Publications

06.03.20 | Blog Posts

Can Tax Amnesty Programs Cure State Budget Woes?

The Insider: White Collar Defense and Securities Enforcement

Beyond the horrific human toll, the COVID-19 pandemic has wreaked havoc on state finances and created massive budget gaps. The National Conference of State Legislatures reports that more than half of states are projecting revenue shortfalls as high as 30%. Because the vast majority of states have constitutionally or statutorily mandated balanced budget provisions, governors and state legislatures are searching for ways to fill their deficits, with the most likely source of additional revenues – increased tax rates – being especially unpalatable and unproductive during a severe economic downturn. [...]     

Related Lawyer: Jeremy H. Temkin

05.31.20 | Blog Posts

Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas

The Insider: White Collar Defense and Securities Enforcement

Since COVID-19 began to spread across the United States, federal grand juries in districts around the country have stopped meeting, but prosecutors have continued to issue grand jury subpoenas, including in high-profile investigations. Without sitting grand juries, however, do prosecutors still retain the subpoena power? The answer is unclear, and anyone who receives a subpoena these days should take a close look at its validity. [...]

Related Lawyer: Brian A. Jacobs

05.28.20 | Articles, Books & Journals

Limiting Victims’ Rights: The Eleventh Circuit Reads the CVRA Narrowly

New York Law Journal

The life, and death, of Jeffrey Epstein has captured the attention of the legal community and broader public. The latest legal twist in the story is a decision by the Eleventh Circuit in In re Wild, 955 F.3d 1196 (11th Cir. 2020), which held that federal prosecutors did not have an obligation to inform, and consult with, Epstein’s victims regarding their decision not to prosecute Epstein for sex trafficking. In our latest article, we summarize the federal Crime Victims’ Rights Act and discuss the majority, concurring and dissenting opinions of the divided Eleventh Circuit.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

05.26.20 | Blog Posts

How Senators May Have Avoided Insider Trading Charges

The Insider: White Collar Defense and Securities Enforcement

Yesterday, reporters revealed the Department of Justice had discontinued the investigations into coronavirus-related trading by Senators Kelly Loeffler, James Inhofe, and Dianne Feinstein (whose holdings are in a blind trust). The three Senators each had sold—and in Senator Loeffler’s case, bought—large amounts of stock the same day or soon after a confidential senatorial briefing on January 24 by the CDC’s Director and Dr. Anthony Fauci. Prosecutors’ apparent direct communication of this result to the senators is somewhat unusual; ordinary defendants rarely get the security of knowing so promptly that the government has declined a case. The news also comes on the heels of reports that Department of Justice recently took control over these investigations from the Southern District of New York, raising the specter that this quick decision indicates further politicization of DOJ’s mission, or at minimum indicates continued erosion of Main Justice’s traditional deference to local U.S. Attorneys’ Offices. [...]

Related Lawyers: Robert J. Anello, A. Dennis Dillon

05.21.20 | Articles, Books & Journals

Financial Considerations for Sentencing in Federal Tax Prosecutions

New York Law Journal

In addition to time in prison, defendants convicted of financial crimes in federal court face fines and restitution. While the focus of most sentencing hearings is the length of any period of incarceration to be imposed, defense counsel must also consider and address the substantial monetary penalties that may be applicable. In our latest article, we review the recent decision of the United States Court of Appeals for the Second Circuit in United States v. Adams, which addressed the availability and extent of restitution and fines in criminal tax cases, and conclude that while defense counsel frequently have to “pick their battles” at sentencing, they need to be mindful of their clients’ financial exposure. 

Related Lawyer: Jeremy H. Temkin

05.14.20 | Articles, Books & Journals

Employment Agreements Under (Dis)stress

New York Law Journal

Many businesses are facing the need to reduce costs as a result of the coronavirus and its economic impact. For many businesses, that means cutting salaries sharply. For an individual with an employment contract, a substantial cut in pay could implicate a number of rights under that contract. In this article, we consider the circumstances under which a cut in pay might amount to a de facto or constructive termination which gives rise to a claim for severance and other benefits under an employment agreement. We hope you find the article of interest.

