Publications

02.20.18 | Articles

You Can’t Sue the Judge, or Can You?

New York Law Journal

Although judges are sometimes attacked in public comments outside the courtroom, those of us who practice regularly before the courts operate on the assumption that judges are broadly immune from attack within the legal system. In this article, we analyze a recent decision in Zappin v. Cooper by Southern District Judge Katherine Polk Failla, discussing a surprising gap in judicial immunity accorded to New York state judges, and ultimately dismissing the claims against a judge on alternative grounds.

Related Lawyers: Judith L. Mogul, Edward M. Spiro

02.08.18 | Articles

White Collar Criminal Enforcement in the Era of Trump

New York Law Journal

The Trump administration is emphasizing individual rather than corporate liability in white collar investigations and has shifted the focus of criminal law enforcement toward some non-white collar priorities. In this article, we discuss how the move away from corporate criminal liability has been manifest in policy decisions by the Justice Department, highlight the transition of its staff, and discuss whether this shift in priorities is likely to result in a decrease in white collar investigations and prosecutions.

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

01.18.18 | Articles

The Next Frontier: Civil Penalties for Undisclosed Offshore Accounts

New York Law Journal

Over the last decade, the government’s pursuit of offshore tax evasion has included criminal cases against taxpayers and their enablers, Deferred Prosecution and Non-Prosecution Agreements with foreign financial institutions, and four Offshore Voluntary Disclosure Programs offered by the IRS. This article discusses an often overlooked fourth prong of the government’s offshore enforcement efforts: the IRS’s imposition of significant civil penalties against taxpayers who were fortunate enough to avoid criminal prosecution. The article also reviews recent cases addressing the IRS’s burden of establishing that a taxpayer’s failure to disclose offshore accounts was willful and the hurdles facing taxpayers and their lawyers seeking to avoid the steep penalties imposed.

Related Lawyer: Jeremy H. Temkin

01.04.18 | Articles

Recent Developments in the Prosecution of Corporations

New York Law Journal

The prosecution of corporations remains a contentious issue in white-collar criminal enforcement. In this article, we discuss the DOJ’s new FCPA Corporate Enforcement Policy and District of Massachusetts Judge William Young’s rejection of a corporate guilty plea in the Aegerion Pharmaceuticals case – two developments that highlight the significance of prosecutorial discretion in investigations of corporate misconduct.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.21.17 | Articles

Challenges in Successfully Asserting the Fifth Amendment

New York Law Journal

Sorting through when, how and to what extent a deponent in civil litigation may invoke the Fifth Amendment presents both substantive and procedural questions. In this article, we discuss the recent decision in Securities and Exchange Commission (SEC) v. Pence in which the court’s particularized analysis of the Fifth Amendment issues, as well as its procedural considerations, provide useful guidance for counsel whose clients seek to invoke or limit the invocation of the privilege in civil litigation.

Related Lawyers: Judith L. Mogul, Edward M. Spiro

12.05.17 | Articles

Government Makes Manafort’s Lawyer A Key Witness Against Him – Ho-hum?

New York Law Journal

Mostly lost among the headlines regarding the charges brought by Special Counsel Robert Mueller against former Trump campaign chairman Paul Manafort was the simultaneous release of a court opinion compelling one of Manafort’s own lawyers to testify against him in the grand jury. In this article, we trace the history of the bar’s failed efforts to restrict the authority of federal prosecutors to issue this troubling type of subpoena, and discuss the D.C. district court’s decision affirming that authority in the Manafort case.

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

11.16.17 | Articles

Defining “Collected Proceeds” Under the IRS’s Whistleblower Program

New York Law Journal

Information from whistleblowers has generated billions of dollars in revenues for the IRS and hundreds of millions of dollars for whistleblowers. This article discusses Whistleblower 21276-13w v. Commissioner of Internal Revenue, in which the United States Court of Appeals for the D.C. Circuit will review the Tax Court’s determination that awards should be based on the entire amount the government recovers based on a whistleblower’s information. While the IRS has argued that awards should be limited to amounts recovered under the Internal Revenue Code, others worry that excluding recoveries under other statutes could hamper the IRS’s enforcement efforts.

