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Tax Defendants Reaping The Benefit of Booker - 01.21.2021

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that mandatory application of the Sentencing Guidelines was unconstitutional and that judges must consider statutorily mandated factors in deciding an appropriate sentence for each offender. In this article, we analyze recent data from the United States Sentencing Commission demonstrating that judges have become increasingly likely to exercise their discretion to sentence defendants convicted of tax offenses below the applicable Guidelines, but are also more likely to impose some period of incarceration than in the past.  While sentencing advocacy has always been especially important in tax cases, the data reflects the significant impact defense counsel can have on the sentences imposed and the substantial benefits defendants have reaped under Booker

When Does Company Counsel Also Represent a Company Founder? - 01.15.2021

When does counsel for a company also represent a senior executive? This important question has come up recently in the government’s prosecution of Theranos founder Elizabeth Holmes. In this article, we address a dispute between the government and Holmes concerning the admissibility at trial of communications between Holmes and outside company counsel. As we explain, the legal standard makes it difficult for the individual to demonstrate a personal attorney-client relationship with company counsel. 

 

‘Achoo . . . so sue me!’: Criminal Liability for Spreading a Virus - 12.16.2020

Aside from worrying about being sued, individuals who spread the coronavirus also have to be concerned about being prosecuted. Dozens of Americans have been charged with coronavirus-related crimes since the beginning of the pandemic, ranging from people who have intentionally tried to infect others with Covid-19 to people who simply have disobeyed public health orders. Common criminal charges include making a terroristic threat, spreading a communicable disease, assault and battery, reckless endangerment, harassment, and disorderly conduct. [...]

Obtaining Discovery Relating To a Confidential Private Mediation - 12.15.2020

When parties engage in private mediation, they frequently assume that their mediation-related communications are not discoverable in litigation. In fact, while courts generally cloak court-sponsored mediation with a fair degree of confidentiality and permit discovery concerning the mediation only upon a heightened showing of need, there is conflicting caselaw whether the same rule applies to confidential private mediations. In our latest article, we discuss Southern District Judge Jesse M. Furman’s recent decision in Accent Delight International Ltd. v. Sotheby’s, concluding that the heightened standard of need should be applied to confidential private mediations.

IRS-CI’s Annual Report And The State Of Enforcement - 12.10.2020

On November 16, the IRS Criminal Investigation division issued its annual report for the fiscal year ending September 30, 2020, which touts recent achievements and may foreshadow a rise in IRS enforcement. The report highlighted IRS-CI’s noteworthy achievements last year, including identifying over $2.3 billion in tax fraud, which represents an increase of $500 million (almost 28 percent) from fiscal year 2019. The report further noted that IRS-CI had initiated 1,598 investigations and recommended 945 prosecutions, up slightly from the previous year, when it initiated 1,500 investigations and recommended 942 prosecutions, but not quite returning to 2018 levels of 1,714 investigations and 1,050 recommended prosecutions. report noted that IRS-CI now has 2,030 Special Agents. While that represents a modest (1%) increase over the prior fiscal year, it is still below the 2,100 agents in place in May 2019, when IRS-CI was pushing to expand its ranks. [...]

Days Seem Numbered for Circuit’s Controversial Insider Trading Decision - 12.10.2020

Days before Thanksgiving, in a notable about-face, the government agreed that the Supreme Court should vacate a Second Circuit panel’s controversial insider trading decision in United States v. Blaszczak, accepting that Blaszczak’s holding that a government regulatory agency’s confidential information can constitute protectible “property” had been undermined by the Supreme Court’s subsequent decision in the George Washington Bridge case. But vacating Blaszczak would also erase the panel’s more controversial holding that the “personal benefit” test for insider trading does not apply to cases brought under the Title 18 fraud statutes, which would have significantly broadened the reach of criminal insider trading laws. In our article, “Days Seem Numbered for Circuit’s Controversial Insider Trading Decision,” we analyze the defendants’ petitions for Supreme Court review in Blazsczak discuss the implications of the government’s change in position. 

Managing Investigations and Litigation - 11.19.2020

On Thursday, November 19, 2020, Morvillo Abramowitz partner Christopher B. Harwood will take part in a webinar hosted by Gryphon Strategies. The panel entitled, “Managing Investigations and Litigation,” will explore the use of witnesses in affirmative defenses, human intelligence gathering for complex civil litigation, and strategies for aligning litigation and investigation goals. The panel will also discuss how alternative data sets can be leveraged in litigation to identify trends and spot outliers, and the new data sets arising in the Covid-19 era with a majority of the workforce working remotely. 