Related Lawyers: Jonathan S. Sack, A. Dennis Dillon

04.21.20 | Articles, Books & Journals

Obtaining Discovery from a Foreign Corporation through Its Domestic Affiliate

New York Law Journal

Parties to civil litigation often seek to obtain records held by foreign companies by subpoenaing their U.S. subsidiaries or affiliates. In this article, we analyze Southern District Magistrate Judge Katherine H. Parker’s recent decision in Hake v. Citibank, N.A., 2020 WL 1467132 (S.D.N.Y. Mar. 26, 2020), in which Judge Parker denied a motion to compel a domestic bank to produce documents held by its foreign parent on various grounds, including because the plaintiffs had failed to show that a sufficiently close relationship existed between the foreign parent and the domestic subsidiary.

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

04.15.20 | Articles, Books & Journals

Sentencing In Recent Insider Trading Cases: What Judges Have Said and Done

The Review of Securities & Commodities Regulation

Amidst several years of doctrinal confusion about what does and does not constitute illegal insider trading, less attention has been paid to what actually happens at the conclusion of insider trading prosecutions when defendants appear in court for sentencing. It is notable that judges have used harsh language at sentencings to describe the seriousness of insider trading, but then have imposed sentences below the minimums provided in the Sentencing Guidelines. What accounts for this discrepancy? In this article, we assess recent insider trading sentencing proceedings and evaluate the factors that may be contributing to the outcomes.

Related Lawyer: Brian A. Jacobs

04.14.20 | Blog Posts

A New Discovery Tool in Arbitration

The Insider: White Collar Defense and Securities Enforcement

Arbitration has advantages in many disputes. It is typically less formal, less expensive and less time-consuming than litigation in court. But arbitration also has limitations, including generally fewer opportunities for discovery from the opposing party and third-parties. A recent ruling of England’s highest court changes this landscape in a discrete, but noteworthy, way -- holding that judicial process may be invoked to order third-parties in England to give evidence in support of a New York arbitration. [...]

Related Lawyer: Jonathan S. Sack

04.09.20 | Articles, Books & Journals

Paying Plea Agreements More Than Lip Service

New York Law Journal

Sometimes defense counsel sees hard-won plea agreement concessions have limited impact on the court at sentencing, and the issue arises whether the prosecutor’s sentencing arguments went so far as to deny the defendant the benefit of his or her plea bargain. In our latest article, we discuss United States v. Wright, an appeal to the United States Court of Appeals for the Second Circuit brought by a co-defendant in the fraud prosecution of former sports radio personality Craig Carton, which presented the question whether though purporting to accept the terms of a plea agreement, a prosecutor’s advocacy may cross the line into a breach of that agreement. Although Wright’s withdrawal of the appeal leaves further development of this important area of criminal law to another day, in analyzing Wright and other key Second Circuit decisions, we conclude that Wright should serve as a cautionary tale to prosecutors who prefer to avoid claims of violating their own plea agreements.

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

04.02.20 | Blog Posts

Doing Even More With Relatively Less

The Insider: White Collar Defense and Securities Enforcement

Over the past decade, the IRS suffered a series of deep budget cuts that, by 2018, left the agency with fewer agents conducting audits and criminal investigations than it had 20 years earlier. The budget cuts also resulted in fewer employees responding to taxpayer inquiries and fewer representatives in the Office of the Taxpayer Advocate helping taxpayers resolve issues with the IRS. Notwithstanding the severe budget cuts, Congress expected the IRS to maintain its civil and criminal enforcement programs, provide resources to the vast majority of taxpayers who strive to comply with their tax obligations and implement key provisions of the Affordable Care Act, the Tax Cuts and Jobs Act and the Taxpayer First Act. [...]

