law Journal
As the recent publicity surrounding the Wal-Mart investigation has demonstrated, the Foreign Corrupt Practices Act is a major law enforcement priority. This article discusses the tax implications of payments made to foreign officials. While there is a risk that such payments may give rise to criminal tax charges, counsel should not assume that all such payments are not deductible.
Related Lawyers: Jeremy H. Temkin
05.02.12 | Blog Posts
Jurors Behaving Badly
The Insider: White Collar Defense and Securities Enforcement
A closely watched white collar criminal case poses an interesting question in a challenging context: just how egregious do a juror’s lies during jury selection have to be in order to warrant a new trial? United States v. Daugerdas is the third and final of a series of criminal prosecutions brought by federal prosecutors against partners [...]
Related Lawyers: Richard F. Albert
05.01.12 | Articles
The Wire: Higher Likelihood Innocent Conversations Are Being Intercepted
New York Law Journal
According to government data, the number of wiretaps authorized by courts has more than doubled in the past decade. The number of individuals interecepted by wiretaps also has increased significantly. Yet, the percentage of authorizations resulting in incriminating evidence and convictions has steadily declined. The inevitable conclusion is that the number of innocent people being wiretapped over the past decade has increased. Despite this trend, federal courts have been inconsistent in their application of federal wiretap law intended to protect the crucial interests at stake.
Related Lawyers: Elkan Abramowitz
04.25.12 | Blog Posts
"Taking the Fifth" Between the Devil and the Deep Blue Sea
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Stephen M. Juris
04.24.12 | Articles
Can Internal Investigations be Kept from Shareholders?
Executive Counsel
Though internal investigations conducted by in-house counsel or an outside law firm are usually protected by attorney-client privelege, shareholders have been permitted to obtain privileged information when a "fiduciary exception" can be established. This article examines the tension between a company's need for confidentiality and shareholders' right of of access as exlempified in a recent case involving the computer giant HP.
Related Lawyers: Jonathan S. Sack
04.23.12 | Articles
In Witness Preparation, Relationships Matter
New York Law Journal
The opportunity to meet with a non-party witness before that witness is deposed can be extremely valuable to a litigant. This article discusses recent cases warning that the substance of such meetings often will be fair game for opposing counsel.
Related Lawyers: Edward M. Spiro, Judith L. Mogul
04.09.12 | Articles
Insider Trading and the World of Private Funds
Investment Week
Since 2008, private investment funds, which may have flown under the radar only a few short years ago, are now finding themselves in the cross-hairs of federal and international regulators. At the International Bar Association's 13th Annual International Conference on Private Investment Funds in London, the private investment community revealed their response to the political and regulator spotlight shining on both hedge funds and private equity funds.
Related Lawyers: Benjamin S. Fischer
04.04.12 | Blog Posts
Tax Day 2012: Does The Government's P.R. Campaign Increase Compliance?
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Jeremy H. Temkin
04.03.12 | Articles
New Federal Sentencing Data: Comparing Chalk and Cheese
New York Law Journal
The recent public release of federal sentencing data on a judge-specific basis has generated significant media attention. This article points out the flaws in some of the analysis of this new development.
Related Lawyers: Robert J. Anello, Richard F. Albert
03.20.12 | Blog Posts
What Does The Current Heightened Regulatory Environment Mean For Private Investment Funds?
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Benjamin S. Fischer
03.15.12 | Articles
The Incredible Shrinking Expectation of Online Privacy
Bloomberg Technology and Law Report
With the ever-expanding use of e-mail, cloud computing, and social networks, vast amounts of private data are increasingly stored online, and thereby entrusted to the custody of third parties. Unfortunately, although our digital footprint has never been more expansive, the legal framework governing the privacy of that information remains sorely outdated, incomplete, and poorly understood. This article provides an overview of the regulatory scheme and reviews recent case law affecting the ability of government and private actors to compel disclosure of e-mail or other electronic user data stored online by entities like Google, Hotmail, Yahoo!, Twitter, Facebook, LinkedIn, or their equivalents.
Related Lawyers: Stephen M. Juris, Jacob W. Mermelstein
03.13.12 | Articles
The Personal Benefit Test in Misappropriation Cases
Law Journal Newsletters Business Crimes Bulletin
Courts apply the personal benefit test in tipping cases brought under the "classical" theory of insider trading. Prosecutors and regulators argue that the test does not apply in misappropriation cases and some courts have agreed. But careful examination of the purpose for the test and the requirements of misappropriation liability suggests that the government's opposition is misguided.
Related Lawyers: Jodi Misher Peikin, James R. Stovall
03.08.12 | Articles
Supreme Court Clarifies Collateral Consequences of Tax Convictions
New York Law Journal
This article discusses the Supreme Court's recent decision in Kawashima v. Holder, which resolved a circuit split and held that a conviction for filing a false tax return is a deportable offense. Kawashima provides important guidance to defense counsel advising their alien clients of the immgration consequences of a tax conviction.
Related Lawyers: Jeremy H. Temkin
03.07.12 | Blog Posts
Policing Dishonest Prosecutors -- The Criminal Justice System's Oxymoron
The Insider: White Collar Defense and Securities Enforcement
Last week, the New York Times ran an editorial entitled “Justice and Open Files.” The gist of the editorial was that prosecutors should provide more and earlier pre-trial discovery to defense lawyers than they currently do in order to make the criminal justice system fairer and more reliable. Discovery in criminal cases traditionally includes all [...]
Related Lawyers: Lawrence S. Bader
03.06.12 | Articles
Passwords, Encrypted Hard Drives, Constitutional Rights and Privileges
New York Law Journal
A recent case from the Eleventh Circuit addresses the intersection of the Fifth Amendment's privilege against self-incrimination and digital evidence. While courts may seek to insure that criminals cannot use encryption techniques to hide digital evidence and defeat otherwise valid subpoenas and warrants, the case examines to what extent a citizen can be expected to cooperate in these efforts through the provision of passwords or decrypted hard drives without waiving his own constitutional protections.
Related Lawyers: Elkan Abramowitz
02.28.12 | Articles
Protecting Copyright Holders And Potential Infringers
New York Law Journal
As use of the Internet grows, so too does the prevalence of cyber torts and related litigation. One of the biggest challenges facing potential plaintiffs in these cases often lies in identifying who the defendants are and where they are located. These determinations present distinct if not unique procedural wrinkles and have become something of a proving ground for new approaches to classic problems. This article discusses two recent cases that explore these interesting and important issues.
