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On September 22nd, Richard Albert will be a panelist at the Ethical Considerations for Corporate Investigations: Views from All Sides webinar hosted by the New York City Bar’s White Collar Crime Committee. This panel will explore current issues and recent developments relating to ethical duties and responsibilities of attorneys in internal investigations involving corporations and other entities.
For the past 18 months, federal courts have grappled with the impact of Covid-19 on sentencing proceedings, and a curious disparity has emerged. On the one hand, anecdotal evidence suggests that federal judges are imposing more lenient sentences in recognition of how the pandemic has made imprisonment harsher and more punitive than in the past. On the other hand, reports available from the U.S. Sentencing Commission tell a different story—at least for now—suggesting that courts have to a great extent ignored the pandemic when imposing sentence. I have written in the past (here and here) about how the body of sentencing law is effectively hidden from public view (as it exists primarily in court transcripts). This dearth of readily accessible sentencing law is particularly problematic during the Covid-19 pandemic, as courts are grappling with novel issues in hundreds of cases. The U.S. Sentencing Commission is uniquely positioned to fill this gap, but so far has largely failed to do so.
To obtain a conviction on criminal tax charges, the government must prove the defendant acted “willfully.” In Cheek v. United States, the Supreme Court held that to satisfy this burden the government must “prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.” In this article, “Establishing a Cheek Defense Through Expert Testimony,” I analyze recent Circuit Court decisions rejecting claims that defendants were improperly deprived of their ability to present a Cheek defense. While there may be circumstances in which this can be done through expert testimony, the case law makes clear that defendants face an uphill battle to establish a lack of willfulness through experts.
On August 30, the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) issued requests to various companies to preserve phone records for hundreds of people whose records the committee may want to review. The letters identified records for, among others, current members of Congress, suggesting the Select Committee may issue subpoenas to these companies to obtain personal data for the specified lawmakers. Not surprisingly, news of the preservation requests ruffled some lawmakers’ feathers and prompted questions about the enforceability of any subpoenas the Select Committee may issue. Congressional inquiry, however, may not be lawmakers’ only concern.
On September 13th, Robert Anello appeared on the Korean news channel Airing News Center as a legal analyst discussing the Elizabeth Holmes trial. In the interview, Bob discussed the extraordinary amount of attention this case has garnered, and how the public’s attention has been even more rapt as a result of the ongoing global pandemic. He also discussed that while only time will tell whether the government will determine that the company’s claims were lies or simply failures, it is clear that the government is taking the types of allegations made against Ms. Holmes very seriously.
When a company under government investigation pursues business transactions, such as selling a business or borrowing money, a counterparty will typically seek information about the investigation as part of legal due diligence. As a result, white-collar defense counsel may be called upon by a client to describe the ongoing investigation and assess its merits for the counterparty. In this article, "White-Collar Investigations and Disclosure During Corporate Transaction Due Diligence," we discuss whether, and under what circumstances, such disclosures may be protected from discovery based on the attorney-client privilege and the common interest doctrine.
Effective Defense Sentencing Advocacy - 09.03.2021
On Friday, September 3rd, partner Brian A. Jacobs will be a panelist at the 30th Annual National Seminar on Federal Sentencing Guidelines presented by The Tampa Bay Chapter of the Federal Bar Association, The National Association of Criminal Defense Lawyers, and The Criminal Law Section of the Federal Bar Association. The panel, entitled “Effective Defense Sentencing Advocacy,” will discuss the process of preparing a strong, persuasive sentencing memorandum and sentencing presentation to the court. For more information, please click here.
NEW YORK, August 19, 2021 – Several Morvillo Abramowitz partners have been recognized in the 2022 Edition of Best Lawyers, including Elkan Abramowitz, Richard F. Albert, Robert J. Anello, Catherine M. Foti, Paul R. Grand, Lawrence Iason, Brian A. Jacobs, Robert M. Radick, Jeremy H. Temkin, and Richard D. Weinberg, and are featured in the following categories: Bet-the-Company Litigation, Commercial Litigation, Corporate Compliance Law, Corporate Governance Law, and Criminal Defense: White-Collar.
