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When Misrepresentations During Settlement Conferences Become Sanctionable - 04.16.2019

In this article, we discuss Southern District Magistrate Judge James L. Cott’s recent decision in Otto v. Hearst Communications, addressing the potential for imposition of sanctions based upon misrepresentations during settlement conferences.

Are DOJ’s F/X Prosecutions Ahead of the Law on “Trading Ahead”? - 04.11.2019

Two recent prosecutions in the foreign exchange (F/X) market raise questions about the use of general criminal statutes to regulate a trading practice that Congress, specialized regulators, and market rules have declined to prohibit. Both cases deal with a practice that bankers refer to as pre-positioning, which the government pejoratively labels “trading ahead” or “front running,” in the context of complex, multi-billion dollar F/X trades between sophisticated parties. In this article, we discuss the appeal of the conviction in one such case and the court’s dismissal of the charges in the other.

“Spoofing” as Fraud: A Novel and Untested Theory of Prosecution - 04.02.2019

In the past few years, the government has brought several prosecutions targeting “spoofing” activity in the commodity futures markets, with mixed results at trial. In this article, we survey recent prosecutions in which the government has attempted to prosecute spoofing activity under traditional fraud statutes, including commodities fraud and wire fraud, which requires the government to prove that a defendant made a false statement or a material misrepresentation. To make that showing, the government has argued that spoofing—bidding or offering with the intent to cancel the bid or offer before execution—involves an implied misstatement to the market regarding supply and demand and a defendant’s willingness to trade. In response, defendants (joined by financial industry associations) have forcefully criticized the government’s novel theory as an overly expansive application of the wire-fraud statute. How the federal courts address the applicability of traditional fraud statutes to spoofing-related activity will have significant implications for market participants.

Does the Sixth Amendment Apply to Restitution? Two Justices Say the Answer May Be Yes - 03.15.2019

Beginning with Apprendi v. New Jersey in 2000, the U.S. Supreme Court has extended the Sixth Amendment to the imposition of terms of imprisonment and fines. In recent years, defendants have argued that the reasoning of Apprendi also applies to restitution – a mandatory and increasingly significant aspect of white-collar sentencing. While this argument has failed in the circuit courts, two justices of the Supreme Court, dissenting from a denial of certiorari, recently suggested that the high court should look closely at the issue. In this article, we discuss the brief dissent of Justice Gorsuch, joined by Justice Sotomayor, indicating that the Apprendi doctrine might appropriately be applied to restitution in criminal cases. 

Is the IRS Whistleblower Program Finally Reaching Its Potential? - 03.14.2019

Whistleblowing has become big business, resulting in thousands of submissions each year and generating billions of dollars in recoveries by the IRS. Over the years, however, whistleblowers and their lawyers have lodged several complaints regarding the IRS’s management of the Whistleblower Program. In this article, I discuss the Whistleblower Program, highlight a recent statutory change, which has led to a banner year for awards, and conclude that, in order for the Whistleblower Program to reach its full potential, the IRS could benefit from additional resources to allow it to investigate worthwhile leads on a more timely basis.

Morvillo Abramowitz Partner Brian A. Jacobs Quoted in The Daily Beast - 03.07.2019

On March 7, 2019, Morvillo Abramowitz partner Brian A. Jacobs was quoted in The Daily Beast in an article entitled, “How Sloppy Prosecutors Helped Aaron Schock Walk Free.” The article discusses the public corruption case against former congressman Aaron Schock and the difficulties of prosecuting corruption cases.

To read more on this topic and review Brian’s comments, please click here.

 

From Teapot Dome to Trump: How Congress Investigates Criminal Scandals - 03.06.2019

Since the House passed a resolution in 1792 to investigate the defeat of the United States Army at the hands of American Indians in Ohio (known as St. Clair’s Defeat), Congress has investigated hundreds of instances of possible misconduct by members of the executive branch. Today’s news is rife with reports of congressional investigations into potential obstruction of justice and more serious substantive crimes by President Trump and his immediate circle. Inevitably, the paths of congressional and criminal investigations into this type of misconduct overlap. History shows that this intersection can be fruitful, frustrating, and fraught with pitfalls. [...]