Related Lawyers: Edward M. Spiro, Judith L. Mogul
02.21.12 | Blog Posts
Today's Common Investigative Side Effect: Getting Fired By Your Banker
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Richard F. Albert
02.10.12 | Articles
Info Gathering In The Google Age: Notes On The SCA
Law360
Despite the increasing importance of internet communication in today's world, there is no comprehensive federal legislation protecting the privacy of electronic information. The principal federal statute regulating users’ privacy is the Stored Communications Act (“SCA”), a part of the Electronic Communications Privacy Act of 1986, a statutory scheme that has been almost universally criticized as a “dense and confusing” mess. This article explores the deficiencies of the SCA and discusses way to improve it.
Related Lawyers: Stephen M. Juris
02.07.12 | Articles
Jurors Behaving Badly: How Courts Respond
New York Law Journal
Historically, courts have been reluctant to overturn a conviction on the grounds of juror misconduct. This article reviews recent decisions and pending matters helping to define the role of the courts in addressing juror misconduct.
Related Lawyers: Robert J. Anello
02.06.12 | Insights & Interviews
Elkan Abramowitz on Representing Individuals in 'The Trial'
Having built his career as a trial lawyer representing prestigious clients fallen into high stakes personal and professional crises, Elkan Abramowitz still feels he’s at the top of his game. His success as a trial lawyer is legendary and for this he credits rigorous pre-trial preparation as key to handling courtroom tension—and effecting victory.
Related Lawyers: Elkan Abramowitz
01.25.12 | Blog Posts
The Case For Investing in the IRS
The Insider: White Collar Defense and Securities Enforcement
Most American taxpayers would not consider the IRS to be underfunded, let alone the IRS’s need for more resources to be the most serious problem they face. Given the growing “tax gap” (i.e., the amount of all unpaid tax liabilities), however, a persuasive case can be made that the government should invest more [...]
Related Lawyers: Jeremy H. Temkin
01.12.12 | Articles
Another Catch-22 For Swiss Accountholders
New York Law Journal
This article addresses the requirement, set forth in 18 U.S.C. § 3506, that U.S. citizens challenging the government's efforts to obtain evidence abroad provide copies of their foreign filings to the Department of Justice. In light of the government's focus on getting records from Swiss banks, the requirements of section 3506, and the possible sanctions for non-compliance, are important considerations for both clients and defense counsel.
Related Lawyers: Jeremy H. Temkin
01.11.12 | Blog Posts
Offshore Voluntary Disclosure Part III -- Yet Another Last Chance for Taxpayers
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Jeremy H. Temkin
01.10.12 | Articles
Be Careful What You Wish For: How Deferred and Non-Prosecution Agreements Can Be Used in Civil Litigation
Bloomberg Securities Law Report
Criminal investigations of companies are commonly resolved through deferred prosecution or non-prosecution agreements which allow companies to avoid indictment and trial but impose a number of burdens, including a binding admission of wrongdoing. This article reviews the current use and impact of these agreements in parallel civil litigation.
Related Lawyers: Jonathan S. Sack
01.06.12 | Articles
Grand Jury Secrecy: Discretionary Limits
New York Law Journal
On July 29, 2011, a federal district court judge ruled that transcripts of Richard M. Nixon's grand jury testimony related to the Watergate scandal--given with the expectation that it would remain secret--should be released to the public. Since the decision the Justice Department has proposed an amendment to Rule 6(e) of the Federal Rules of Criminal Procedure in an attempt to confine a court's discretion to release secret grand jury materials. This article reviews the law of grand jury secrecy and instances in which a federal court may order the release of grand jury records.
Related Lawyers: Elkan Abramowitz
12.28.11 | Blog Posts
Has the DOJ Been Too Soft on White Collar Crime?
The Insider: White Collar Defense and Securities Enforcement
60 Minutes recently televised an interview with President Obama in which the President was asked to comment on the lack of criminal prosecutions relating to the financial crisis. In an earlier 60 Minutes piece, Lanny Breuer, the Assistant Attorney General for the Criminal Division of the Department of [...]
Related Lawyers: Lawrence S. Bader
12.20.11 | Articles
Southern District Launches Pilot Project for Complex Civil Cases
New York Law Journal
The U.S. District Court for the Southern District of New York launched a pilot project aimed at improving pretrial case management of complex civil cases. This article highlights some of the key aspects of the project, which was designed to address concerns pertaining to costs and delays voiced by clients and members of the bar, and impose some proportionality on the time and resources spent by the courts and parties alike.
Related Lawyers: Judith L. Mogul, Edward M. Spiro
12.13.11 | Blog Posts
Thoughts on the SEC’s Public Response to Judge Rakoff
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Richard F. Albert
12.06.11 | Articles
Media: Defendant’s Friend or Foe?
New York Law Journal
Although the presumption of innocence is one of the bedrocks of our criminal justice system, quite often suspects are tried and condemned in the court of public opinion before even being charged in a court of law. This article discusses how to deal with the media, both tactically and ethically when a client is in the public eye, in order to rebalance a sometimes tilted playing field.
Related Lawyers: Robert J. Anello
11.30.11 | Blog Posts
The Ghosts of Prosecutions Past: Cooperating Defendants and the Ravages of Time
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Stephen M. Juris
11.16.11 | Blog Posts
The SEC Should Focus On Fraud, Not Negligence
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Lawrence Iason
11.10.11 | Articles
Fifth Amendment and Government’s War on Offshore Accounts
New York Law Journal
Under Treasury Department regulations, taxpayers are required to keep records relating to accounts they maintained at foreign financial institutions. Faced with a subpoena for such records, a taxpayer who did not disclose a foreign account on his income tax returns and on FBARs faces a difficult dilemma: producing the records will demonstrate that his previously filed returns were false, while denying that he has the records could subject him to prosecution for failure to keep required records. This article discusses two recent decisions--one out of the Ninth Circuit and one from the United States District Court for the Southern District of Texas--addressing taxpayers' assertion of their rights under the Fifth Amendment in response to such subpoenas.
