Publications

10.18.21 | Articles, Books & Journals

Determining the Citizenship of Trusts for Diversity Jurisdiction

The New York Law Journal

Over the years, significant confusion has existed — among both litigants and the courts — regarding how to determine the citizenship of unincorporated entities for purposes of diversity jurisdiction. The issue has been particularly murky when it comes to trusts. In our latest article for The New York Law Journal, “Determining the Citizenship of Trusts for Diversity Jurisdiction,” we discuss Judge Robert W. Lehrburger’s recent decision in MSR Trust v. Nationstar Mortgage LLC concerning the citizenship of a business trust.

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

10.13.21 | Articles, Books & Journals

Recent Woes for Prosecutors in Cellphone Searches

New York Law Journal

The abundance of data stored on cellphones has been a double-edged sword for cellphone users seeking to suppress government searches.  Since the Supreme Court recognized heightened privacy interests implicated by modern cellphone searches, lower courts have scrutinized the scope and circumstances of government searches of cellphones in criminal cases.  In our latest article, “Recent Woes for Prosecutors in Cellphone Searches,” we analyze recent district court decisions applying Fourth Amendment protections to this ubiquitous form of modern technology.

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

10.04.21 | Articles, Books & Journals

Payment For Order Flow & Market Implications

Bloomberg Law – Professional Perspective

The success of Robinhood Markets Inc., and widespread adoption of zero or low-commission stock trading, have drawn attention to an established market practice—Payment for Order Flow (PFOF)—that, until recently, was little known beyond market participants and securities regulators. PFOF is a practice by which market makers pay retail broker-dealers for the opportunity to fulfill retail customer orders.  In a recent article for Bloomberg Law, “Payment For Order Flow & Market Implications,” we discuss the legal framework for PFOF and recent criticisms of the practice from SEC Chairman Gary Gensler and others. We conclude with a discussion of key strategic and empirical questions for policy makers to answer as they consider PFOF’s future. 

Related Lawyers: Jonathan S. Sack, Bronwyn Roantree

09.30.21 | Articles, Books & Journals

Restitution in FCPA Cases: Who Is a Victim of Foreign Corruption?

Anti-Corruption Report

Investigations of FCPA violations have been a big part of white-collar practice in recent years. Central to defending the targets of FCPA investigations is finding a path to a fair and final resolution.  If the resolution includes a guilty plea, one of the many issues that arises is  restitution to victims of the foreign corruption. In this article in the latest issue of the Anti-Corruption Report, “Restitution in FCPA Cases: Who is a Victim of Foreign Corruption?,” we discuss court decisions that address the circumstances under which a defendant convicted of an FCPA violation may be required to pay restitution.

Related Lawyer: Jonathan S. Sack

09.16.21 | Articles, Books & Journals

Establishing a "Cheek" Defense Through Expert Testimony

New York Law Journal

To obtain a conviction on criminal tax charges, the government must prove the defendant acted “willfully.” In Cheek v. United States, the Supreme Court held that to satisfy this burden the government must “prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.” In this article, “Establishing a Cheek Defense Through Expert Testimony,” I analyze recent Circuit Court decisions rejecting claims that defendants were improperly deprived of their ability to present a Cheek defense. While there may be circumstances in which this can be done through expert testimony, the case law makes clear that defendants face an uphill battle to establish a lack of willfulness through experts.

Related Lawyers: Jeremy H. Temkin, Jorja Knauer

09.09.21 | Articles, Books & Journals

White-Collar Investigations and Disclosure During Corporate Transaction Due Diligence

New York Law Journal

When a company under government investigation pursues business transactions, such as selling a business or borrowing money, a counterparty will typically seek information about the investigation as part of legal due diligence. As a result, white-collar defense counsel may be called upon by a client to describe the ongoing investigation and assess its merits for the counterparty. In this article, "White-Collar Investigations and Disclosure During Corporate Transaction Due Diligence," we discuss whether, and under what circumstances, such disclosures may be protected from discovery based on the attorney-client privilege and the common interest doctrine.

 

 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08.17.21 | Articles, Books & Journals

Protective Orders and Civil Litigants With Potential Criminal Exposure

New York Law Journal

Civil litigants frequently produce documents and provide testimony pursuant to protective orders with the expectation that the order will prevent future public disclosure of these materials. However, for civil litigants whose conduct has criminal implications, a meaningful risk exists that the materials will find their way into the hands of a government prosecutor. In our latest article, “Protective Orders and Civil Litigants With Potential Criminal Exposure,” we discuss Southern District Judge Alison J. Nathan’s recent decision in United States v. Maxwell, rejecting Ghislaine Maxwell’s attempt to suppress evidence produced under a protective order.