American Bar Association's 33rd Annual National Institute on White Collar Crime - 03.06.2019

On Wednesday, March 6, 2019, partner Jonathan S. Sack will moderate a panel entitled, “International Data Protection Laws and their Impact on White Collar Practitioners” at the American Bar Association’s 33rd Annual National Institute on White Collar Crime. The panel will focus on the increased risks associated with gathering and using personal data, culminating in the adoption by the European Union (EU) of the General Data Protection Regulation (GDPR) The esteemed panelists will discuss the GDPR and the individual laws of each represented country, and their impact on businesses that handle personal data of individuals and on defense of white collar cases. The event will take place in New Orleans at the Hilton New Orleans Riverside.

For more information about this program, please click here.

Morvillo Abramowitz Partner Brian A. Jacobs Receives the Burton Award for Distinguished Legal Writing - 02.25.2019

NEW YORK, February 25, 2019 - Morvillo Abramowitz partner Brian A. Jacobs has been selected as a winner of the Burton Award for Distinguished Legal Writing for his Review of Securities & Commodities Regulation article, “How Institutional Dynamics Have Shaped Insider Trading Law.” Only 30 elite articles were chosen from over 1,000 submissions from the nation’s most prestigious law firms. The winners will be celebrated at a ceremony held on Monday, May 20, 2019, at the Library of Congress in Washington, D.C.

The awards program is designed to reward major achievements in the law, ranging from literary awards to the greatest reform in law. The awards are selected by professors from Yale Law School, Harvard Law School, UC Berkeley School of Law, Stanford Law School and Columbia Law School, among others. The members of the Honorary Board of Directors are Chief Judge Richard Posner (retired), 7th Circuit U.S. Court of Appeals; U.S. Senator John Cornyn; U.S. Senator Robert P. Casey, Jr.; U.S. Senator Mike Crapo; U.S. Senator Michael F. Bennet; Supreme Court Justice Carol Corrigan of California; Yabo Lin, Partner, Sidley Austin LLP; Jane Sullivan Roberts, Partner, Major, Lindsey & Africa; Lisa Rickard, President, U.S. Chamber Institute for Legal Reform; Elissa Lichtenstein, Director, Public Services Division, American Bar Association; Thomas L. Sager, Partner, Ballard Spahr LLP; Les Parrette, Senior Vice President, General Counsel and Compliance Officer, Novelis Inc.; James M. Rishwain, Jr., Chairman Emeritus, Pillsbury Winthrop LLP; Betty Whelchel, Head of Public Policy & Regulatory Affairs, BNP Paribis SA; Stephen R. Mysliwiec, Partner, DLA Piper LLP (US); Leslie T. Thornton, Senior Vice President, General Counsel & Corporate Secretary, WGL Holdings, Inc. and Washington Gas; and Linda Klein, Immediate Past President, American Bar Association.

The Burton Awards, established in 1999, is funded by the Burton Foundation, a non-profit, academic effort devoted to recognizing and rewarding excellence in the legal profession. The Burton Awards honors the finest accomplishments in law, including writing, reform, public service and interest, regulatory innovation, and lifetime achievements in the profession.

Morvillo Abramowitz Partner Brian A. Jacobs Receives the Burton Award for Distinguished Legal Writing - 02.25.2019

Morvillo Abramowitz partner Brian A. Jacobs has been selected as a winner of the Burton Award for Distinguished Legal Writing. Only 30 elite articles were chosen from over 1,000 submissions from the nation’s most prestigious law firms. The winners will be celebrated at a ceremony held on Monday, May 20, 2019, at the Library of Congress in Washington, D.C.

The awards program is designed to reward major achievements in the law, ranging from literary awards to the greatest reform in law. The awards are selected by professors from Yale Law School, Harvard Law School, UC Berkeley School of Law, Stanford Law School and Columbia Law School, among others. The members of the Honorary Board of Directors are Chief Judge Richard Posner (retired), 7th Circuit U.S. Court of Appeals; U.S. Senator John Cornyn; U.S. Senator Robert P. Casey, Jr.; U.S. Senator Mike Crapo; U.S. Senator Michael F. Bennet; Supreme Court Justice Carol Corrigan of California; Yabo Lin, Partner, Sidley Austin LLP; Jane Sullivan Roberts, Partner, Major, Lindsey & Africa; Lisa Rickard, President, U.S. Chamber Institute for Legal Reform; Elissa Lichtenstein, Director, Public Services Division, American Bar Association; Thomas L. Sager, Partner, Ballard Spahr LLP; Les Parrette, Senior Vice President, General Counsel and Compliance Officer, Novelis Inc.; James M. Rishwain, Jr., Chairman Emeritus, Pillsbury Winthrop LLP; Betty Whelchel, Head of Public Policy & Regulatory Affairs, BNP Paribis SA; Stephen R. Mysliwiec, Partner, DLA Piper LLP (US); Leslie T. Thornton, Senior Vice President, General Counsel & Corporate Secretary, WGL Holdings, Inc. and Washington Gas; and Linda Klein, Immediate Past President, American Bar Association.