Related Lawyers: Jeremy H. Temkin
11.09.11 | Blog Posts
Substituting “Moral Equivalence” for Actual Knowledge in Criminal Tax Cases
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Jeremy H. Temkin
11.08.11 | Articles
Computer Fraud And Abuse Act: Finding the Line In the Sand
Law Journal Newsletters
Related Lawyers: Elkan Abramowitz
11.01.11 | Articles
Era of Post-‘Booker’ Sentencing: Whither the Guidelines
New York Law Journal
Related Lawyers: Elkan Abramowitz
10.21.11 | Articles
Insights from US anti-bribery enforcement
The Lawyers Weekly
Related Lawyers: Richard F. Albert
10.21.11 | Articles
How to Conduct Internal Investigations
Executive Counsel
Managing internal investigations is one of the most important responsibilities of in-house counsel. This article offers suggestions for conducting thorough, and cost-effective, investigations.
Related Lawyers: Jonathan S. Sack
10.19.11 | Blog Posts
Trying to Define ‘Fraud” Under Federal Criminal Law
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Lawrence S. Bader
10.18.11 | Articles
Work E-Mail: Clients Beware
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
10.11.11 | Articles
Energy Markets: Enforcement in an Age of Rising Prices
New York Law Journal
This article concerns the increased focus by federal and state regulators on the energy markets, as well as potential competition among regulators in this area.
Related Lawyers: Stephen M. Juris
10.05.11 | Blog Posts
Fools Rush In: The Best Potential Whistleblowers Have the Most to Fear
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Richard F. Albert
10.04.11 | Articles
International Prison Transfer Program
New York Law Journal
Extradition laws are of increasing relevance in white collar practice due to the cross-border nature of most business transactions. A related issue is the transfer of foreign citizens convicted in the United States to their home countries to serve their sentence and the real governmental benefits that attend such transfers. This article details the administration of such transfers in and out of the United States by the Justice Department's International Prison Transfer Unit.
Related Lawyers: Robert J. Anello
09.21.11 | Blog Posts
Janus Capital Group Inc. v. First Derivative Traders and the Law of Unintended Consequences
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Stephen M. Juris
09.08.11 | Blog Posts
The SEC -- A Troubled Agency
The Insider: White Collar Defense and Securities Enforcement
Related Lawyers: Lawrence Iason
09.08.11 | Articles
Dual Prosecution for Tax Offenses: Closing the 'Helmsley Loophole'
New York Law Journal
New York State recently amended its double jeopardy statute, creating the possibility that prosecutors will pursue state tax charges against defendants previously convicted of federal tax offenses. This article discusses the effect of this new statute and the options available to defense counsel once it takes effect.
Related Lawyers: Jeremy H. Temkin
09.06.11 | Articles
‘Brady’ Obligations: Codification and Clarification
New York Law Journal
Related Lawyers: Elkan Abramowitz
08.16.11 | Articles
Consulting With Your Client During Deposition
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
08.02.11 | Articles
Increased Extradition For Business Crime
New York Law Journal
Related Lawyers: Robert J. Anello
08.02.11 | Articles
Asserting The 5th During SEC Investigations
Law360.com
Related Lawyers: Lawrence S. Bader
07.14.11 | Articles
‘Conscious Avoidance’ and Government’s Burden of Proving Willfulness
New York Law Journal
Related Lawyers: Jeremy H. Temkin
07.12.11 | Insights & Interviews
Robert J. Anello Speaks to BloombergLaw on News Corp Hacking Scandal
On Wednesday, July 13, 2011, Robert J. Anello was interviewed by Lee Pacchia of BloombergLaw on the News Corp hacking scandal. Mr. Anello discussed the intricacies of internal investigations, what this event means for others in the media industry, and the possibility of DOJ and SEC investigations.
Related Lawyers: Robert J. Anello
07.11.11 | Articles
How Strong a Nexus Required for Witness Tampering?
New York Law Journal
Related Lawyers: Curtis B. Leitner, Jonathan S. Sack
06.24.11 | Articles
How ‘AT&T Mobility’ Changes the Course Of Securities Class Actions, Arbitrations
New York Law Journal
Related Lawyers: Catherine M. Foti, David C. Austin
06.21.11 | Articles
Clock Ticks On: No ‘American Pipe’ Tolling of Statutes of Repose
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
06.07.11 | Articles
Crossroads Between Grand Jury Subpoenas and Civil Protective Orders
New York Law Journal
Related Lawyers: Robert J. Anello
05.12.11 | Articles
FATCA: New Front in the IRS’s Battle Against Offshore Accounts
New York Law Journal
Related Lawyers: Jeremy H. Temkin
05.03.11 | Articles
‘Brady’ Obligations In the Twenty-First Century
New York Law Journal
Related Lawyers: Elkan Abramowitz
04.19.11 | Articles
Broad Judgment Enforcement In New York Federal Courts
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
04.05.11 | Articles
Statute of Limitations In SEC Enforcement Actions
New York Law Journal
Related Lawyers: Robert J. Anello
03.01.11 | Articles
Search and Seizure of Digital Evidence: Evolving Standards
New York Law Journal
Related Lawyers: Elkan Abramowitz
02.17.11 | Articles
Voluntary Disclosure of Offshore Accounts: Yet Another ‘Last’ Chance
New York Law Journal
This article discusses recently announced plans by the IRS to reopen its Offshore Voluntary Disclosure Program (the "OVDP") giving taxpayers a third "last" chance to come clean with their previously undisclosed offshore accounts.
Related Lawyers: Jeremy H. Temkin
02.15.11 | Articles
Gatekeepers and Critics: Judicial Scrutiny of Arbitration
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
02.14.11 | Articles
Revival of the Responsible Corporate Officer Doctrine
New York Law Journal
Related Lawyers: Robert M. Radick, Jonathan S. Sack
02.01.11 | Articles
Overview of Federal Wiretap Law In White-Collar Cases
New York Law Journal
Related Lawyers: Robert J. Anello
01.13.11 | Articles
IRS Whistleblower Program: Road Map for Dodd-Frank?
New York Law Journal
Related Lawyers: Jeremy H. Temkin
01.04.11 | Articles
Overcriminalization And the Fallout From ‘Skilling’
New York Law Journal
Related Lawyers: Elkan Abramowitz
01.03.11 | Articles
What Goes Up Can Come Down
Business Crimes Bulletin
Related Lawyers: Jodi Misher Peikin, James R. Stovall
2011 | Books & Journals
Civil Practice in the Southern District of New York, 2d. Ed.
