Publications

11.19.20 | Articles, Books & Journals

Anticipating Justice Amy Coney Barrett’s Role in Tax Jurisprudence

New York Law Journal

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. 

Related Lawyer: Jeremy H. Temkin

11.10.20 | Articles, Books & Journals

The Supreme Court Will Interpret Another White-Collar Criminal Statute

New York Law Journal

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.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

11.08.20 | Blog Posts

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

The Insider: White Collar Defense and Securities Enforcement

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. [...]

Related Lawyers: Brian A. Jacobs, Chelsea L. Scism

10.27.20 | Blog Posts

How DOJ Shows It “Cares” About CARES Act Fraud

The Insider: White Collar Defense and Securities Enforcement

No good deed goes unpunished. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which endeavors to give struggling small businesses free money, reportedly has been rife with abuse. In a noble rush to put emergency funds in the hands of Americans in need, the U.S. Small Business Administration (SBA) relaxed many federal loan safeguards, giving the unscrupulous the perfect opportunity for fraud. The U.S. Department of Justice already has begun investigating and prosecuting individuals who have attempted to steal CARES Act funds and has relied on tips from major financial institutions to do so. As new evidence comes to light in the coming months, we can expect DOJ to continue escalating its enforcement efforts. [...]

Related Lawyers: Robert J. Anello, Chelsea L. Scism

10.22.20 | Blog Posts

Jury Trials in the Time of Covid

The Insider: White Collar Defense and Securities Enforcement

The mail arrived the other day and there it was, the blue, slightly larger than letter-size envelope with the words “JURY SUMMONS ENCLOSED” blazoned on the front. I was being called for jury duty at federal district court just as the upturn in the curve indicated an increase in Covid-19 cases. But, unlike in the past, where the envelope’s contents provided little guidance as to what the process of jury selection would entail, it now included a personal letter from the Chief Judge describing the steps the court is taking to protect jurors from Covid. It also contained a questionnaire aimed at determining whether I might be infected with Covid or might present a danger of infecting others – questions that now are all too familiar but are new to the process of jury service. [...]

Related Lawyer: Catherine M. Foti

10.21.20 | Articles, Books & Journals

Remote Depositions: The New Normal

New York Law Journal

With the COVID-19 pandemic, parties have had to adjust their approach to litigation—including by conducting depositions remotely. In some instances, parties have resisted remote depositions, claiming that the complex nature of certain litigation is ill-suited for remote depositions. In this article, we discuss Southern District Magistrate Judge Stewart D. Aaron’s recent decision in Rouviere v. DePuy Orthopaedics rejecting objections to a remote deposition. We also highlight several considerations for remote depositions.

Related Lawyers: Edward M. Spiro, Christopher B. Harwood

10.20.20 | Blog Posts

How Long Can President Trump Keep His Tax Returns From Prosecutors?

The Insider: White Collar Defense and Securities Enforcement

Late last month, the New York Times published the first in a series of exposés on President Trump’s compliance (or non-compliance) with his federal income tax obligations. While readers of the Times articles may or may not be troubled by the assertion that the President paid $750 in federal income taxes for both 2016 and 2017 and can reasonably ask whether doing so violated the Internal Revenue Code, prosecutors in the New York County District Attorney’s Office were almost certainly envious of the reporters who spent many hours reviewing the intimate details of the President’s finances. [...]

Related Lawyer: Jeremy H. Temkin

10.08.20 | Articles, Books & Journals

Implications of A More Conservative Supreme Court for White-Collar Practitioners

New York Law Journal

With the selection of Judge Amy Coney Barrett as the proposed replacement for liberal icon Justice Ruth Bader Ginsburg, a 6-3 conservative majority may shape the future direction of the Supreme Court’s jurisprudence. The generally accepted wisdom is that a more liberal Court equals a Court more protective of the rights of a criminal defendant. The color of the defendant’s “collar,” however, may make a significant difference. In this article, we discuss the Roberts Court and what has been described as the “White-Collar Paradox,” analyze Judge Amy Coney Barrett’s sparse record on the Seventh Circuit, and conclude that based on the prior voting habits of the conservative justices, white-collar criminal defendants may find the Court receptive to their arguments in ways that “blue-collar” defendants would not. 

