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The Stormy Raid of Cohen's Office Strengthens the Attorney-Client Privilege - 04.18.2018

Despite tweets proclaiming the death of the attorney-client privilege, the government’s recent seizure of items from Michael Cohen, Trump’s personal attorney, actually serves to preserve and engender respect for the attorney-client privilege by demonstrating the limits of the privilege. The privilege is just that – a privilege, not a right – and the highly-publicized search of Cohen’s office, home, and hotel room reassures the public that an individual cannot hide behind the attorney-client privilege simply because they place an “Esq.” after their name. Even assuming the privilege applies in this case – which given recent revelations of the nature of the lawyer’s activity is debatable – the crime-fraud exception may well “trump” the privilege. That exception, which applies when a client or the lawyer seeks to use the attorney’s services or advice to commit wrongdoing, prevents the cloak of privilege from concealing communications engaged in for fraudulent or illegal purposes. Contrary to recent partisan declarations, this limit on the privilege, in addition to the procedural and legal safeguards that the government must navigate to seize materials from an attorney, insures public trust in the role of lawyers and the appropriate role of the privilege. If lawyers expect to continue to hold a trusted role in society, the proper contours of the important privilege with which they are entrusted needs to be understood and guarded. The crime-fraud exception prevents the exploitation of the attorney-client privilege, which would undermine the public’s respect for the privilege. [...]

Enforcement of Settlement Agreements – A Case in Point - 04.17.2018

Entering into a settlement agreement does not always mark the end of a litigation. A host of issues may arise in enforcing settlement agreements, as the recent decision in United States v. Prevezon Holdings makes clear. In this article, we discuss Southern District Judge William H. Pauley III’s detailed analysis in Prevezon, which provides valuable insights for counsel negotiating and seeking to enforce settlement agreements.

My Lawyer Said It Was OK: 'Scully' and Defending Based on Reliance on Counsel - 04.03.2018

Good faith reliance on counsel can be a critical line of defense in white-collar prosecutions, but defendants seeking to assert it often face skepticism and procedural hurdles borne of an unduly narrow view of the doctrine. One example is the district court’s ruling in United States v. Scully, and the Second Circuit’s recent opinion reversing that ruling offers useful guidance. In this article, we discuss Scully and other relevant decisions, including case law supporting the so-called “involvement of counsel” defense.

Where Do Search Warrants Come From? - 03.29.2018

On February 27, 2018, the Supreme Court heard oral argument in United States v. Microsoft Corporation. The central issue in the case – which is now likely moot in light of the passage of the CLOUD Act last week – is whether a United States-based provider of email services must disclose, pursuant to a warrant issued under the Stored Communications Act (“SCA”), digital material stored on servers abroad. Beyond this issue, however, the oral argument in Microsoft also touched on a statutory ambiguity relating to data stored here in the United States, the resolution of which could have important implications for federal criminal investigations. […]

Morvillo Abramowitz Partner Brian A. Jacobs Selected for Law360's White Collar Editorial Advisory Board - 03.26.2018

NEW YORK, March 26, 2018 – Morvillo Abramowitz partner Brian A. Jacobs has been selected as a member of Law360's 2018 White Collar Editorial Advisory Board. Brian was selected amongst a small group of legal practitioners. The purpose of the Editorial Advisory Board is to gain insight from experts in the field on how best to shape future coverage. To view the full Editorial Advisory Board, please click here.

Morvillo Abramowitz Partner Brian A. Jacobs Selected for Law360's White Collar Editorial Advisory Board - 03.26.2018

Morvillo Abramowitz partner Brian A. Jacobs has been selected as a member of Law360's 2018 White Collar Editorial Advisory Board. Brian was selected amongst a small group of legal practitioners. The purpose of the Editorial Advisory Board is to gain insight from experts in the field on how best to shape future coverage. To view the full Editorial Advisory Board, please click here.

Different Results for Citigroup and Wells Fargo Derivative Claims - 03.22.2018

Following a spate of regulatory investigations and settlements, a shareholder derivative action was filed against Citigroup’s directors and officers, claiming that they had failed to meet their obligation to “oversee company employees’ compliance with law” under the landmark In re Caremark International Inc. Derivative Litigation decision. At first blush, the case deals with issues very similar to those considered in a separate shareholder derivative suit against Wells Fargo & Company, in which a federal district court in May and October 2017 denied motions to dismiss and permitted discovery to proceed – the subject of a separate blog post. However, in the Citigroup case (Oklahoma Firefighters Pension & Retirement System v. Corbat et al.), the Delaware Chancery Court granted the defendants’ motion to dismiss and then denied a plaintiff motion to reopen the case. It is instructive to consider the Chancery Court’s analysis in the Citigroup case and to contrast the allegations there with the issues in the Wells Fargo case. […]

'Menendez' Decision Clarifies Issues in Public Corruption Cases - 03.21.2018

Attention has shifted in recent years from prosecutions of insider trading to high-profile charges of public corruption. In this article, we discuss Senior District Judge William H. Walls’s dismissal of campaign finance related counts in United States v. Menendez, followed by dismissal of the remaining counts at the government’s request. Judge Walls’s thoughtful analysis provides useful guidance to prosecutors and defense counsel in future public corruption cases.