West Thomson Reuters 2011
Related Lawyers: Judith L. Mogul, Edward M. Spiro
2011 | Books & Journals
Defending Corporations and Individuals in Government Investigations 2011 ed — Responding to Subpoenas and Other Regulatory Requests
West Thomson Reuters 2011
Related Lawyers: Elkan Abramowitz, Jeremy H. Temkin
12.07.10 | Articles
In International Investigations, All Lawyers Are Not Created Equal
New York Law Journal
Related Lawyers: Robert J. Anello
12.01.10 | Articles
Amendment of Expert Discovery Rules
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
11.29.10 | Insights & Interviews
Robert J. Anello Speaks to CNBC on What Insider Trading Is and Isn't
On Wednesday, November 24, 2010, Robert J. Anello was interviewed on CNBC about the intricacies of determining what insider trading is and what it isn't.
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11.12.10 | Articles
Schedule UTP: Greater Transparency Or Undermining Privilege?
New York Law Journal
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11.08.10 | Articles
Bucking Conventional Wisdom: Disclosing Defense Arguments to the Prosecution Before Trial
Prosecution Notes, New York University School of Law, Center on the Administration of Criminal Law
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11.02.10 | Articles
Prosecutions Arising Out of Troubled Asset Relief Program
New York Law Journal
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10.14.10 | Articles
Whistleblower Laws: Protections for Employees, Risks to Corporations
International Comparative Legal Guide
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10.12.10 | Articles
Internal Investigations: Start Off on the Right Foot
New York Law Journal
Related Lawyers: Jonathan S. Sack
10.07.10 | Articles
SLUSA’s ‘In Connection With’ Rule: How Close Is Close Enough?
New York Law Journal
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10.05.10 | Articles
Alternatives to Honest Services Fraud
New York Law Journal
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09.15.10 | Articles
Civil Liability of Rating Agencies: Past Success, Future Danger?
New York Law Journal
Related Lawyers: Jonathan S. Sack
09.10.10 | Articles
Too Big to Fail: Is Federal Criminal System in Need of Overhaul?
New York Law Journal
Related Lawyers: Elkan Abramowitz
09.09.10 | Articles
Enhancing Sentences in Tax Cases: Whose Trust Is Abused?
New York Law Journal
Related Lawyers: Jeremy H. Temkin
08.05.10 | Articles
U.S. Discovery in Foreign Proceedings: Section 1782 and Chevron in Ecuador
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
08.03.10 | Articles
The Evolving Mystery Of Illegal Insider Trading
New York Law Journal
Related Lawyers: Robert J. Anello
07.09.10 | Articles
Honest Services Fraud: ‘Morris,’ ‘Skilling’ and the Martin Act
New York Law Journal
Related Lawyers: Elkan Abramowitz
07.08.10 | Articles
Greater Clarity for the Economic Substance Doctrine
New York Law Journal
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06.03.10 | Articles
Flexibility Within Limits: Federal Rules Governing Service of Process
New York Law Journal
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06.01.10 | Articles
Terms and Conditions Of Supervised Release
New York Law Journal
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05.04.10 | Articles
The Ever-Expanding Martin Act: Has It Reached Its Limit?
New York Law Journal
Related Lawyers: Elkan Abramowitz
04.06.10 | Articles
Federal RICO Statute: Extraterritorial Reach and Other Recent Issues
New York Law Journal
Related Lawyers: Robert J. Anello
04.01.10 | Articles
Some Nuts and Bolts Of Attorney’s Fees Applications
New York Law Journal
Related Lawyers: Judith L. Mogul, Edward M. Spiro
03.31.10 | Articles
Stays in Parallel Proceedings
Business Crimes Bulletin
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03.11.10 | Articles
Give Me a Break: Deducting Fees, Financial Penalties in Criminal Cases
New York Law Journal
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02.04.10 | Articles
Depositions of Organizations Under Rule 30(b)(6)
New York Law Journal
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02.02.10 | Articles
Renewing Efforts to Enforce ‘Brady v. Maryland’
New York Law journal
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01.14.10 | Articles
Offshore Banking: the End Of the World as We Know It?
New York Law Journal
Related Lawyers: Jeremy H. Temkin
01.05.10 | Articles
Further Developments On Privacy Rights in an Electronic Era
New York Law Journal
Related Lawyers: Elkan Abramowitz
2010 | Books & Journals
Commercial Litigation in N.Y. Courts — Chapter on White Collar Crime
Related Lawyers: Robert J. Anello
12.03.09 | Articles
Can Disqualification Be Avoided?
New York Law Journal
Related Lawyers: Edward M. Spiro, Judith L. Mogul
12.01.09 | Articles
U.S. Supreme Court Term: Cases Affecting White Collar Practitioners
New York Law Journal
Related Lawyers: Robert J. Anello
11.19.09 | Articles
Uncharged Act Evidence In Criminal Tax Cases
New York Law Journal
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11.03.09 | Articles
Personal Attorney-Client Privilege In Internal Investigations
New York Law Journal
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10.21.09 | Articles
Continuing Medical Education: Criminal Risks in Sponsorship
New York Law Journal
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10.06.09 | Articles
Implications of Asserting The Fifth Amendment
New York Law Journal
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10.01.09 | Articles
Preliminary Injunctions In Non-Compete Cases
New York Law Journal
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09.17.09 | Articles
The Next Chapter in ‘Textron’ Over Protection for Work Papers
Related Lawyers: Jeremy H. Temkin
09.01.09 | Articles
Loss Calculation in Sentencing For Securities Fraud Cases
New York Law Journal
Related Lawyers: Elkan Abramowitz
08.06.09 | Articles
Limited Confidentiality Under Protective Orders
New York Law Journal
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08.04.09 | Articles
Supreme Court Review: The 2008-2009 Term
New York Law Journal
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07.16.09 | Articles
Privilege Against Self Incrimination And Income Tax Filings
New York Law Journal
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07.07.09 | Articles
Grand Jury Witness Access To Testimony Transcripts
New York law Journal
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06.04.09 | Articles
The Increasingly Important Venue Transfer Motion
New York Law Journal
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06.02.09 | Articles
Assessing Developments On Criminalization of Legal Advice
New York Law Journal
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05.31.09 | Articles
How to Use and Not Lose Experts in Criminal Cases
Business Crimes Bulletin
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05.14.09 | Articles
One Last Chance For Offshore Account Holders
New York Law Journal
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05.05.09 | Articles
‘Adnarim’ Warnings in Corporate Internal Investigations
New York Law Journal
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04.07.09 | Articles
The Need for ‘Second Chances’ After Suffering a Federal Conviction
New York Law Journal
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04.02.09 | Articles
Invoking the Selection And Compilation Doctrine
New York Law Journal
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03.12.09 | Articles
The IRS Still Wants Your Company’s Workpapers
New York Law Journal
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03.03.09 | Articles
Targeting Law Enforcement To Improve the Economy
New York Law Journal
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02.05.09 | Articles
'The New Black': Meditations on Metadata
New York Law Journal
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02.03.09 | Articles
‘Batson’ Update: Second Circuit Cases Highlight Issues in Making Challenges
New York Law Journal
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01.15.09 | Articles
New IRS Focus Is on the Conduct Of Taxpayers’ Representatives
New York Law Journal
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01.06.09 | Articles
Pretrial Publicity in Criminal Cases: Media Sound Bites, Justice?