Related Lawyers: Robert J. Anello, Richard F. Albert

09.17.20 | Articles, Books & Journals

IRS Summonses: No Reasonable Basis Required

New York Law Journal

The Internal Revenue Service has broad statutory authority to examine “any books, papers, records, or other data which may be relevant or material to [an] inquiry” and, as the Supreme Court has noted, “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” The IRS exercises its authority by issuing summonses in the course of administrative investigations of taxpayers’ civil or criminal liability. In our latest article, we discuss Byers v. United States, a recent decision by the United States Court of Appeals for the Sixth Circuit that highlights the differences between the low threshold that courts apply in deciding motions to quash summonses addressed to third parties and the more rigorous standard applied in deciding whether to authorize the issuance of John Doe summonses through which the IRS obtains data on a class of otherwise unidentified persons. While the taxpayer in Byers was ultimately unsuccessful in quashing the summonses at issue, the case is a good reminder of the importance of counsel thinking creatively about potential objections that can be asserted on behalf of their clients. I hope you find this article of interest. Stay healthy and safe!

Related Lawyer: Jeremy H. Temkin

09.15.20 | Blog Posts

Zooming In On The Flaws Of Virtual Court

The Insider: White Collar Defense and Securities Enforcement

During the Covid-19 pandemic, with some notable exceptions, the bar has generally applauded the efforts of courts around the country to suspend in-person appearances and make court “virtual” to the extent possible. In video-courtrooms throughout the United States, courts now conduct status conferences, oral arguments, and even trials on video-conferencing platforms like Zoom. Some commentators have even called for court appearances to remain virtual post-pandemic. Although this new adjudicative medium may provide a certain ease of access for attorneys and litigants in many areas of the law, not to mention some cost savings, criminal defendants should remain wary. Previous studies in the bail and immigration contexts in particular suggest that virtual court can prejudice defendants the most. [...]

Related Lawyers: Brian A. Jacobs, Ryan McMenamin

09.08.20 | Blog Posts

Who Watches The Store? Drastic Decline Of Corporate Monitors Under Trump

The Insider: White Collar Defense and Securities Enforcement

The recent settlement by Herbalife Nutrition Ltd. with the Securities and Exchange Commission, the U.S. Department of Justice, and the U.S. Attorney’s Office for the Southern District of New York totaling over $123 million is the latest in a string of enforcement actions under the Trump Administration that identified violations of the Foreign Corrupt Practices Act but noticeably did not also impose an independent corporate compliance monitor. Herbalife neatly illustrates the recent paradigm shift inside the DOJ, as the stipulated facts and extensive nature of the illicit scheme outlined in the deferred prosecution agreement are of the caliber that in previous days likely would have led to the imposition of an independent monitor. The decision not to impose one here was said to be due in part to the company’s cooperation and remedial efforts by the time of resolution. Even if the company’s cooperation and remedial efforts contributed to the government’s decision not to insist on a monitor, that decision likely was also part of a concerted effort by the current administration to sideline the use of monitorships generally. [...]

Related Lawyers: Robert J. Anello, Thaddeus R. Kleckley

09.04.20 | Articles, Books & Journals

Recent Guidance Reinforces DOJ Approach to Corporate White-Collar Investigations

New York Law Journal

Over the summer, the Department of Justice issued two important documents for white-collar prosecutors and defense counsel. The first, in June, updated prior guidance on how federal prosecutors should analyze an organization’s compliance programs. The second, in July, updated the “Resource Guide to the US Foreign Corrupt Practices Act” originally issued in 2012. In this article, we discuss key takeaways from these documents and conclude that the two documents mark the continuity in recent years in DOJ’s policies toward corporate white-collar enforcement.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08.18.20 | Articles, Books & Journals

Discovery of Absent Class Members Prior to Class Certification

New York Law Journal

The named plaintiffs in a putative class action must offer affirmative evidence—beyond just the allegations in their complaint—sufficient to satisfy each of the elements of Federal Rule of Civil Procedure 23, and the defendants often will seek to rebut that evidence at the class certification stage. In our latest article, we analyze Southern District Judge Lewis J. Liman’s recent decision in Fishon v. Peloton Interactive, permitting the defendant to depose putative class members who are not named plaintiffs for purposes of developing its defense to class certification.

Related Lawyers: Edward M. Spiro, Christopher B. Harwood

08.13.20 | Blog Posts

IRS Takes Aim At High-Income Non-Filers. Will It Cut The ‘Tax Gap’?

The Insider: White Collar Defense and Securities Enforcement

Even before the deficit exploded as a result of the Covid-19 pandemic, the federal government was running annual deficits approaching a trillion dollars due to substantial increases in spending that were not offset by additional tax revenue. One perpetual cause of shortfalls in tax revenues is the so-called tax gap, which purports to represent the difference between taxes that are owed and taxes that are paid. Last fall, I wrote about a September 2019 report in which the IRS concluded that the tax gap for 2011 through 2013 was $441 billion per year. In that report, the IRS attributed $39 billion of that shortfall to non-filers, and the IRS is now targeting that source of incremental revenue by pursuing high-income non-filers. [...]