Deterrence in an Age of Dwindling Enforcement - 03.15.2018

The Tax Division of the Department of Justice has long sought to maximize the impact of criminal prosecutions by focusing its limited resources on a small number of high-profile offenders in the hopes that publicity regarding such prosecutions will lead others to comply with their tax obligations. As a logical extension of this principle, it is commonly accepted that general deterrence is a significant consideration in sentencing convicted tax offenders. In this article, we discuss how the recent reductions in the Internal Revenue Service’s enforcement budget has negatively affected the number of tax investigations and prosecutions, heightening questions regarding the fairness of ratcheting sentences of convicted tax offenders even higher to offset the loss of deterrence resulting from reduced enforcement activity.

Morvillo Abramowitz Partner Elkan Abramowitz Quoted in The Atlantic - 03.15.2018

On March 15, 2018, Morvillo Abramowitz partner Elkan Abramowitz was quoted in an Atlantic article entitled, “What Is Robert Mueller Looking For?” The article discusses the recent news that Special Counsel Robert Mueller, who is investigating whether the Trump campaign assisted Russian operation to swing the 2016 election to the president, had issued a subpoena for the Trump Organization’s records. To read more on this topic and review Elkan’s comments, please click here.

Prosecuting Corporations: NOT High on Administration’s To Do List - 03.08.2018

After a year of conjecture about the Trump administration’s approach to white-collar crime, the Justice Department has reinforced speculation of a relatively hands-off approach to corporate prosecutions. While asserting that it will hold individuals accountable for corporate criminal behavior, Justice Department leaders have stated that they will not “employ the hammer of criminal enforcement to extract unfair settlements” from corporate entities. In pursuit of that strategy, at the end of last year, federal prosecutors announced an initiative for leniency in Foreign Corrupt Practices Act cases where a corporation voluntarily discloses conduct in violation of the FCPA and cooperates with the government. Recently, the government displayed an intention to apply this policy outside of the FCPA context as well. [...]

American Bar Association 32nd Annual National Institute on White Collar Crime - 03.01.2018

On Thursday, March 1, 2018, partner Robert J. Anello will speak at the American Bar Association 32nd Annual National Institute on White Collar Crime. He will speak on a panel entitled, “New Technology in the Courtroom,” which will consider how to make the best and ethical use of available new electronic technology, the Internet, dark web, and social media during the investigation, discovery and trial phase, and how to handle encryption and document preservation. The meeting will take place in San Diego, CA.

For more information, please click here.

American Bar Association 32nd Annual National Institute on White Collar Crime - 03.01.2018

On Thursday, March 1, 2018, partner Jonathan S. Sack will speak at the American Bar Association 32nd Annual National Institute on White Collar Crime. He will speak on a panel entitled, “Defending Multi-National Investigations,” which will discuss the expanding cooperation between national law enforcement authorities, the scope and limits of corporate liability in major foreign jurisdictions, differing enforcement tools and trends, self-reporting, joint efforts by an international defense team, and fashioning global settlements. The meeting will take place in San Diego, CA.

For more information, please click here.

Morvillo Abramowitz Partners Recognized as Experts in Who’s Who Legal: Investigations 2018 - 03.01.2018

NEW YORK, March 1, 2018 – Several Morvillo Abramowitz partners have been recognized as experts in Who’s Who Legal: Investigations 2018, including Elkan Abramowitz, Richard F. Albert, Robert J. Anello, Lawrence Iason, Jodi Misher Peikin, and Richard D. Weinberg. The practitioners have been selected for their exceptional work assisting companies and individuals in internal investigations and enforcement proceedings.

Since 1996, Who's Who Legal has identified the foremost legal practitioners in business law based upon comprehensive, independent research.

Morvillo Abramowitz Partners Recognized as Experts in Who’s Who Legal: Investigations 2018 - 03.01.2018

Several Morvillo Abramowitz partners have been recognized as experts in Who’s Who Legal: Investigations 2018, including Elkan Abramowitz, Richard F. Albert, Robert J. Anello, Lawrence Iason, Jodi Misher Peikin, and Richard D. Weinberg. The practitioners have been selected for their exceptional work assisting companies and individuals in internal investigations and enforcement proceedings.

Since 1996, Who's Who Legal has identified the foremost legal practitioners in business law based upon comprehensive, independent research.