New York Law Journal
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2009 | Books & Journals
Knight's Saga: A Court Rejects the SEC's Theory of “Best Execution”
The Review of Securities & Commodities Regulation 2009
Securities traders are obligated to provide “best execution” to their customers. Knight Securities, a public market making firm, settled charges with the SEC alleging a scheme to overcharge its customers on large securities trades. In SEC v. Pasternak and Leighton, the SEC charged two former executives of Knight with overseeing a scheme to overcharge customers and make excessive profits on numerous institutional orders to buy and sell large blocks of stock, thereby failing to provide best execution. In a recent opinion, the district court rejected the SEC’s charges, holding that the SEC had failed to formulate a viable legal theory, much less prove a violation of the securities laws. The ruling not only clarifies issues surrounding “best execution”; it also underscores the difficulty that companies have, in the present environment, of challenging government claims of wrongdoing.
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2009 | Books & Journals
Regulatory Investigations and the Credit Crisis: The Search for Villains
46 Am. Crim. L. Rev. 225
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12.08.08 | Articles
When Is Once Enough? Collateral Estoppel in Criminal Cases
New York Law Journal
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12.04.08 | Articles
N.Y. Attorney-General Probes, Proper Role of Federal Courts
New York Law Journal
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11.20.08 | Articles
The Promise of ‘Booker’: Probationary Tax Sentences
New York Law Journal
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11.04.08 | Articles
Expert Testimony in Criminal Cases
New York Law Journal
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10.07.08 | Articles
Calculating Loss Under the Guidelines
New York Law Journal
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10.02.08 | Articles
Heightened Requirements for Class Certification
New York Law Journal
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09.18.08 | Articles
Criminal Fraud: Second Circuit Aligns With Other Courts
New York Law Journal
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09.06.08 | Articles
Preserving the Corporate Attorney-Client Privilege: Here and Abroad
27 Penn State International Law Review, vol. 27, 291 2008
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09.02.08 | Articles
Justice and Corporate Prosecutions: The Continuing Saga
New York Law Journal
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08.07.08 | Articles
Discovery in Aid of Foreign Proceedings
New York Law Journal
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08.05.08 | Articles
Attorney-Client Privilege in International Investigations
New York Law Journal
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07.17.08 | Articles
The Internal Revenue Service’s Offshore Tax Initiative
New York Law Journal
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07.01.08 | Articles
The U.S. Supreme Court: Money-Laundering Decisions
New York Law Journal
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06.30.08 | Articles
Judicial Roulette: Recusal Motions in Criminal Cases
Business Crimes Bulletin
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06.05.08 | Articles
Procedural Aspects of Challenging Punitive Damages
New York Law Journal
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06.03.08 | Articles
Dangers of Proffering Information to the Government
New York Law Journal
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05.06.08 | Articles
Expansion of Border Searches to Laptops, Electronic Items
New York Law Journal
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04.03.08 | Articles
Constitutional Limitations on Punitive Damages Awards
New York Law Journal
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03.20.08 | Articles
When Prosecution Is Outsourced to the Private Bar
New York Law Journal
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03.19.08 | Articles
‘Boulware’: High Bar Set for Criminal Tax Prosecutions
New York Law Journal
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03.04.08 | Articles
The Rule of Lenity in Sentencing
New York Law Journal
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02.07.08 | Articles
Uses, Limitations, Pitfalls of Routine Discovery Devices
New York Law Journal
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02.05.08 | Articles
Impact of U.S. Prosecutions on Foreign Affairs
New York Law Journal
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01.17.08 | Articles
When Can Feds Charge Tax, Nontax Crimes Together?
New York Law Journal
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01.10.08 | Articles
Thoughts on Federal Plea Bargaining, Trials, Acquittals
New York Law Journal
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01.10.08 | Articles
Defamation, the Internet, and Personal Jurisdiction
New York Law Journal
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2008 | Books & Journals
Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts
29 Berkeley J. Empl. & Lab. L. 269
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2008 | Books & Journals
Rethinking the Narrative on Judicial Deference in Student Speech Cases
83 N.Y.U. L. Rev. 1282
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2008 | Books & Journals
Preserving the Corporate Attorney-Client Privilege: Here and Abroad
27 Penn State International Law Review, Vol. 27, 291 2008
Related Lawyers: Robert J. Anello
12.06.07 | Articles
The Quest for Expansion of Insider Trading Liability
New York Law Journal
Related Lawyers: Robert J. Anello
11.15.07 | Articles
When the IRS Violates Its Own Rules on Criminal Probes
New York Law Journal
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11.06.07 | Articles
Federal Money-Laundering Statutes: Course Correction?
