Publications

03.16.17 | Articles

Bribery vs. Extortion: The Deductibility of Illegal Payments

New York Law Journal

The line between legitimate business expenses and commercial bribery can be a fine one, and while businessmen who are prosecuted for having crossed that line are rightfully most concerned with the loss of liberty and stigma associated with a criminal conviction, lawyers and accountants representing them need to be mindful of the tax consequences of their clients’ conduct. This article provides a roadmap for lawyers and accountants to consider when evaluating the tax consequences of payments made to obtain business.

Related Lawyers: Jeremy H. Temkin

03.15.17 | Blog Posts

Trump Not Only Victim of Leaks: Courts Are Handcuffed in Responding to FBI Leaks

The Insider: White Collar Defense and Securities Enforcement

The Trump White House feels besieged by near-constant leaks. The divulged inside stories have ranged from the trivial, such as rumors that President Trump enjoys watching the news in his bathrobe, to the more consequential, such as revelations connecting Trump advisers to Russian intelligence. The resulting atmosphere of suspicion culminated in Trump’s tweets earlier this month alleging that former President Obama ordered the “tapping” of then-candidate Trump’s “wires” at Trump Tower during the Presidential election. [...]

Related Lawyers: Robert J. Anello

03.13.17 | Blog Posts

DOJ Announces It Will Extend FCPA “Pilot Program”

The Insider: White Collar Defense and Securities Enforcement

The Department of Justice (“DOJ”), Fraud Section’s guidance for Foreign Corrupt Practices Act (“FCPA”) investigations and prosecutions, commonly referred to as the “Pilot Program,” will remain in place when the one-year pilot period ends on April 5. The extension was announced on March 10, 2017 by Acting Assistant Attorney General Kenneth A. Blanco in a speech at the American Bar Association’s National Institute on White Collar Crime. Blanco explained that when the Pilot Program expires, the DOJ will evaluate its “utility and efficacy” to determine “whether to extend it, and what revisions, if any, we should make to it” and stated that “[t]he program will continue in full force until we reach a final decision on those issues.” [...]

Related Lawyers: Jonathan S. Sack

03.08.17 | Blog Posts

When is a Tweet an Official Act?

The Insider: White Collar Defense and Securities Enforcement

Twitter has come to play a central role in political discourse. Just last week, during a Supreme Court argument in a First Amendment case, Justice Kagan observed that “everybody uses Twitter”:  In addition to “the President,” Justice Kagan explained, “[a]ll 50 governors, all 100 senators, [and] every member of the House has a Twitter account,” which has made Twitter a “crucially important channel of political communication.” [...]

Related Lawyers: Brian A. Jacobs

03.07.17 | Articles

FCPA Enforcement Trends: Will They Continue?

New York Law Journal

In recent months the Department of Justice has announced the resolution of a number of Foreign Corrupt Practices Act investigations. This level of enforcement activity reflects increased resources and attention devoted to foreign bribery allegations in recent years as well as a 2016 DOJ initiative to encourage corporate cooperation and voluntary disclosure. In this article, we discuss DOJ’s FCPA "Pilot Program” and several aspects of recent FCPA resolutions, and we suggest that current enforcement trends may continue in the Trump administration.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.21.17 | Articles

Stricter Standards For Standing

New York Law Journal

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

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

02.17.17 | Articles

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

The Washington Post

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

To view this essay, please click here.

Related Lawyers: Peter Dubrowski

02.13.17 | Blog Posts

Recent Case Law on the Appointment of SEC Administrative Law Judges

The Insider: White Collar Defense and Securities Enforcement

The Securities and Exchange Commission (“SEC”) brings enforcement actions in two ways: by filing a complaint in federal district court, or by filing an administrative action before an SEC administrative court headed by an SEC administrative law judge (“ALJ”). The SEC has discretion over the jurisdiction in which they will bring the action. [...]

Related Lawyers: Lawrence S. Bader

02.07.17 | Articles

SEC's View on Statute of Limitations Faces Another Test

New York Law Journal

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

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

02.03.17 | Blog Posts

Was President Trump’s Decision to Tell Sally Yates “You're Fired” a Retaliatory Employment Action?

The Insider: White Collar Defense and Securities Enforcement

Pursuant to the Whistleblower Protection Enhancement Act (WPEA), signed by President Barack Obama in 2012, U.S. government employees have a statutory right to "blow the whistle" without suffering retaliation. The WPEA protects federal employees who disclose violations of laws, rules, or regulations and mismanagement, except when such disclosures are specifically prohibited by law or required by Executive order to "be kept secret in the interest of national defense or the conduct of foreign affairs." An independent federal agency, the Office of Special Counsel, has the authority to investigate the "prohibited personnel practices" enumerated in the WPEA and also serves as a conduit for evaluating whistleblower disclosures. [...]

Related Lawyers: Catherine M. Foti

01.30.17 | Articles

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

Business Crimes Bulletin

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

Related Lawyers: Robert J. Anello, Kostya Lantsman

01.19.17 | Blog Posts

How Will the New Administration Prosecute Businesses?

The Insider: White Collar Defense and Securities Enforcement

A pervasive sense of uncertainty about America under the President set to be sworn in tomorrow has extended into almost every aspect of life. Perhaps due to his own past and lack of transparency, speculation abounds about potential changes to white-collar prosecution priorities and securities enforcement under a Trump administration. Anticipating what kind of impact a Trump presidency will have on white-collar criminal practice is largely guesswork given the new leader’s tendency towards imprecision. A look at Trump’s statements and actions to date, as well as his appointees, however, may provide some limited insight. [...]

Related Lawyers: Robert J. Anello

01.19.17 | Articles

Tax Enforcement, John Doe Summonses And Digital Currency

New York Law Journal

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

Related Lawyers: Jeremy H. Temkin

01.05.17 | Articles

'Salman': Addressing Vagueness In Insider Trading Law

New York Law Journal

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

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.22.16 | Articles

Attorneys Beware – Limited Immunity From Defamation Suits

New York Law Journal

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

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

12.21.16 | Blog Posts

How the Clinton Email Warrant May Have Violated DOJ Policy

The Insider: White Collar Defense and Securities Enforcement

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

Related Lawyers: Brian A. Jacobs

12.06.16 | Articles

Government Searches: The Trouble With Taint Teams

New York Law Journal

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

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

11.17.16 | Articles

The Ever-Expanding Scope of the IRS Obstruction Statute

New York Law Journal

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

Related Lawyers: Jeremy H. Temkin

11.09.16 | Blog Posts

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

The Insider: White Collar Defense and Securities Enforcement

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

Related Lawyers: Robert J. Anello

11.01.16 | Articles

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

New York Law Journal

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

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack


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