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On February 20, 2020, Morvillo Abramowitz partner Jeremy H. Temkin was quoted in a Bloomberg article entitled, “Roger Stone Gets Over Three Years in Jail for Trump Cover-Up.”
To read the article and review Jeremy's comments, please click here.
More than 500 years ago, English courts developed a common law privilege, which was incorporated into American law in the early years of the republic, protecting against civil arrests of parties and witnesses on courthouse premises and when traveling to or from court. Recently, the U.S. Immigration and Customs Enforcement agency (ICE) has taken action contrary to this privilege by engaging in courthouse civil arrests of undocumented and other aliens. The State of New York and Kings County District Attorney have brought suit to stop this practice. In this article, we analyze Southern District Judge Jed S. Rakoff’s recent decision denying ICE’s motion to dismiss the lawsuit and concluding that although ICE enjoys broad discretion in enforcing the nation’s immigration laws, its discretion is not unlimited, with one powerful such limit potentially being the common law privilege against courthouse civil arrests.
For more than a decade the Internal Revenue Service has devoted substantial resources to pursuing individuals who use offshore vehicles to cheat on their U.S. tax obligations, as well as banks and professionals that facilitate their misconduct. As the IRS has struggled to tackle the challenges presented by foreign bank secrecy, the introduction of virtual currencies and the increasingly global nature of the economy have complicated its enforcement efforts. [...]
On Monday the career prosecutors who handled the trial of the president’s friend and former campaign advisor, Roger Stone, recommended that the court sentence Stone, convicted in November of obstructing Congress and witness tampering, to 87 – 108 months in federal prison, the sentence called for by the federal sentencing guidelines. Less than twenty-four hours later, at 1:48 a.m., President Trump weighed in with a tweet about the recommendation: “This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!” Putting aside, for a moment, the fact that the party on the “other side” in Mr. Stone’s case is none other than our own United States of America, with this tweet, the president attempted to put both thumbs on the scale in the criminal prosecution of his friend. What he missed unfortunately was the opportunity to focus legislators properly on the sometimes unduly harsh results of the sentencing guidelines in white collar cases. [...]
One of the key tools that white-collar attorneys regularly use to engage with prosecutors – the attorney proffer – often proceeds without any express agreement regarding what ground rules apply. In this article, we discuss the law around attorney proffers, highlight special considerations for corporate clients, and conclude that ample support exists for the longstanding custom and practice of using a careful attorney proffer as a means for necessary “frank discussion between defense counsel and prosecutor” without undue risk to either side.
In 2017, the SEC brought an insider trading action against an individual named Todd Alpert in the Southern District of New York for breaching a duty by misappropriating information used to trade securities. The case raised an interesting issue: What kind of duty did Alpert breach? Insider trading narratives have traditionally turned on breaches of fiduciary duties – but was a fiduciary duty required? In this article, I discuss the impact of Alpert, highlight the Second Circuit cases grappling with whether a simple contract is sufficient to create a duty to refrain from insider trading, and conclude that absent new legislation we will have to look to forthcoming decisions for guidance on what kind of promises are sufficient to create duties under the Exchange Act.
Morvillo Abramowitz Partner Brian A. Jacobs was cited in a petition for rehearing en banc before the United States Court of Appeals for the Second Circuit in connection with a recent blog he published in Forbes.com. The blog engaged in a close reading of an important sentence from the Second Circuit’s recent split decision in United States v. Blaszczak, and assessed whether that sentence accurately interprets the Supreme Court’s decision in Dirks v. SEC.
To read Brian’s full blog, please click here.
To read the petition, please click here.
On Monday, January 27, 2020, partner Christopher B. Harwood will moderate a panel entitled, "Roundtable on Recent Activity at the Federal Level," at the ACI 7th Annual Forum on False Claims & Qui Tam Enforcement. The forum will focus on the most up-to-date guidance and analysis available from the most respected practitioners in the field, including a faculty of experienced government prosecutors and leading in-house counsel from industries most impacted by the expanding reach of the False Claims Act, including healthcare, pharmaceutical, defense, aerospace, tech & communication and financial services. The event will take place in Manhattan at the Park Lane Hotel.
Hot Topics in Ethics for In-House Litigation Counsel - 01.22.2020
On Wednesday, January 22, 2020, partner Catherine M. Foti will participate in a live CLE webcast sponsored by Celesq entitled, "Hot Topics in Ethics for In-House Litigation Counsel." This program will focus on the pressing issues confronting in-house lawyers who receive notice of potential workplace misconduct, including whether an in-house lawyer should conduct his or her own investigation, the steps a lawyer ethically can take to gather evidence, the steps a lawyer ethically can take in negotiations to resolve a workplace claim, and what a lawyer can do to limit public disclosure of the misconduct and/or preserve confidentiality.
For more information about this program, please click here.
Title Fight: Blaszczak (18) v. Dirks (15) - 01.21.2020
The day before New Year’s Eve, the Second Circuit issued a split decision in United States v. Blaszczak, ---F.3d ----, 2019 WL 7289753 (2d Cir. Dec. 30, 2019), holding, among other things, that the “personal benefit” test the Supreme Court announced in Dirks v. SEC, 463 U.S. 646 (1983) for insider trading cases charged under Title 15 does not apply to insider trading cases charged under the Title 18.* Much can and will be written about Blaszczak. This post, however, engages in a close reading of one important sentence in Blaszczak that purports to describe and to quote from Dirks, and assesses whether Dirks actually says what the Second Circuit suggests. To the extent Blaszczak misconstrues Dirks—a binding precedent—there is reason to question whether Blaszczak will withstand further scrutiny, or be followed by other courts. [...]
The Supreme Court’s March 2018 decision in Marinello v. United States was widely seen as a potentially significant limitation on the government’s ability to prosecute endeavors to obstruct the Internal Revenue Service under 26 U.S.C. § 7212(a). In this article, I analyze the extent to which defendants have – and have not – obtained relief under Marinello and conclude that, while the decision has been of limited value to defendants challenging convictions in cases tried before Marinello, its biggest impact may be the government’s reluctance to test § 7212(a)’s outer limits in charging decisions going forward.
2020 heralds significant and welcome changes in state criminal practice in New York. On April 1, 2019, New York State legislators passed sweeping criminal justice reform legislation altering the landscape for defendants accused of a crime in New York. Of the reforms which went into effect in the new year, the most significant for the white-collar practitioner are changes to the discovery requirements compelling the government to share information with an accused well in advance of trial. Lessening restrictions imposed on suspects waiting for trial, also will have an impact on defendants charged with non-violent white-collar crimes. [...]
NEW YORK, January 7, 2020 – Several Morvillo Abramowitz partners have been recognized as experts in Who’s Who Legal: Investigations 2020, 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 a wide range of issues in white-collar crime, corporate compliance and regulatory enforcement.
Who's Who Legal along with its sister publication, Global Investigations Review, has created a comprehensive guide focusing on the foremost lawyers working in the field of investigations.