New York Law Journal
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11.05.07 | Articles
Rating Agencies: Civil Liability Past and Future
New York Law Journal
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10.31.07 | Articles
Defendants’ Pretrial Access To Documents In White Collar Prosecutions
Business Crimes Bulletin
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10.05.07 | Articles
‘Stoneridge’: Answered and Unanswered Questions
New York Law Journal
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10.02.07 | Articles
Options Backdating and the Brocade Trial
New York Law Journal
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09.20.07 | Articles
The ‘New and Improved’ Whistleblower Statute
New York Law Journal
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09.04.07 | Articles
Privilege Waivers: The Pendulum Swings
New York Law Journal
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08.02.07 | Articles
The Supreme Court’s Pleading Trilogy
New York Law Journal
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07.19.07 | Articles
Sanctions for Tax Professionals
New York Law Journal
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07.17.07 | Articles
The Internal Revenue Service’s Offshore Tax Initiative
New York Law Journal
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07.03.07 | Articles
Beyond Harmless Error: ‘Trivialty’ of Intrusions
New York Law Journal
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06.07.07 | Articles
Governmental Privileges in the Post-9/11 Era
New York Law Journal
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06.05.07 | Articles
Ancillary Jurisdiction in Criminal Cases
New York Law Journal
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05.16.07 | Articles
Tax Accrual Workpapers May Be Discoverable
New York Law Journal
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05.10.07 | Articles
Scandal: Subprime Meltdown, Securitization Accounting
New York Law Journal
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05.01.07 | Articles
Conscious Avoidance: A Substitute for Actual Knowledge?
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04.05.07 | Articles
Class Action Litigation Reform Update
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04.03.07 | Articles
Outer Limits of Federal Mail, Wire Fraud Prosecutions
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03.15.07 | Articles
Tax Prosecutions: More Jail Time and Penalties
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03.06.07 | Articles
Reasonableness Review After ‘Booker’
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02.06.07 | Articles
Status of Out-of-Court Statements After ‘Crawford’
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02.01.07 | Articles
Anti-Suit Injuctions in Aid of Arbitration
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01.18.07 | Articles
Accountant’s Obligation to Maintain Client Confidences
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01.17.07 | Articles
Disqualification of Counsel After ‘Gonzalez-Lopez’
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01.02.07 | Articles
The Defense of Corporate America: The Year in Review
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01.01.07 | Articles
Penance But No Absolution - The Paradox of Corporate Criminal Liability
Business Crimes Bulletin
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12.14.06 | Articles
Cost-Shifting in Discovery
New York Law Journal
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12.05.06 | Articles
Preserving Your Job While Asserting the Fifth Amendment
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11.16.06 | Articles
Sanctions for Lawyers Who Commit Tax Crimes
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11.07.06 | Articles
The Fourth Amendment in the Age of Computers
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10.05.06 | Articles
2006 Amendments to the Federal Rules of Civil Procedure
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10.03.06 | Articles
Criminalization of Political Processes
New York Law Journal
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09.21.06 | Articles
Indictment of Tax Crimes Under Fraud Statutes
New York Law Journal
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09.05.06 | Articles
Assault on Thompson Memo: KPMG and Beyond
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08.03.06 | Articles
Standing to Bring Derivative Actions
New York Law Journal
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08.01.06 | Articles
Regulation and Prosecution of Hedge Funds
New York Law Journal
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07.19.06 | Articles
Further Restrictions on the Role of Auditors of Public Companies
New York Law Journal
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07.06.06 | Articles
Special Responsibilities: Proposed Changes to Prosecutorial Ethics
New York Law Journal
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06.06.06 | Articles
Fiduciary Duty Not Always Easy to Determine
New York Law Journal
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06.01.06 | Articles
What’s become of ‘Rooker-Feldman’?
New York Law Journal
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05.18.06 | Articles
Sentencing in Criminal Tax Cases Post-‘Booker’
New York Law Journal
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05.02.06 | Articles
Handling Witnesses: The Boundaries of Proper Witness Preparation
New York Law Journal
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04.06.06 | Articles
Removal Jurisdiction—A Continuing Conundrum
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04.05.06 | Articles
Potential Defense Counsel Responses to Consumer Fraud Enforcement
New York Law Journal
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04.04.06 | Articles
‘Graymail’ or the Right Defense?
New York Law Journal
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03.16.06 | Articles
The United States’ Role in Foreign Tax Evasion Cases
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03.07.06 | Articles
Unindicted Co-Conspirators, Due Process, and Government Targets
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02.07.06 | Articles
Use of Unusual Trial Management Procedures by District Courts
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02.02.06 | Articles
Directors and Waiver of the Attorney-Client Privilege
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01.26.06 | Articles
How the IRS Recoups Unpaid Taxes in Criminal Tax Cases
New York Law Journal
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2006 | Books & Journals
Hepatitis C in Prisons: Evolving Toward Decency Through Adequate Medical Care and Public Health Reform
54 UCLA L. Rev. 465
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12.08.05 | Articles
Rule 12(e)—New Life for the Motion for a More-Definite Statement
New York Law Journal
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12.06.05 | Articles
Criminal Contempt Prosecution by Civil Litigants—A Step Too Far?
New York Law Journal
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11.17.05 | Articles
IRS Offers Taxpayers a “Break” in Its Battle Against Tax Shelters
New York Law Journal
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11.01.05 | Articles
Waiver of Corporate Attorney-Client and Work Product Protection
New York Law Journal
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10.04.05 | Articles
Beyond ‘Upjohn’: Necessary Warnings in Internal Investigations
New York Law Journal
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09.14.05 | Articles
Revenge of the Tax Protesters
New York Law Journal
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09.06.05 | Articles
Supreme Court Review: The 2004–2005 Term
New York Law Journal
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08.11.05 | Articles
Personal Jurisdiction and the Internet
New York Law Journal
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08.09.05 | Articles
A Bad Fit—Criminal Forfeiture of Substitute Assets, the Lis Pendens
New York Law Journal
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08.02.05 | Articles
Post-‘Booker’ Sentencing: Not What We Might Have Expected
New York Law Journal
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07.21.05 | Articles
The Supreme Court and Taxes: The 2004-2005 Term
New York Law Journal
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07.04.05 | Articles
The ‘Andersen’ Decision: Its Effects on 18 USC §1519 and Attorneys
New York Law Journal
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06.07.05 | Articles
Criminal-Case Compensation of Fees: Not a Defendant’s Right?
