Publications

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 | 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

01.19.17 | 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

01.05.17 | 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 | Blog Posts

A Circuit Split Over 1,000 Words

The Insider: White Collar Defense and Securities Enforcement

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

Related Lawyers: Brian A. Jacobs

11.01.16 | Articles

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

New York Law Journal

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

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

10.18.16 | Articles

Cautionary Tales When Communicating With Public Relations Consultants

New York Law Journal

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

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

10.04.16 | Articles

Questionable Extraterritorial Extension of Foreign Corrupt Practices Act

New York Law Journal

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

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

10.03.16 | Blog Posts

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

The Insider: White Collar Defense and Securities Enforcement

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

Related Lawyers: Catherine M. Foti

09.28.16 | Blog Posts

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

The Insider: White Collar Defense and Securities Enforcement

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

Related Lawyers: Robert J. Anello

09.23.16 | Books & Journals

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

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

Click here to read full article.

Related Lawyers: Robert J. Anello, Miriam Glaser

09.15.16 | Articles

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

New York Law Journal

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

Related Lawyers: Jeremy H. Temkin


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