The Burton Awards, established in 1999, is funded by the Burton Foundation, a non-profit, academic effort devoted to recognizing and rewarding excellence in the legal profession. The Burton Awards honors the finest accomplishments in law, including writing, reform, public service and interest, regulatory innovation, and lifetime achievements in the profession.

Too Rich To Bail? - 02.20.2019

Recently, a federal judge in Brooklyn questioned whether the Bail Reform Act permits “disparate treatment based on wealth,” and denied bail to a high-net worth defendant who proposed a package that included home detention secured by privately-funded guards. In United States v. Boustani, U.S. District Judge William F. Kuntz II rejected the bail package proposed by Jean Boustani, an international businessman at the center of a $2 billion alleged fraud, bribery, and money laundering scheme that the government claims caused “staggering” losses to foreign and American investors and “devastated” the economy of Mozambique. In addition to what courts have called the “private prison” concept, Boustani’s proposed bail package included a $20 million personal recognizance bond secured by $1 million cash, and the surrender of travel documents by Boustani and his wife. [...]

Sanctions Stick Even After Settlement - 02.19.2019

An order imposing sanctions catches the attention of litigants, sometimes even encouraging the parties to settle. When they do, the sanctioned party often will seek to have the sanctions award vacated as part of the settlement. Increasingly, judges are resistant to vacating sanctions orders. In this article, we discuss Southern District Judge Victor Marrero’s recent decision in Rogue Wave Software v. BTI Systems, which highlights the trend away from courts vacating sanctions orders just because the parties’ settlement agreement provides for it, and concludes that going forward, the more egregious the conduct leading to a sanctions order, the less likely it is that a court will vacate it.

Peremptories And Prejudice: The Striking Role Of Employment Status In Jury Selection - 02.15.2019

It is a truth universally acknowledged, that a trial lawyer in possession of limited information about prospective jurors, may exercise strikes based on a juror’s employment status. Criminal prosecutors may strike jurors who are unemployed, in the belief that such jurors may be less socially connected, less accustomed to following rules, less experienced in making serious decisions (such as voting for conviction), and thereby potentially biased against the government and in favor of the defendant. Criminal defense lawyers, meanwhile, may strike jurors who are employed, for the inverse reasons. And in civil cases, as one commentator wrote, “[j]ury consultants consistently report that,” among other things, “long-term, unemployed people . . . tend to favor the plaintiff’s position.” Employment status can be an entirely reasonable reason for a trial lawyer to strike a prospective juror. At the same time, however, employment status can at times be misused by trial lawyers as a pretext to strike a juror when the real reason is the juror’s membership in a so-called cognizable group, such as a racial minority. In order to distinguish between a permissible and impermissible strike, judges should engage in extraordinarily careful fact-finding and analysis, as the stakes for both the lawyers and the parties run high. [...]

White-Collar Enforcement After Two Years of Trump - 02.14.2019

The halfway point of President Trump’s term offers an opportunity to examine and assess the impact of his administration on business-related prosecutions. In this article, we discuss the government’s shift in enforcement priorities, which focus on violent crimes, opioid cases, and most notably, immigration violations. We also highlight the decline not only in the number of traditional white-collar cases brought, but also in the amounts of fines and penalties imposed. Despite these numbers, however, the Trump Justice Department has remained aggressive and creative in its pursuit of individual wrongdoers in certain business-related areas, particularly in international corruption and foreign bribery.

Sixth Annual Forum on False Claims & Qui Tam Enforcement - 01.29.2019

On Tuesday, January 29, 2019, partner Christopher B. Harwood will moderate a panel entitled, “Assessing the Scope of Discovery and Preserving the Right Against Self-Incrimination” at the ACI 6th Annual Forum on False Claims & Qui Tam Enforcement. The forum will focus on the latest enforcement and recovery efforts with special emphasis on FCA activity affecting the following industry sectors: healthcare, life sciences and pharmaceuticals, defense and aerospace, financial services, technology and communications, and for-profit education. The event will take place in Manhattan at the Park Lane Hotel.