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

08.11.21 | Articles, Books & Journals

Van Buren v. U.S. - A Window Into Criminal Law in the Coney Barrett Era?

New York Law Journal

For armchair prognosticators on the criminal law proclivities of the newly constituted Supreme Court, Justice Barrett’s majority opinion in Van Buren v. United States may provide some clues. In narrowly construing a provision of the Computer Fraud and Abuse Act of 1986 to avoid criminalizing “a breathtaking amount of commonplace computer activity,” the opinion is likely to be welcomed by those concerned about overcriminalization. Only time will tell, but Van Buren suggests that we can expect the Court’s tendency to narrowly interpret statutes to avoid criminalizing large swaths of trivial conduct to continue. We explore this issue in our latest Article: "Van Buren v. U.S. -- A Window Into Criminal Law in the Coney Barrett Era?"

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

07.14.21 | Articles, Books & Journals

Will CIC Services Open the Floodgates to Tax Challenges?

New York Law Journal

Under the Anti-Injunction Act, 26 U.S.C. § 7421(a), taxpayers are barred from bringing suits “for the purpose of restraining the assessment or collection of any tax.”  Accordingly, a taxpayer wishing to challenge a tax provision is generally required either to pay the tax and bring a suit seeking a refund in federal district court or dispute an assessment in Tax Court. In this article, “Will CIC Services Open the Floodgates to Tax Challenges,” we analyze the Supreme Court’s recent decision in CIC Services, LLC v. Internal Revenue Service, which unanimously rejected the government’s invocation of the Anti-Injunction Act to preclude a challenge to an IRS Notice requiring both taxpayers and their advisors to disclose information regarding micro-captive insurance transactions.

Related Lawyer: Jeremy H. Temkin

07.08.21 | Articles, Books & Journals

Congress Requires DOJ To Report on Deferred Prosecution Agreements

New York Law Journal

In the wake of the financial crisis of 2008, federal white-collar criminal enforcement faced harsh criticism.  One of the chief targets of critics was the corporate Deferred Prosecution Agreement (DPA), under which a company is charged with criminal wrongdoing but not required to enter a guilty plea.  In this article, “Congress Requires DOJ to Report on Deferred Prosecution Agreements,” we discuss the practical and policy implications of a little noticed new provision which signals Congress’s heightened interest in the use of DPAs as an enforcement tool.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.28.21 | Articles, Books & Journals

A Warning About ‘Upjohn’ Warnings: A Word of Caution for Individual Employees

New York Law Journal

When conducting an employee interview as part of an internal investigation, corporate counsel typically warns the employee that counsel represents the employer and not the employee—but what if corporate counsel does not provide such an Upjohn warning? In this article, we discuss the current state of the law as reflected in cases in which employees have challenged the use of statements made to corporate counsel, and observe that the remedy afforded to an employee who did not receive an Upjohn warning is often lacking.

Related Lawyers: Robert M. Radick, Rusty Feldman

06.15.21 | Articles, Books & Journals

Limited-Scope Representations in Civil Cases

New York Law Journal

Traditionally, when an attorney appears on behalf of a client in a matter, federal courts have required that the attorney represent the client in all respects. In civil cases, however, courts have begun to recognize the value of limited-scope representations—i.e., representations when an attorney represents a client for only a portion of a case. In this article, we analyze Judge Jed S. Rakoff’s recent decision in Villar v. City of New York where he authorized a limited-scope representation to allow an attorney to appear solely to assist the pro se plaintiff in settlement negotiations.

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

06.09.21 | Articles, Books & Journals

Hey SIRI, Does the Fifth Amendment Protect My Passcode?

New York Law Journal

The application of the Fifth Amendment to law enforcement demands for cellphone passcodes has developed into a constitutional quagmire for the lower courts. With the Supreme Court resisting opportunities for specific guidance, right now the application of the right against self-incrimination to this overwhelmingly important modern technology depends heavily on the state or federal jurisdiction where a person is located. We explore the issue in this article: “Hey SIRI, Does the Fifth Amendment Protect My Passcode?”

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

05.20.21 | Articles, Books & Journals

Non-Willful FBAR Penalties: A (Temporary) Reprieve for Taxpayers?