Related Lawyer: Jeremy H. Temkin

11.08.17 | Articles

The Impact of Salman v. United States on Downstream Tippee Prosecutions

The Review of Securities & Commodities Regulation

In Salman v. United States, the Supreme Court held that a tipper receives a personal benefit sufficient to establish illegal insider trading when the tipper makes a gift of confidential information to a trading relative or friend. Salman did not address, however, the question of what level of knowledge a downstream tippee must possess of the personal benefit the tipper received in order to be held liable for insider trading. In this article, we address how district courts have analyzed the question of what downstream tippees must know to be held liable for insider trading after Salman and Salman’s continued impact on this question going forward.

Related Lawyers: Brian A. Jacobs, Priya Raghavan

11.08.17 | Articles

New-Wave Legal Challenges for Bitcoin and Other Cryptocurrencies

Business Crimes Bulletin

The cryptocurrency boom has been met with a fresh wave of regulatory and enforcement efforts by the SEC, DOJ, and beyond. Although these regulatory efforts are intended to address concerns about cryptocurrencies being subject to fraud and manipulation, or being used for money laundering, the agencies' responses complicate the growing use of these new technologies. In this article, we discuss the SEC’s crack down on Initial Coin Offerings, securities fraud liability implications, anti-money laundering efforts with respect to bitcoin and cryptocurrency exchanges, and the international response to the cryptocurrency boom.

Related Lawyers: Robert J. Anello, Christina Lee

11.07.17 | Articles

Limits on the Scope of Honest Services Fraud

New York Law Journal

In recent public corruption cases, courts have addressed one of the most thorny concepts in white-collar criminal law – the scope of honest services mail and wire fraud. In this article, we discuss the Supreme Court’s McDonnell v. United States decision and the decision’s impact on several high-profile prosecutions of New York State politicians. These cases illustrate the continuing challenge of articulating limits on the scope of honest services fraud.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

10.17.17 | Articles

At the Intersection of Section 1782 Subpoenas and Personal Jurisdiction

New York Law Journal

In the past few years, the U.S. Supreme Court has been remaking the landscape of personal jurisdiction, generally imposing more exacting standards for the assertion of both general and specific jurisdiction. In this article, we discuss the recent decision in Australia and New Zealand Banking Group v. APR Energy Holding, which examines the question of what jurisdictional contacts are necessary to obtain discovery from a nonparty through a subpoena served pursuant to 28 U.S.C. § 1782.

Related Lawyers: Judith L. Mogul, Edward M. Spiro

10.03.17 | Articles

Proposals for a Comprehensive Federal Conviction Expungement Law

New York Law Journal

Despite years or even decades of law abiding conduct, individuals with a criminal record face extraordinary hurdles in rebuilding their lives because of the significant collateral consequences of their conviction. In the past decade, many state lawmakers have enacted laws providing for expungement or sealing remedies. At the same time, federal legislation has taken a step backwards. In this article, we discuss judicial efforts to address this problem, which federal judges acknowledge requires a solution by Congress.

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

09.21.17 | Articles

Lawyers: Blow the Whistle at Your Own Risk

New York Law Journal

Over a decade after the IRS’s Whistleblower Office was established, whistleblowing is alive and well. As the number of claims increases, so does the likelihood that attorneys will find themselves in an ethical tangle as they consider whether they can pursue monetary awards for reporting malfeasance by their clients. This article discusses recent decisions addressing the ethical issues that potential attorney-whistleblowers need to consider in deciding whether to pursue remuneration for blowing the whistle on their current or former clients.

