Publications

01.15.21 | Articles, Books & Journals

When Does Company Counsel Also Represent a Company Founder?

New York Law Journal

When does counsel for a company also represent a senior executive? This important question has come up recently in the government’s prosecution of Theranos founder Elizabeth Holmes. In this article, “When Does Company Counsel Also Represent a Company Founder?,” we address a dispute between the government and Holmes concerning the admissibility at trial of communications between Holmes and outside company counsel. As we explain, the legal standard makes it difficult for the individual to demonstrate a personal attorney-client relationship with company counsel.  We hope you find the article of interest, and wish you a happy and healthy new year.   

 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.15.20 | Articles, Books & Journals

Obtaining Discovery Relating To a Confidential Private Mediation

New York Law Journal

When parties engage in private mediation, they frequently assume that their mediation-related communications are not discoverable in litigation. In fact, while courts generally cloak court-sponsored mediation with a fair degree of confidentiality and permit discovery concerning the mediation only upon a heightened showing of need, there is conflicting caselaw whether the same rule applies to confidential private mediations. In our latest article, we discuss Southern District Judge Jesse M. Furman’s recent decision in Accent Delight International Ltd. v. Sotheby’s, concluding that the heightened standard of need should be applied to confidential private mediations.

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

12.10.20 | Articles, Books & Journals

Days Seem Numbered for Circuit’s Controversial Insider Trading Decision

New York Law Journal

Days before Thanksgiving, in a notable about-face, the government agreed that the Supreme Court should vacate a Second Circuit panel’s controversial insider trading decision in United States v. Blaszczak, accepting that Blaszczak’s holding that a government regulatory agency’s confidential information can constitute protectible “property” had been undermined by the Supreme Court’s subsequent decision in the George Washington Bridge case. But vacating Blaszczak would also erase the panel’s more controversial holding that the “personal benefit” test for insider trading does not apply to cases brought under the Title 18 fraud statutes, which would have significantly broadened the reach of criminal insider trading laws. In our article, “Days Seem Numbered for Circuit’s Controversial Insider Trading Decision,” we analyze the defendants’ petitions for Supreme Court review in Blazsczak discuss the implications of the government’s change in position. 

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

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

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

10.08.20 | 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

09.04.20 | 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 | 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

06.16.20 | Articles, Books & Journals

The Limits of Withholding Expert-Generated Materials

New York Law Journal

In this article, we discuss Southern District Magistrate Judge Gabriel W. Gorenstein’s recent decision in Hernandez v. The Office of the Commissioner of Baseball, in which he rejected plaintiff’s claim that a memorandum that his expert had prepared in advance of the expert’s deposition—on his own accord and absent any instruction from counsel—qualified for protection as a draft report or an expert-attorney communication. Although the 2010 amendments to Rule 26 have given counsel the ability to withhold many expert-generated materials, Judge Gorenstein’s decision demonstrates that courts will insist that the withheld materials in fact qualify as draft reports or expert-attorney communications.

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

06.10.20 | Articles, Books & Journals

Bridgegate - Open Questions After Supreme Court Narrows Fraud Statutes

New York Law Journal

Federal prosecutors often cannot resist the attractions of broadly worded “catch-all” fraud statutes like the one prohibiting wire fraud. From time to time, however, the Supreme Court has rebuffed efforts to further expand the boundaries of these crimes. In our latest article, we discuss the Court’s reversal of the “Bridgegate”-related convictions of two senior New Jersey officials, and the decision’s impact on other high-profile pending fraud prosecutions such as the NCAA basketball case. We conclude that although the Bridgegate decision did not definitively resolve the controversial issue whether what has become known as the “right to control” constitutes "property" under the federal fraud statutes, the opinion takes its place among Supreme Court decisions reining in prosecutors’ expansive readings of these laws.

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

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

05.21.20 | 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


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