Publications

02.10.16 | Blog Posts

Non-Prosecution Agreements: Reserved for VIPs?

The Insider: White Collar Defense and Securities Enforcement

Should individuals who cooperate with the government in high-profile cases get better deals than individuals who cooperate in cases that do not make the headlines? The rules laid out in the Department of Justice’s U.S. Attorney’s Manual suggest that the answer—at least in the government’s view—is “yes.” [...]

Related Lawyers: Brian A. Jacobs

02.03.16 | Articles

Potential Impact of Supreme Court’s Upcoming Political Quid Pro Quo Case

New York Law Journal

The Supreme Court's grant of certiorari in the highly-publicized case of former Virginia Governor, Robert McDonnell, to examine the contours of a quid pro quo arrangement under federal law will have an impact on more than just federal political corruption prosecutions. A number of other federal criminal statutes, including the Anti-Kickback Enforcement Act and the Foreign Corrupt Practices Act, include a quid pro quo requirement. In this article, we discuss the McDonnell case and its implications.

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

01.26.16 | Articles

Protecting Privileged Documents from the IRS

New York Law Journal

Before executing complicated financial transactions, sophisticated taxpayers frequently seek advice from lawyers and accountants. These professionals will often prepare detailed written analyses of the likely tax consequences of the transactions under consideration, which may be shared with counterparties to the transactions. In auditing tax returns reporting the transactions in question, the Internal Revenue Service may seek copies of the analyses from the counterparties, leaving the taxpayers to argue that sharing the materials did not constitute a waiver of either the attorney-client privilege or work product doctrine. This article discusses two recent decisions by the United States Court of Appeals for the Second Circuit reversing district court decisions rejecting assertions of privilege.

Related Lawyers: Jeremy H. Temkin

01.20.16 | Blog Posts

Mixed Messages When Courts Issue a Stern Warning to Prosecutors

The Insider: White Collar Defense and Securities Enforcement

Much has been written over the past few years about prosecutors’ violations of Brady v. Maryland, the Supreme Court case which held that prosecutors must turn over exculpatory material to the defense in time for the defense to use such material. There is a controversy about whether such Brady violations are an epidemic or an aberration. Often, litigation over Brady violations will focus on whether the violation was deliberate or accidental, although Brady violations occur even when the prosecutor acts in good faith. [...]

Related Lawyers: Lawrence S. Bader

01.15.16 | Blog Posts

LinkedIn for Lawyers: Newly Issued Ethical Guidance Makes Social Media Use Less Risky

The Insider: White Collar Defense and Securities Enforcement

The ethics guidance interpreting "Attorney Advertising" rules in the social media context continues to evolve, but this time the evolution appears to be for the better, taking into account the realities of the growing use of social media. As you may recall, early last year, the New York County Lawyers Association ("NYCLA") weighed in on the ethical implications for lawyers using LinkedIn and suggested that attorneys using the self-proclaimed “World’s Largest Professional Network” needed to beware that their posts on that site, even the most casual, did not run afoul of the attorney advertising rules. Now, however, a recently published Formal Opinion of the Committee on Professional Ethics of the Association of the Bar of the City of New York ("City Bar") has called into question the scope and applicability of the NYCLA opinion, recognizing that use of ethic rules developed for a pre-social media world in a post-social media context may be akin to attempting to fit a square peg into a round hole. As the City Bar acknowledged: the current attorney advertising rules "defy easy extension to the digital world and, in particular, to social media content." The difficulty of applying the rules of ethics to lawyers' social media activities, however, has not stopped lawyers from using social media websites -- particularly LinkedIn -- for professional self-promotion. The new City Bar opinion, however, sets forth a test that might make it easier for attorneys to navigate their responsibilities while continuing to document their achievements, both personal and professional on the internet. [...]

Related Lawyers: Catherine M. Foti

01.13.16 | Blog Posts

Added Penalties for Worker Safety Violations: The Other Yates Memorandum

The Insider: White Collar Defense and Securities Enforcement

In September 2015, Department of Justice Deputy Attorney General Sally Quillian Yates issued a memorandum instructing federal prosecutors to step-up individual prosecutions for corporate wrongdoing. The much-discussed “Yates Memorandum” was issued in response to criticism that federal prosecutors had been lax in prosecuting individual executives for crimes committed during the 2008 financial crisis and has garnered a lot of attention from practitioners and commentators. White-collar lawyers and their corporate clients also should be aware of the “other” Yates Memorandum quietly issued at the end of 2015, announcing that federal prosecutors will look for ways to charge a variety of felonies in routine worker safety cases to take advantage of the greater penalties available under environmental and other criminal laws. [...]