For more information about this program, please click here.

Anticipating Justice Amy Coney Barrett’s Role in Tax Jurisprudence - 11.19.2020

On October 27, 2020, following a swift yet politically fraught confirmation, Amy Coney Barrett replaced the late Ruth Bader Ginsberg as the ninth sitting justice on the Supreme Court. In her brief tenure on the United States Court of Appeals for the Seventh Circuit, Justice Barrett wrote unanimous opinions in two civil tax cases. In my latest article, I discuss then-Judge Barrett’s decisions in A.F. Moore & Associates, Inc. v. Maria Pappas and VHC, Inc. v. Commissioner of Internal Revenue and conclude that, setting aside questions regarding the timing of Justice Barrett’s appointment and confirmation and concerns as to how she might impact high-profile, politically-charged cases, practitioners can look forward to Justice Barrett’s contributions to the development of tax jurisprudence for many years to come. 

Morvillo Abramowitz Partner Robert J. Anello Quoted in Bloomberg - 11.11.2020

On October 11, 2020, Morvillo Abramowitz partner Robert J. Anello was quoted in Bloomberg in an article entitled, “White-collar crime probes likely to intensify under Biden’s DOJ.” The article discusses the decline in white-collar prosecutions under Trump’s DOJ and restoration of morale in the Justice Department.

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

The Supreme Court Will Interpret Another White-Collar Criminal Statute - 11.10.2020

Federal law prohibits obtaining information by “access[ing] a computer without authorization or exceed[ing] authorized access.” The meaning of the words “exceed[ing] authorized access” has led to a split in the Circuits which will be taken up by the Supreme Court in the present term. In our latest article, we discuss the split in the Circuits and conclude that the Supreme Court may take the opportunity in United States v. Van Buren to clarify how white-collar criminal statutes should be interpreted.

How A Supreme Court Case About The Affordable Care Act Could Change Federal Criminal Law - 11.08.2020

On Tuesday morning, the Supreme Court will hear oral arguments in the latest case challenging the Affordable Care Act (“ACA”), once again placing the Court at the center of a dispute affecting the healthcare of millions of people around the country. The Court’s ultimate decision will be important in its own right, but the case also bears scrutiny because it could potentially have unintended but lasting consequences for federal criminal law as well. [...]

Partner Jeremy H. Temkin Published Criminal Tax Offenses Chapter in Law Journal Press Treatise Entitled, White Collar Crime: Business and Regulatory Offenses - 10.30.2020

NEW YORK, October 30, 2020 - Morvillo Abramowitz partner Jeremy H. Temkin published a chapter entitled Criminal Tax Offenses in the Law Journal Press treatise White Collar Crime: Business and Regulatory Offenses. The chapter discusses considerations for counsel representing clients in criminal tax investigations, including the investigative tools available to the IRS and potential barriers to the IRS’s broad investigative authority. The chapter further addresses strategic matters for counsel representing targets in criminal tax cases, including the IRS’s recently revised Voluntary Disclosure practice, which provides clients who are not yet under investigation an avenue to avoid prosecution. Additionally, the chapter reviews the statutes commonly used to prosecute federal criminal tax offenses in detail, including the applicable statutes of limitations and venue provisions, as well as the methods that prosecutors use to prove that a taxpayer underreported his or her income. Finally, the chapter considers issues relating to sentencing in criminal tax cases, including both the Sentencing Guidelines applicable to tax offenses and the availability of non-Guidelines sentences under 18 U.S.C. § 3553(a). 

To order a copy of White Collar Crime: Business and Regulatory Offenses, please click here.

Morvillo Abramowitz Lawyers Named 2020 New York Super Lawyers and Rising Stars - 10.28.2020

NEW YORK, October 28, 2020 – Morvillo Abramowitz partners have been named 2020 New York Super Lawyers as well as several counsel and associates, who have been distinguished as New York Rising Stars.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations.

Morvillo Abramowitz Lawyers Named 2020 New York Super Lawyers and Rising Stars - 10.28.2020

Morvillo Abramowitz partners have been named 2020 New York Super Lawyers as well as several counsel and associates, who have been distinguished as New York Rising Stars.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations.

Morvillo Abramowitz Selected for The GIR 100 2020 Guide - 10.28.2020

NEW YORK, October 28, 2020 – Morvillo Abramowitz has been selected for The Global Investigations Review 100 2020 guide. Based on extensive research, the annual edition of GIR 100 will highlight leading cross-border investigations practices from around the world, and will be distributed at several premier international conferences.

To view the full list, please click here.