Related Lawyer: Jeremy H. Temkin

08.13.20 | Articles, Books & Journals

FIFA Decision Confirms Long Arm of Honest Services Fraud

New York Law Journal

The government’s lead role in the prosecution of corruption within FIFA, the organization governing international soccer, may be a paradigmatic example of U.S. law enforcement acting as the world’s policeman, pursuing wrongdoing with little apparent connection to the land of baseball, hot dogs and apple pie. In this article, we analyze the Second Circuit’s recent decision in United States v. Napout, and discuss how its holding illustrates that the FCPA is not the only card the government can play to prosecute foreign bribery, with little regard to whether such conduct violates foreign law. 

Related Lawyers: Richard F. Albert, Robert J. Anello

08.04.20 | Articles, Books & Journals

Lessons from the Insider Trading Prohibition Act After Its Likely Demise In the Senate

Business Crimes Bulletin

After a long and winding road, the House voted to pass insider trading reform on December 5, 2019 with 410 yeas against only 13 nays. But the bill quickly vanished in the Senate after it was referred to the Committee on Banking, Housing, and Urban Affairs. By all accounts, insider trading reform is likely a dead letter for the foreseeable future. In this article, we highlight the strengths and weaknesses of the ITPA and conclude that those involved in drafting the next insider trading bill would do well to keep the lessons of the failed ITPA in mind when a new chance for reform comes around.

Related Lawyer: Telemachus P. Kasulis

07.17.20 | Articles, Books & Journals

Public and Private Honest Services Fraud: Are They Diverging?

New York Law Journal

Since the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), the “official act” has been a hotly contested issue in public corruption prosecutions. McDonnell has led defendants to argue that the “official act” requirement applies to other crimes – not simply honest services fraud and Hobbs Act violations – and to private, not just public, corruption. In this article, we discuss cases that have addressed this question, focusing on a recent decision from Chief Judge Colleen McMahon in the Southern District of New York.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

07.16.20 | Articles, Books & Journals

Should a Client File an Amended Tax Return?

New York Law Journal

From time to time, tax professionals learn that a client previously filed a false return, either as a result of an innocent mistake or due to fraud. While a taxpayer is under is no legal obligation to correct a previously filed return, there are often good reasons to do so. In this article, we discuss factors to be considered in advising a client as to whether to amend a return, including the applicable standards of conduct and alternatives available when the initial return fraudulently underreported income or overstated deductions. We also highlight the care that must be taken in deciding whether the benefits of amending returns warrant the risk of making admissions that could color any subsequent criminal prosecution and conclude by noting that, because Form 1040-X requires a taxpayer to swear under penalties of perjury that the amended return is complete and accurate, a client cannot correct one error on the originally filed return without curing all such errors.

Related Lawyer: Jeremy H. Temkin

06.30.20 | Blog Posts

DOJ’s Updated Guidance for Evaluating Corporate Compliance Programs

The Insider: White Collar Defense and Securities Enforcement

In early June, the Department of Justice Criminal Division released without fanfare updated guidance to be used by federal prosecutors in the evaluation of corporate compliance programs. The new guidance, “Evaluation of Corporate Compliance Programs” (“2020 Guidance”), which revised guidance issued in 2017 and 2019, retains much of the substance of the 2019 document, and according to Assistant Attorney General Brian Benczkowski, “reflects additions based on our own experience and important feedback from the business and compliance communities.” [...]

Related Lawyer: Jonathan S. Sack

06.23.20 | Blog Posts

Have Friday Nights replaced Saturday for 'Massacres'? Trump's Stealthy Attempts to Undermine Justice

The Insider: White Collar Defense and Securities Enforcement

Some still remember waking to the news following one fateful evening – October 20, 1973, when then-President Richard Nixon, embroiled in the Watergate scandal, ordered the U.S. Attorney General Elliot Richardson to fire the special prosecutor appointed to investigate the events. Richardson refused and resigned in protest. Nixon then went to the Deputy Attorney General, William Ruckelshaus, who also refused and resigned. Nixon, having lost both of his Attorneys General, ordered the Solicitor General of the United States, Robert Bork, to fire the special prosecutor. After being sworn in as acting Attorney General, Bork did just that. This historic news, which broke the next day, quickly was dubbed the “Saturday Night Massacre” – and President Nixon’s popularity would never recover. Within a year, he would resign. [...]

Related Lawyers: Robert J. Anello, Thaddeus R. Kleckley


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