Related Lawyers: Robert J. Anello

01.06.16 | Articles

Deferred Prosecution Agreements in Decline? Enforcement Implications

New York Law Journal

In recent years, the government has relied on deferred prosecution agreements, or DPAs, to resolve many investigations of companies, often without charges being filed against high-level employees. This has led to criticism of the Department of Justice. In this article, we discuss the recent Yates Memorandum, which sets out the Department of Justice’s new policy to hold more individuals responsible for corporate wrongdoing. We explain that the policy could have a significant impact on white-collar enforcement – and possibly lead to excesses associated with prior Department of Justice policies.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.16.15 | Blog Posts

United States v. Bert: The Second Circuit’s Newfound Need for Speed?

The Insider: White Collar Defense and Securities Enforcement

In September 2015, a divided panel of the Second Circuit took the drastic step of ordering the reversal of defendant Raheem Bert’s conviction for firearms offenses and the dismissal of his indictment with prejudice due to an inadvertent violation of the Speedy Trial Act. The panel’s decision, written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall—over a dissent by Circuit Judge Dennis Jacobs—explained this result by referencing the need to vindicate the Speedy Trial Act’s “purpose of expeditiously bringing criminal cases to trial,” and found that “[b]arring reprosecution in this case will have a more positive and substantial impact upon the administration of justice—and most certainly on improved administration of the Speedy Trial Act—than would permitting the prosecution to proceed.” [...]

Related Lawyers: Brian A. Jacobs

12.15.15 | Articles

Employer’s Privilege Trumps Employee’s Advice-of-Counsel Defense

New York Law Journal

This article discusses U.S. District Judge Jesse M. Furman’s decision in United States v. Wells Fargo Bank, which explores the clash of interests between an employee who wishes to invoke an advice-of-counsel defense based on advice rendered by the employer’s attorney, and the employer who controls and is not willing to waiver the attorney-client privilege. In a case of first impression in the Second Circuit, Judge Furman landed squarely on the side of the employer, holding that a corporation cannot be forced to disclose privileged communications, even if those communications would provide a complete defense to one of its employees—at least in the context of a civil dispute.

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

12.10.15 | Blog Posts

Latest International Assault on Attorney-Client Privilege Causes Headaches for Corporations' Lawyers

The Insider: White Collar Defense and Securities Enforcement

When dealing with international investigations, counsel for corporations must navigate a variety of issues relating to the attorney-client privilege. By now, many experienced white-collar lawyers are aware of the vagaries of the rules applicable to in-house counsel (in many European jurisdictions, the privilege does not apply to communications with them), but recent pronouncements by United Kingdom authorities prodding companies to forego the protection of the privilege in connection with internal investigations have introduced a new twist into the mix. The approach to the corporate attorney-client privilege taken in the United Kingdom is symptomatic of a relatively negative view of the privilege articulated by many European regulators and courts. [...]

Related Lawyers: Robert J. Anello

12.02.15 | Articles

'Spoofing'—the New Frontier For Criminal Prosecution?

New York Law Journal

Even without its catchy name, the relatively new crime of “spoofing” would seem to appeal to prosecutors seeking to tap into the populist desire for prison time for perceived financial chicanery and the view that high-speed trading has rigged the markets against regular participants. Not surprisingly, therefore, the conviction last month in United States v. Coscia, the first criminal trial on spoofing charges, has generated a good deal of attention. In this article, we discuss the Coscia trial and what it portends for future prosecutions in the realm of market manipulation.

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

11.19.15 | Articles

The Economic Substance Of Foreign Tax Credits

New York Law Journal

U.S. taxpayers pay taxes on all of their income, regardless of where it is earned. Congress has recognized that this basic principle of the Internal Revenue Code may result in “double taxation” of income earned outside the United States, and the Code provides a dollar-for-dollar credit reducing a taxpayer’s U.S. liabilities by the amount of foreign taxes paid. In recent years, the government has challenged attempts by corporate taxpayers to utilize foreign tax credits generated through complex transactions. This article discusses recent decisions by several Circuit Courts of Appeals addressing arguments that credits should be disallowed under the common law economic substance doctrine.

Related Lawyers: Jeremy H. Temkin

11.04.15 | Articles

Insider Trading After ‘Newman’—What’s Left to Resolve?