Published in almost 70 countries around the world, the Best Lawyers publication is the oldest and most respected peer-review publication in the legal profession. The selection process for Best Lawyers is designed to fully “capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.”
Civil litigants frequently produce documents and provide testimony pursuant to protective orders with the expectation that the order will prevent future public disclosure of these materials. However, for civil litigants whose conduct has criminal implications, a meaningful risk exists that the materials will find their way into the hands of a government prosecutor. In our latest article, “Protective Orders and Civil Litigants With Potential Criminal Exposure,” we discuss Southern District Judge Alison J. Nathan’s recent decision in United States v. Maxwell, rejecting Ghislaine Maxwell’s attempt to suppress evidence produced under a protective order.
For armchair prognosticators on the criminal law proclivities of the newly constituted Supreme Court, Justice Barrett’s majority opinion in Van Buren v. United States may provide some clues. In narrowly construing a provision of the Computer Fraud and Abuse Act of 1986 to avoid criminalizing “a breathtaking amount of commonplace computer activity,” the opinion is likely to be welcomed by those concerned about overcriminalization. Only time will tell, but Van Buren suggests that we can expect the Court’s tendency to narrowly interpret statutes to avoid criminalizing large swaths of trivial conduct to continue. We explore this issue in our latest Article: "Van Buren v. U.S. -- A Window Into Criminal Law in the Coney Barrett Era?"
What do space exploration, electric cars, and Lady Gaga’s music label have in common? All three were involved in SPAC transactions this year, and all three transactions caught the attention of Gary Gensler’s SEC. These three actions all show the SEC taking a more aggressive approach to regulation, which may result in significant penalties or the interruption of SPAC mergers, reaching even beyond the Earth’s orbit.
In recent years, the majority of states have enacted laws legalizing some form of marijuana use, with eighteen states and the District of Columbia allowing the recreational use of marijuana, and another eighteen states authorizing the use of marijuana for medicinal purposes. The federal Controlled Substances Act (the “CSA”), however, continues to classify marijuana as a Schedule I controlled substance, criminalizing virtually all production, sale, and possession of marijuana.
Earlier this month in “Companies Better Not Tread on Whistleblowers’ Right to Report,” I discussed the U.S. Securities and Exchange Commission’s action against Collector’s Coffee, Inc. and its CEO Mykalai Kontilai, and suggested that it might indicate the expanded reach of whistleblower protections under SEC Rule 21F-17(a). This week, a federal judge in New York issued an order in that case, (Securities and Exchange Commission v. Collector’s Coffee, Inc., No. 19 Civ. 4355 (VM)) confirming that Rule 21F-17(a) protects not only whistleblowing employees, but investors as well.
Digital Art May Be Next In The SEC’s Crosshairs - 07.15.2021
Like many other things, art and collectibles have gone digital. This year has seen explosive growth for NFTs, with NFT sales for 2021 already exceeding $2.5 billion. With the growing market for NFTs comes innovation, most notably the emergence of f-NFTs (“fractional non-fungible tokens”). Where financial innovation goes, the SEC is bound to follow. F-NFTs are no exception. Although perhaps not intending to rain on the creative parade, in March 2021 comments, SEC Commissioner Hester M. Peirce sounded a note of caution, warning creators of f-NFTs to be careful that they are not creating securities that would be subject to regulation.
Under the Anti-Injunction Act, 26 U.S.C. § 7421(a), taxpayers are barred from bringing suits “for the purpose of restraining the assessment or collection of any tax.” Accordingly, a taxpayer wishing to challenge a tax provision is generally required either to pay the tax and bring a suit seeking a refund in federal district court or dispute an assessment in Tax Court. In this article, “Will CIC Services Open the Floodgates to Tax Challenges,” we analyze the Supreme Court’s recent decision in CIC Services, LLC v. Internal Revenue Service, which unanimously rejected the government’s invocation of the Anti-Injunction Act to preclude a challenge to an IRS Notice requiring both taxpayers and their advisors to disclose information regarding micro-captive insurance transactions.