Related Lawyer: Jeremy H. Temkin

09.05.17 | Articles

The ‘Right to Control’ Theory in Mail and Wire Fraud Prosecutions

New York Law Journal

The “right to control” theory of mail and wire fraud is one of the most challenging doctrines in white-collar criminal law. In this article, we discuss Judge Loretta A. Preska’s recent decision in United States v. Davis, in which Judge Preska analyzed the Second Circuit’s “right to control” decisions and concluded that a guilty verdict should be set aside. We also discuss practical steps defense counsel should consider when facing a mail or wire fraud prosecution premised on this doctrine.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08.15.17 | Articles

Russian Intrigue Meets the Hearsay Rule

New York Law Journal

The facts behind United States v. Prevezon Holdings were the stuff of spy novels, and indeed, the involvement of Prevezon's Russian lawyer, Natalia Veselnitskaya, only added to the drama surrounding this case. Just days before the case settled, Judge William H. Pauley III, who was to preside over the trial, issued a decision on a motion in limine filed by the government, addressing questions concerning application of the hearsay rule to foreign records the government intended to introduce at trial. In this article, we discuss Judge Pauley’s decision.

Related Lawyers: Judith L. Mogul, Edward M. Spiro

08.01.17 | Articles

Executing Search Warrants in the Digital Age: 'United States v. Wey'

New York Law Journal

A recent high-profile Fourth Amendment victory for the defense in Southern District of New York case United States v. Wey provides an occasion to assess how courts are applying search and seizure precedents to today's “big data.” In this article, we consider Wey in light of other recent decisions in the Second Circuit. These cases demonstrate that the government’s tendency to use broadly-worded search warrants, combined with uncertainty regarding what meets the Fourth Amendment test of “reasonableness” for off-site reviews of electronic files, continues to raise vexing issues for prosecutors, defense counsel, and courts in white collar criminal cases.

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

07.20.17 | Articles

Innocent Spouses Falling Victim to Jurisdictional Time Bars

New York Law Journal

Recognizing the potential unfairness of holding spouses jointly and severally responsible for tax liabilities, the Internal Revenue Service offers “innocent spouse” relief in limited circumstances. When the IRS rejects a claim for “innocent spouse” status, the requesting spouse has ninety days to seek judicial review of that adverse decision. This article discusses recent cases decided by the United States Courts of Appeals for the Second and Third Circuits holding that taxpayers who miss the 90-day deadline are precluded from obtaining judicial review, even when their failure was due to incorrect advice from the IRS.

Related Lawyer: Jeremy H. Temkin

07.11.17 | Articles

Victims' Rights and White-Collar Defense

New York Law Journal

In recent years, policy makers have sought to give victims a greater voice in the criminal justice system. On the federal level, victims have been given the right to notice about key developments in criminal cases, consultation about a prosecutor's plea and sentencing decisions, and compensation in the case of financial injury. While victim participation may complicate defense of a white-collar case, it may also provide defense counsel assistance as well. In this article, we discuss federal victims’ rights laws and their implications for white-collar cases.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.21.17 | Articles

Corporate FCPA Enforcement in The Era of Trump

Business Crimes Bulletin

The start of a new presidential administration brings along changes to personnel, policies, and enforcement priorities, and during the transition period, counsel to businesses and individuals try to anticipate which way the enforcement wind will be blowing in order to best advise anxious clients. One high-stakes area of enforcement focus, the Foreign Corrupt Practices Act (FCPA), has been subject to much speculation in this regard. In this article, we highlight 5 reasons to think that corporations should continue to commit to FCPA compliance: early signs of the new regime foretell continued zealous enforcement; the limited impact of the FCPA on American companies’ competiveness overseas; enforcement efforts by other countries; expansion of anti-bribery statutes has led to increased cooperative partners for the U.S.; and business reasons alone may encourage strong compliance.

Related Lawyers: Robert J. Anello, Peter Janowski

06.20.17 | Articles

Hurdles and Consequences to Asserting the Fifth Amendment in Civil Litigation

New York Law Journal

Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because the finder of fact may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. In this article, we discuss a number of recent decisions from the Southern District of New York addressing when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.

Related Lawyers: Judith L. Mogul, Edward M. Spiro


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