New York Law Journal
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06.02.05 | Articles
‘Daubert’ Update: A Word of Caution to Plaintiffs
New York Law Journal
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05.19.05 | Articles
IRS: Quick, Simultaneous Enforcement Over Long-Time Practices
New York Law Journal
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04.29.05 | Articles
Defense Witness Immunity—Toward a More-Level Playing Field
New York Law Journal
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04.07.05 | Articles
Personal Jurisdiction Over Foreign Co-Conspirators
New York Law Journal
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04.05.05 | Articles
Prosecutorial Limitations in Cross-Border Investigations
New York Law Journal
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03.17.05 | Articles
Recent Second Circuit Tax Cases
New York Law Journal
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03.08.05 | Articles
The Limits of Rule 17(c) Subpoenas
New York Law Journal
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02.03.05 | Articles
Privacy and Protective Orders in High-Profile Litigation
New York Law Journal
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02.01.05 | Articles
State Enforcement: An Interview with Eliot Spitzer
Business Crimes Bulletin
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02.01.05 | Articles
Government Attempts to Shield Its Witnesses From the Defense
New York Law Journal
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01.20.05 | Articles
Tax Shelters and Economic Substance Doctrine Hotly Litigated
New York Law Journal
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01.04.05 | Articles
‘Martindell’ Orders: A Trap for the Unwary?
New York Law Journal
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01.03.05 | Articles
Conflicts Analysis in a New Age
New York Law Journal
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2005 | Books & Journals
Evolving Roles in Federal Sentencing: The Post-Booker/Fanfan World
2005 Fed. Cts. L. Rev.
Related Lawyers: Robert J. Anello, Jodi Misher Peikin
12.20.04 | Articles
Sarbanes-Oxley’s Wake Up Call to Attorneys
Penn State International Law Review
Related Lawyers: Robert J. Anello
12.07.04 | Articles
Corporate Compliance Programs: No Longer Voluntary
New York Law Journal
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12.02.04 | Articles
Recent Class-Certification Decisions
New York Law Journal
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11.18.04 | Articles
Question: Who Pays the Tax on Attorney’s Fees Awards
New York Law Journal
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11.02.04 | Articles
The Confidentiality of Sentencing Submissions
New York Law Journal
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10.14.04 | Articles
Is the Cover-Up Worse Than the Crime?
New York Law Journal
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10.07.04 | Articles
Available Discovery From Non-Parties in Arbitration Proceedings
New York Law Journal
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Fall 2004 | Books & Journals
They Were Shocked, Shocked: The ‘Discovery’ of Analyst Conflicts on Wall Street
70 Brooklyn L. Rev. 98, Fall 2004
Related Lawyers: Barbara Moses
09.16.04 | Articles
Limitations on State Tax Prosecutions
New York Law Journal
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08.05.04 | Articles
Government Litigation and the Deliberative Process Privilege
New York Law Journal
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08.03.04 | Articles
A Few Steps Toward Fairness
New York Law Journal
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07.15.04 | Articles
The Supreme Court’s 2003-2004 Term
New York Law Journal
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07.06.04 | Articles
Perjury by Government Witnesses: Exposed and Punished
New York Law Journal
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July 2004 | Books & Journals
Department of Justice Charging, Plea-Bargaining and Sentencing Policies Under Attorneys General Thornburgh, Reno and Ashcroft
Report of the Federal Bar Council Committee on Second Circuit Courts, July 2004
Related Lawyers: Richard F. Albert
07.01.04 | Articles
Department of Justice Charging, Plea Bargaining and Sentencing Policies
Report of the Federal Bar Council, Committee on Second Circuit Courts
Related Lawyers: Richard F. Albert
06.03.04 | Articles
Recent Developments in Removal Jurisdiction
New York Law Journal
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06.01.04 | Articles
Allowing Use of Proffer Statements at Trial
New York Law Journal
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05.20.04 | Articles
What to Do When IRS Agents Misbehave?
New York Law Journal
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05.04.04 | Articles
The Attorney-Client Privilege in the Age of Public Relations
New York Law Journal
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04.06.04 | Articles
Death of the Crafted Plea Allocution
New York Law Journal
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04.01.04 | Articles
Reduced Protection for Discovery from Attorneys
New York Law Journal
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03.18.04 | Articles
Tax Shelter Enforcement Efforts
New York Law Journal
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03.02.04 | Articles
The Meaning of ‘Property’ Under Federal Mail, Wire Fraud Statutes
New York Law Journal
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02.05.04 | Articles
Spoliation of Evidence: Attorneys Beware
New York Law Journal
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02.03.04 | Articles
Sentencing Guidelines in 2004
New York Law Journal
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01.15.04 | Articles
Second Circuit Tax Cases in 2003
New York Law Journal
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01.06.04 | Articles
Challenging the Feeney Amendment: Judicial, Defense Responses
New York Law Journal
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2004 | Books & Journals
Sarbanes-Oxley’s Wake Up Call to Attorneys
22 Penn State International Law Review, Vol. 4, 545 2004
Related Lawyers: Robert J. Anello
12.04.03 | Articles
New Amendments to the Federal Rules of Civil Procedure
New York Law Journal
Related Lawyers: Edward M. Spiro
12.02.03 | Articles
Mens Rea for Criminal Securities Prosecutions
New York Law Journal
Related Lawyers: Robert J. Anello
11.20.03 | Articles
Federal-State Cooperation in Tax Investigations
New York Law Journal
Related Lawyers: Jeremy H. Temkin
11.04.03 | Articles
Codify Government’s Duty to Disclose Information to the Defense?
New York Law Journal
Related Lawyers: Elkan Abramowitz
10.07.03 | Articles
Joint Defense Agreements, Insider Trading Misappropriation Theory
New York Law Journal
Related Lawyers: Robert J. Anello
10.02.03 | Articles
Private Securities Litigation Reform Act: Litigation Developments
New York Law Journal
Related Lawyers: Edward M. Spiro
09.02.03 | Articles
Issues Ripe for U.S. Supreme Court Review
New York Law Journal
Related Lawyers: Elkan Abramowitz
08.07.03 | Articles
‘Worldcom’: Jurisdiction, Case Management in Complex Litigation
New York Law Journal
Related Lawyers: Edward M. Spiro
07.17.03 | Articles
IRS Steps Up Investigations of Payroll Tax Abuses
New York Law Journal
Related Lawyers: Jeremy H. Temkin
07.01.03 | Articles
The Hyde Amendment: Five Years Later
New York Law Journal
Related Lawyers: Elkan Abramowitz
06.05.03 | Articles
Timing, Lies and Videotape
New York Law Journal
Related Lawyers: Edward M. Spiro
06.03.03 | Articles
Waiver Issues in Corporate Investigations
New York Law Journal
Related Lawyers: Robert J. Anello
05.15.03 | Articles
Tax Opinions by District Courts in the Second Circuit
New York Law Journal
Related Lawyers: Jeremy H. Temkin
05.06.03 | Articles
Re-Examining Experts in the Post-‘Daubert’ Era
New York Law Journal
Related Lawyers: Elkan Abramowitz
04.03.03 | Articles
Springtime: Electronic Case Filing, New Disclosure-Statement Rule
New York Law Journal
Related Lawyers: Edward M. Spiro
04.01.03 | Articles
Securities, Investigations and Prosecutions Under the Martin Act
New York Law Journal
Related Lawyers: Robert J. Anello
03.20.03 | Articles
IRS Misconduct: What Happens When the IRS Cheats at Trial?