Related Lawyer: Jeremy H. Temkin

03.24.20 | Blog Posts

State and Federal Law Enforcement Officials Act Quickly to Combat COVID-19-Related Fraud

The Insider: White Collar Defense and Securities Enforcement

In just a few weeks COVID-19 has stopped most businesses in the United States in their tracks. The business of fraud, however, respects no boundaries and thrives in times of crisis. Understanding this to be the case, both federal and state law enforcement already have stepped up their responses to such schemes. [...]

Related Lawyer: Catherine M. Foti

03.22.20 | Blog Posts

COVID-19, Criminal Enforcement, and the Imperiled Fate of the Statute of Limitations

The Insider: White Collar Defense and Securities Enforcement

Just as the COVID-19 pandemic has devastated public and private life with alarming speed – with forced social distancing, widespread layoffs, stock market turmoil, and the nightmare scenario of hospitals being overrun – so too has it had a massive and tumultuous effect on the criminal justice system. Indeed, just as the elderly and those with underlying health conditions are particularly vulnerable to COVID-19 and its effects, so are those who have the extreme misfortune (whether through their own actions or otherwise) of finding themselves in the criminal justice system as the virus races through all corners of America, including its jails, prisons, and potentially its courthouses as well. [...]

Related Lawyer: Robert M. Radick

03.19.20 | Articles, Books & Journals

Immigration Consequences for Convictions for Making False Statements

New York Law Journal

In 2010, the U.S. Supreme Court held that competent criminal defense lawyers must advise their clients of the immigration consequences of pleading guilty in order to provide “reasonable professional assistance.” Two years later, in Kawashima v. Holder, the Supreme Court held that offenses relating to the preparation and filing of false tax returns constitute aggravated felonies that can serve as a predicate for deportation. In this article, we analyze recent decisions by several Circuit Courts of Appeals applying Kawashima’s reasoning not just to defendants convicted of making false statements on tax returns, but to other white-collar offenders as well, and question whether immigration considerations will make it more difficult to achieve pretrial dispositions in false statement cases.

Related Lawyer: Jeremy H. Temkin

03.11.20 | Articles, Books & Journals

A Good Sentencing Precedent is Hard to Find

Federal Sentencing Reporter

In the February 2020 issue of the Federal Sentencing Reporter, Vol. 32, No. 3, pp. 138-144, Morvillo Abramowitz partner Brian A. Jacobs expands upon a prior column he wrote (available here) and discusses in depth the role sentencing precedent has played in recent federal sentencing proceedings, with a particular focus on cases involving gambling addictions and college admissions and testing fraud. Notwithstanding the key role sentencing precedent can play, courts and parties still face significant challenges in finding applicable sentencing precedents, and the article ultimately explores ways in which the body of sentencing law could be made more readily available to parties and courts alike.

Related Lawyer: Brian A. Jacobs

03.03.20 | Articles, Books & Journals

The Importance of “Particulars” in Criminal Fraud Cases

New York Law Journal

Criminal fraud charges are often described very broadly, without identifying the specific misstatements central to the case. A bill of particulars is an important tool to help prepare a defense and minimize surprise at trial. In this article, we discuss the standard for granting a bill of particulars, and analyze a recent decision which ordered particulars in the high-profile prosecution growing out of the Theranos blood-testing scandal. We hope you find the article of interest. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.19.20 | Articles, Books & Journals

ICE Confronts the Privilege Against Courthouse Civil Arrests

New York Law Journal

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.

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

02.19.20 | Blog Posts

IRS Operational Alliance with Foreign Authorities Bodes Ill for Offshore Tax Evaders

The Insider: White Collar Defense and Securities Enforcement

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. [...]

Related Lawyer: Jeremy H. Temkin

02.14.20 | Blog Posts

Missing Golden Opportunity: Trump's Tweeting Thumbs Upset Scale of Justice

The Insider: White Collar Defense and Securities Enforcement

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. [...]

Related Lawyer: Robert J. Anello

02.13.20 | Articles, Books & Journals

Attorney Proffers: Practical Considerations and Some Law Too

New York Law Journal

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.

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


Load More