New York Law Journal

The Second Circuit’s decision in United States v. Newman reshaped the law of insider trading. Now that the Supreme Court has declined to review Newman, this article explores key issues that Newman left unresolved. We consider recent efforts by defense counsel to capitalize on Newman and other potential arguments based on the rule of lenity and separation of powers. We also address calls for insider trading legislation by two prominent Southern District judges.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

2015 | Books & Journals

Commercial Litigation in New York State Courts — Chapter on White Collar Crime

Partner Robert J. Anello recently authored  “White Collar Crime,” a chapter in the highly regarded treatise Commercial Litigation in New York State Courts, Fourth Edition. The treatise is a joint venture of Thomson Reuters and the New York County Lawyers’ Association and features the work of experts authors, including some of the best commercial litigators in New York.

Related Lawyers: Robert J. Anello

10.22.15 | Blog Posts

Upcoming Federal Sentencing Reform Offers Little Benefit for White Collar Defendants

The Insider: White Collar Defense and Securities Enforcement

Likely to sate the public’s appetite to punish perpetrators of financial crimes, in recent years Congress and the United States Sentencing Commission (USSC) have created a scheme where individuals convicted of white collar crimes serve long sentences and, thereafter, are saddled with a lifetime of disabilities that often are out of proportion to the venality of their conduct or the legitimate goals of our criminal justice system. For years, the length of sentences in white collar cases largely has been determined by the United States Sentencing Guidelines almost-singular focus on “loss” as the key factor in economic crimes, which obscures the myriad other factors that affect a defendant’s true culpability in an individual case and often results in unduly punitive results. In some cases, relatively low-level and ministerial employees faced life sentences in prison because the guidelines did not properly account for their role in the scheme. In others, defendants faced decades-long sentences for activity that was more “farcical than dangerous” simply because the “intended loss” of their “ridiculous” scheme numbered in the billions of dollars. [...]

Related Lawyers: Robert J. Anello

10.21.15 | Articles

2015 Amendments to Federal Rules of Civil Procedure

New York Law Journal

Significant amendments to the Federal Rules of Civil Procedure will take effect on Dec. 1, 2015, absent congressional action. In this article, we discuss these proposed amendments.

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

10.06.15 | Articles

Latest Approach on Prosecuting Individuals for Corporate Misconduct

New York Law Journal

Move over Holder, Thompson, McNulty, and Filip and make room for Yates. Taking its place in the parade of guidelines issued by Department of Justice leadership on the topic of policing corporate malfeasance comes a new entry from Deputy Attorney General Sally Quillian Yates. On Sept. 9, 2015, Yates issued a memorandum titled “Individual Accountability for Corporate Wrongdoing,” setting forth six guidelines for federal prosecutors in all future investigations of corporate wrongdoing. In this article, we discuss the Yates Memorandum and its possible effects on corporate investigations and white-collar practice.

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

09.17.15 | Articles

Below-Guidelines Sentences for Tax Defendants

New York Law Journal

Since the Supreme Court’s decision in United States v. Booker, district judges have had greater discretion in sentencing defendants based on a wide range of factors deemed relevant by Congress. This ability to consider the facts and circumstances of each defendant has resulted in a trend toward below-Guidelines sentences in tax cases generally and especially in cases arising out of undisclosed offshore accounts. This article considers this trend in light of the Seventh Circuit’s recent decision in United States v. Warner, which affirmed a substantial downward variance based, in part, on the defendant’s extraordinary personal background and charitable good works, his attempt to join the IRS’s Offshore Voluntary Disclosure Program, and the sentences imposed on similarly-situated defendants. 

Related Lawyers: Jeremy H. Temkin

09.10.15 | Blog Posts

Second Circuit Rules Dodd-Frank Protects Whistleblowers Who Report Internally

The Insider: White Collar Defense and Securities Enforcement

In a much-anticipated opinion, a divided panel of the Second Circuit Court of Appeals held in Berman v. Neo@Ogilvy LLC, that whistleblowers who report wrongdoing internally, but not to the Securities and Exchange Commission ("SEC"), are protected by the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"). [...]

Related Lawyers: Catherine M. Foti

09.08.15 | Blog Posts

Addressing the SEC’s Administrative “Home Court” Advantage in Enforcement Proceedings

The Insider: White Collar Defense and Securities Enforcement

A recent decision from the Seventh Circuit Court of Appeals highlights the ongoing debate regarding the Securities and Exchange Commission’s continued pursuit of administrative enforcement proceedings for securities violations. In Bebo v. SEC, a panel of the Seventh Circuit held that federal courts do not have jurisdiction to hear claims regarding the constitutionality of the SEC’s administrative hearing process and forum until all administrative remedies have been exhausted. The breadth and number of constitutional challenges raised by individuals subject to the SEC’s administrative process, however, signal that it may be time for the agency or Congress to make some changes. [...]

Related Lawyers: Robert J. Anello


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