New York Law Journal
Related Lawyers: Jeremy H. Temkin
03.04.03 | Articles
Principles of Federal Prosecution of Business Organizations
New York Law Journal
Related Lawyers: Elkan Abramowitz
02.04.03 | Articles
Sentencing Guidelines in 2003: Too Easily Abused
New York Law Journal
Related Lawyers: Robert J. Anello
02.04.03 | Articles
Attorney Client Privilege and Work Product Protection
New York Law Journal
Related Lawyers: Edward M. Spiro
01.16.03 | Articles
The ‘New’ IRS Voluntary Disclosure Policy
New York Law Journal
Related Lawyers: Jeremy H. Temkin
01.07.03 | Articles
Throwing the Book (The Guidelines) at Corporate Criminals
New York Law Journal
Related Lawyers: Elkan Abramowitz
12.03.02 | Articles
Increasing Use of Undercover Stings in White-Collar Investigations
New York Law Journal
Related Lawyers: Robert J. Anello
12.03.02 | Articles
Risk to Confidentiality When Work-Product Is Shown to Auditors?
New York Law Journal
Related Lawyers: Edward M. Spiro
11.21.02 | Articles
Accountants and the Attorney-Client Privilege
New York Law Journal
Related Lawyers: Jeremy H. Temkin
11.05.02 | Articles
Exploring the Contours of the Federal Mail and Wire Fraud Statutes
New York Law Journal
Related Lawyers: Elkan Abramowitz
10.10.02 | Articles
Issues Raised When Rare Techniques Are Used by Prosecutors
New York Law Journal
Related Lawyers: Robert J. Anello
10.03.02 | Articles
Class Certification Withheld: Failure to Show ‘Typicality, Adequacy’
New York Law Journal
Related Lawyers: Edward M. Spiro
09.19.02 | Articles
Second Circuit Tax Cases in 2002
New York Law Journal
Related Lawyers: Jeremy H. Temkin
09.03.02 | Articles
High Court: More Burdens Placed on Defense; Pro-Prosecution?
New York Law Journal
Related Lawyers: Elkan Abramowitz
08.08.02 | Articles
Private Civil RICO Plaintiffs May Seek Injunctive Relief
New York Law Journal
Related Lawyers: Edward M. Spiro
08.06.02 | Articles
Limiting Venue for Business Crime Prosecutions
New York Law Journal
Related Lawyers: Robert J. Anello
07.11.02 | Articles
The Supreme Court’s 2001-2002 Term
New York Law Journal
Related Lawyers: Jeremy H. Temkin
07.02.02 | Articles
Andersen Jury Instruction: A New Collective Corporate Liability?
New York Law Journal
Related Lawyers: Elkan Abramowitz
06.06.02 | Articles
Recent Cases: Attorney Disqualification, ‘Rooker-Feldman’
New York Law Journal
Related Lawyers: Edward M. Spiro
06.04.02 | Articles
Foreign Corrupt Practices Act: An Update
New York Law Journal
Related Lawyers: Robert J. Anello
05.16.02 | Articles
IRS Struggles to Equalize Enforcement Efforts
New York Law Journal
Related Lawyers: Jeremy H. Temkin
2002 | Books & Journals
Power to the Prisoner: The Importance of State Religious Freedom Restoration Acts in Preserving the Religious Liberties of Prisoners
10 J.L. & Pol'y 233 (2002)
Related Lawyers: Benjamin S. Fischer
2001 | Books & Journals
Justice Under Attack: The Federal Government’s Assault on the Attorney-Client Privilege
1 Cardozo Public Law, Policy and Ethics Journal, Vol. 1, 203 2001
Related Lawyers: Robert J. Anello
10.27.99 | Articles
Litigation Stemming From Hiring Decisions: The Defense Perspective
New York Law Journal
Related Lawyers: Barbara Moses
08.01.99 | Books & Journals
Gotham Unbound: How New York City Was Liberated from the Grip of Organized Crime
New York University Press, Aug 1, 1999
Related Lawyers: Robert M. Radick
11.24.97 | Articles
Measures to Prevent Trade Secret Theft
New York Law Journal
Related Lawyers: Barbara Moses
February 1997 | Books & Journals
Securities Litigation Reformed?
Review of Securities & Commodities Regulation, Vol. 29, No. 4, February 1997
Related Lawyers: Barbara Moses
1993 | Books & Journals
Federal Corporate Sentencing: Compliance and Mitigation
Law Journal Seminars Press 1993
Related Lawyers: Jonathan S. Sack
1993 | Books & Journals
Using Expert Testimony to Enhance a White Collar Criminal Defense
American Bar Association, White Collar Crime Institute, 1993
Related Lawyers: Paul R. Grand
1991 | Books & Journals
Corporate Sentencing: A Current Perspective
New York State Bar Association, 1991
Related Lawyers: Elkan Abramowitz
1989 | Books & Journals
RICO 1989 Course Handbook — Vicarious Liability Under Civil RICO
Practicing Law Institute, 1989
Related Lawyers: Richard F. Albert
1989 | Books & Journals
The Government’s Use of RICO in Recent Cases
Practicing Law Institute, Broker Dealer Institute, 1989
Related Lawyers: Paul R. Grand
1979 | Books & Journals
The Constitutionality of Conditions of Pretrial Detention: The Government’s Burden
5 New England Journal on Prison Law, Vol. 2, 1979
Related Lawyers: Robert J. Anello
