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In Digital Realty Trust, Inc. v. Somers, a 9-0 opinion by Justice Ginsburg issued February 21, 2018, the Supreme Court held that the anti-retaliation provisions of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act do not extend to employees who have reported internally but extend only to employees who have reported suspected securities law violations to the Securities and Exchange Commission. The Supreme Court's decision reversed the Ninth Circuit, and resolved a longtime circuit split. The Fifth Circuit has held that employees must provide information to the SEC while the Ninth and Second Circuits held that reporting internally is enough for employees to qualify for Dodd-Frank Act's anti-retaliation protections. [...]
Sometimes, when it comes to drafting posts for The Insider, a little digging can turn up remarkable results. This week’s post demonstrates the point, as it originates from short news stories that appeared recently in two journals that may not be so well known: Medwatch, based in Copenhagen, and Stat, headquartered in Boston. Both sites cover the pharmaceutical and health care industries, and both deserve considerable appreciation, because what they have uncovered is alarming and even disturbing: in the pharmaceutical industry, despite a recent increase in legal protections, you can still go to prison for posting truthful statements on social media about government-approved prescription medications. [...]
You Can’t Sue the Judge, or Can You? - 02.20.2018
Although judges are sometimes attacked in public comments outside the courtroom, those of us who practice regularly before the courts operate on the assumption that judges are broadly immune from attack within the legal system. In this article, we analyze a recent decision in Zappin v. Cooper by Southern District Judge Katherine Polk Failla, discussing a surprising gap in judicial immunity accorded to New York state judges, and ultimately dismissing the claims against a judge on alternative grounds.
The Trump administration is emphasizing individual rather than corporate liability in white collar investigations and has shifted the focus of criminal law enforcement toward some non-white collar priorities. In this article, we discuss how the move away from corporate criminal liability has been manifest in policy decisions by the Justice Department, highlight the transition of its staff, and discuss whether this shift in priorities is likely to result in a decrease in white collar investigations and prosecutions.
Over the last decade, the government’s pursuit of offshore tax evasion has included criminal cases against taxpayers and their enablers, Deferred Prosecution and Non-Prosecution Agreements with foreign financial institutions, and four Offshore Voluntary Disclosure Programs offered by the IRS. This article discusses an often overlooked fourth prong of the government’s offshore enforcement efforts: the IRS’s imposition of significant civil penalties against taxpayers who were fortunate enough to avoid criminal prosecution. The article also reviews recent cases addressing the IRS’s burden of establishing that a taxpayer’s failure to disclose offshore accounts was willful and the hurdles facing taxpayers and their lawyers seeking to avoid the steep penalties imposed.
Bitcoin Buyers Beware: The IRS Has Your Number - 01.10.2018
As the number and variety of cryptocurrencies on the market continue to grow, so does the scrutiny by government regulators. As noted in my prior post, the Federal Bureau of Investigation, Securities and Exchange Commission, and the Commodities Futures Trading Commission have developed units focused on cyber-threats, as have numerous foreign governments. Most recently, the Internal Revenue Service has joined the mix by investigating the ways in which taxpayers do – and more importantly, do not – report virtual currency transactions. Now Congress has gotten in on the action by amending the tax code to close a loophole that allowed cryptocurrency owners to exchange digital currencies without reporting the transactions on their tax returns. 2018 is likely to be a year of uncertainty for owners of cryptocurrencies, which may account in part for the double digit decline in the value of Bitcoins at the end of December. [...]
The prosecution of corporations remains a contentious issue in white-collar criminal enforcement. In this article, we discuss the DOJ’s new FCPA Corporate Enforcement Policy and District of Massachusetts Judge William Young’s rejection of a corporate guilty plea in the Aegerion Pharmaceuticals case – two developments that highlight the significance of prosecutorial discretion in investigations of corporate misconduct.
Sorting through when, how and to what extent a deponent in civil litigation may invoke the Fifth Amendment presents both substantive and procedural questions. In this article, we discuss the recent decision in Securities and Exchange Commission (SEC) v. Pence in which the court’s particularized analysis of the Fifth Amendment issues, as well as its procedural considerations, provide useful guidance for counsel whose clients seek to invoke or limit the invocation of the privilege in civil litigation.
NEW YORK, December 20, 2017 – Morvillo Abramowitz Grand Iason & Anello PC was featured in a Bloomberg Big Law Business article entitled, “Morvillo Abramowitz Wants You to Know it Wasn’t Recently Acquired by Orrick.” The article discusses Orrick, Herrington & Sutcliffe LLP’s acquisition of white collar litigation boutique Morvillo LLP. Morvillo Abramowitz, which is not merging with Orrick shared this message, “Congratulations to Morvillo LLP from your friends and former colleagues at Morvillo Abramowitz Grand Iason & Anello PC. We wish you well on your merger with Orrick, Herrington & Sutcliffe LLP and have no doubt that the combination will be a success. Your beloved father, our friend and co-founder, Robert G. Morvillo, would be proud.”
To read this article, please click here.
On November 29, 2017, the Supreme Court heard oral argument in Carpenter v. United States, which presents the question of whether the federal government must, under the Fourth Amendment, obtain a warrant before getting historical cell-site location records from cell phone service providers. Broadly speaking, the government argued that it did not need to obtain a warrant because individuals do not have a reasonable expectation of privacy in business records held by third parties (in this case, the cell service providers). Carpenter countered that the warrantless collection of data revealing people’s long-term movements so violates reasonable expectations of privacy that a warrant is required, notwithstanding that the data is possessed by third parties. [...]
NEW YORK, December 18, 2017 – Morvillo Abramowitz has been shortlisted by Benchmark Litigation as a White Collar Crime/Enforcement/Investigations Firm of the Year. Firms who were recognized for this honor have been chosen based on extensive research conducted throughout 2017. All selected firms will be announced at a formal ceremony on Thursday, February 15, 2018 at The Pierre in New York.
To view this recognition, please click here.
Morvillo Abramowitz has been shortlisted by Benchmark Litigation as a White Collar Crime/Enforcement/Investigations Firm of the Year. Firms who were recognized for this honor have been chosen based on extensive research conducted throughout 2017. All selected firms will be announced at a formal ceremony on Thursday, February 15, 2018 at The Pierre in New York.
To view this recognition, please click here.
Mostly lost among the headlines regarding the charges brought by Special Counsel Robert Mueller against former Trump campaign chairman Paul Manafort was the simultaneous release of a court opinion compelling one of Manafort’s own lawyers to testify against him in the grand jury. In this article, we trace the history of the bar’s failed efforts to restrict the authority of federal prosecutors to issue this troubling type of subpoena, and discuss the D.C. district court’s decision affirming that authority in the Manafort case.
Fallout from the unauthorized opening of bank and credit card accounts at Wells Fargo has been immense. Thousands of employees, including the CEO, have lost their jobs, and several long-serving directors were forced to resign. The bank has thus far paid about $185 million in penalties and reportedly has reached and received preliminary approval for a proposed $142 million class-action settlement to compensate customers for accounts opened without their permission. Wells Fargo still faces ongoing investigations by the Department of Justice and Securities and Exchange Commission. [...]
On November 27, 2017, Morvillo Abramowitz partner Robert J. Anello was quoted in a New York Law Journal article entitled, “Convictions Roil Big Law Firms as Partners Seek 'The Good Life.'” The article discusses the trend of notable Big Law partner convictions throughout 2017, and highlights the increasing awareness and greater media coverage of such cases. To read more on this topic and review Bob’s comments, please click here.