Publications

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

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

04.09.20 | 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

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

02.13.20 | 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

02.05.20 | Articles, Books & Journals

When Is a Promise Enough? Contractual Duties and Insider Trading

Business Crimes Bulletin

In 2017, the SEC brought an insider trading action against an individual named Todd Alpert in the Southern District of New York for breaching a duty by misappropriating information used to trade securities. The case raised an interesting issue: What kind of duty did Alpert breach? Insider trading narratives have traditionally turned on breaches of fiduciary duties – but was a fiduciary duty required? In this article, I discuss the impact of Alpert, highlight the Second Circuit cases grappling with whether a simple contract is sufficient to create a duty to refrain from insider trading, and conclude that absent new legislation we will have to look to forthcoming decisions for guidance on what kind of promises are sufficient to create duties under the Exchange Act.

Related Lawyer: Telemachus P. Kasulis

01.16.20 | Articles, Books & Journals

Two Years Later: Have Defendants Benefited from 'Marinello'?

New York Law Journal

The Supreme Court’s March 2018 decision in Marinello v. United States was widely seen as a potentially significant limitation on the government’s ability to prosecute endeavors to obstruct the Internal Revenue Service under 26 U.S.C. § 7212(a). In this article, I analyze the extent to which defendants have – and have not – obtained relief under Marinello and conclude that, while the decision has been of limited value to defendants challenging convictions in cases tried before Marinello, its biggest impact may be the government’s reluctance to test § 7212(a)’s outer limits in charging decisions going forward.

Related Lawyer: Jeremy H. Temkin

01.06.20 | Articles, Books & Journals

Challenge to SEC’s Disgorgement Authority Reaches Supreme Court

Business Crimes Bulletin

Since the 1970s, disgorgement of ill-gotten gains has been a mainstay of the SEC’s enforcement program. Although no statute expressly authorizes the SEC to obtain disgorgement in civil enforcement actions, courts routinely award disgorgement to the SEC as a component of authorized “equitable” remedies. The Supreme Court’s 2017 decision in Kokesh v. SEC, however, characterized SEC disgorgement as a “penalty” rather than an equitable remedy, casting doubt on the SEC’s disgorgement authority in civil enforcement actions. In this article, we discuss the potential implications of the Supreme Court’s recent grant of certiorari in Liu v. Securities and Exchange Commission, a case that will clarify whether disgorgement remains available to the SEC in civil actions to enforce federal securities laws. 

Related Lawyers: Jodi Misher Peikin, Jacob W. Mermelstein

01.03.20 | Articles, Books & Journals

A Bridge Too Far? Federalism and the ‘Bridgegate’ Prosecution

New York Law Journal

In white-collar criminal law, principles of federalism have influenced the Supreme Court’s interpretation of the mail and wire fraud statutes, particularly in federal prosecutions of state and local officials. In this article, we discuss an appeal now before the Supreme Court arising from the politically-motivated closure of traffic lanes in 2013 on the George Washington Bridge. The arguments of both sides touch on the federalism concerns raised in earlier Supreme Court decisions. We hope you find the article of interest. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.17.19 | Articles, Books & Journals

Personal Jurisdiction Requirements In FLSA Collective Actions

New York Law Journal

The Fair Labor Standards Act (FLSA) provides a mechanism for employees to join together and pursue a nationwide collective action against their employer. Southern District Magistrate Judge Barbara Moses’ recent decision in Pettanato v. Beacon Health Options addressed an unsettled jurisdictional issue in connection with such actions: If the court lacks general personal jurisdiction over the employer, does each individual employee have to establish that the court has specific personal jurisdiction with respect to his or her claim? Judge Moses concluded that they do. In this article, we analyze Judge Moses’ decision, which is a reminder of the rigor with which courts enforce personal jurisdiction requirements.

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

12.12.19 | Articles, Books & Journals

Supreme Court Asked to Assess Per Se Rule in Criminal Antitrust

New York Law Journal

Practitioners have observed a tension between criminal enforcement of the broadly written terms of the Sherman Antitrust Act of 1890 and the modern Supreme Court’s notions of statutory interpretation and due process. In this article, we analyze a recent certiorari petition filed in Sanchez et al. v. United States, which asks whether the operation of the per se rule in criminal antitrust cases violates the constitutional prohibition against instructing juries that certain facts presumptively establish an element of a crime. If the Court grants certiorari, Sanchez could provide an interesting test of the direction of the current Court’s criminal law jurisprudence and of its willingness to reconsider longstanding precedent.

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

11.21.19 | Articles, Books & Journals

Materiality and Admissibility of Evidence in Criminal Securities Fraud Cases

New York Law Journal

Materiality is often a critical issue in securities fraud prosecutions. In this article, we discuss a series of three important Second Circuit decisions that explored the admissibility of evidence offered by the government to prove, and by the defense to disprove, materiality in the context of securities trading. We hope you find the article of interest. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

11.14.19 | Articles, Books & Journals

John Doe Summonses: Procedural Hurdles with Limited Review

New York Law Journal

John Doe summonses have long been a powerful tool in the IRS’s arsenal to combat tax fraud schemes. Such summonses enable the IRS to seek data on a class of otherwise unidentified persons where it can articulate a reasonable basis to believe that individuals within that class have failed to comply with their tax obligations. In this article, I analyze recent decisions highlighting the heavy burden facing a party challenging a John Doe summons and discuss the potential impact of Congress’s inclusion of an additional limitation on the issuance of John Doe Summonses in the Taxpayer First Act. 

Related Lawyer: Jeremy H. Temkin

10.15.19 | Articles, Books & Journals

Significant Liability May Await Those Who File SLAPP Suits

New York Law Journal

In recent years, numerous states have enacted laws to deter so-called “SLAPP” suits—i.e., strategic lawsuits against public participation. These anti-SLAPP laws provide procedural protections for individuals and entities that are sued for speaking out on public matters. In this article, we discuss Southern District Judge J. Paul Oetken’s recent decision in National Jewish Democratic Council v. Adelson, in which he addressed – and rejected – several challenges to one of the nation’s most expansive anti-SLAPP laws.

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


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