New York Law Journal

For over a dozen years, the IRS and the DOJ have targeted the use of offshore accounts to evade U.S. income taxes. Last month, in testimony before Congress, IRS Commissioner Charles P. Rettig made it clear that this crackdown on offshore tax evasion will continue unabated. While most of the attention in this area focuses on the risk of criminal prosecution and substantial financial penalties faced by taxpayers who willfully violate their FBAR obligations, some FBAR violations are due to negligence or a good faith mistake, as opposed to willful conduct. In this article, we discuss the Ninth Circuit’s recent decision in United States v. Boyd, in which a split panel rejected the IRS’s imposition of non-willful FBAR penalties on a per-account basis, and instead limited the IRS to imposing a single $10,000 penalty per year. This important decision provides a useful roadmap for practitioners representing taxpayers as additional Courts of Appeal weigh in on the scope of non-willful FBAR penalties in the coming months.

Related Lawyer: Jeremy H. Temkin

05.12.21 | Articles, Books & Journals

Non-Disclosure Agreements and Insider Trading: The Second Circuit Clarifies the Scope of Criminal Liability

New York Law Journal

The law of insider trading, while derived from Section 10(b) of the Securities Exchange Act of 1934, has largely been defined and shaped by federal court decisions. In this article, we discuss two recent Second Circuit decisions which further define the scope of liability for insider trading. In United States v. Chow and United States v. Kosinski, the Court held that breach of a contractual non-disclosure obligation is equivalent to a breach of fiduciary duty for purposes of insider trading liability. We consider how these decisions may reflect a tension with mail and wire fraud case law, which resists treating a contract breach as a basis for criminal liability.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

04.20.21 | Articles, Books & Journals

Thorny Issues Raised by Third-Party Discovery in Arbitration

New York Law Journal

Third-party discovery can raise thorny legal issues in arbitration, particularly where the third parties and the arbitrator are located in different jurisdictions. In this article, we analyze Judge Jed S. Rakoff’s recent decision in Broumand v. Joseph, a subpoena enforcement proceeding where out-of-state third parties successfully resisted arbitral subpoenas. Broumand flags key issues for practitioners seeking third-party discovery in arbitration.

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

04.07.21 | Articles, Books & Journals

Congress Poised to End Use of Acquitted Conduct at Sentencing

New York Law Journal

For years, the defense bar has criticized courts’ ability to sentence defendants based on conduct for which a jury of their peers has acquitted them. As we explain in our latest article, although the Supreme Court has hesitated to review this arguably unconstitutional practice, Congress has taken up the torch with a new bipartisan bill that would ban it. The jury is still “out” on whether the bill will become law, but its introduction is a welcome sign of Congressional interest in preserving the jury’s crucial role as a bulwark of liberty.

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

03.18.21 | Articles, Books & Journals

Civil FBAR Penalty Litigation: No Reprieve for Taxpayers

New York Law Journal

In the dozen years since the UBS Deferred Prosecution Agreement, the government has aggressively pursued taxpayers who maintained undisclosed offshore accounts. While over 56,000 taxpayers have cured their historical non-compliance through Offshore Voluntary Disclosure Programs or Initiatives offered by the IRS, approximately 100 have faced criminal investigation and prosecution, while others were subject to IRS audits, which carry the risk of substantial civil penalties. In this article, I explore recent decisions by the United States Court of Appeals for the Third Circuit in Bedrosian v. United States and the Fourth Circuit in United States v. Horowitz and conclude that these and other cases reflect judicial antagonism to taxpayers’ attempting to avoid or limit civil penalties.

Related Lawyer: Jeremy H. Temkin

03.08.21 | Articles, Books & Journals

Where’s the Quid? DOJ Tests the Limits of Public Corruption Law

New York Law Journal

Proof of a “quid pro quo” is central to federal public corruption prosecutions. Recent high-profile cases have tended to focus on the “quo” part of the equation – the official act taken by a public official. Two recent federal prosecutions, in Ohio and Illinois, have drawn attention to the “quid” – the thing of value a public official receives in return for a corrupt official act. In this article, we consider what these two prosecutions may say about the outer limits of federal public corruption law.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.17.21 | Articles, Books & Journals

The Federal Arbitration Act Precludes New York from Exempting Claims from Arbitration

New York Law Journal

The Federal Arbitration Act sets forth a national policy favoring arbitration. Through the enactment of Section 7515 of the NY CPLR, however, New York sought to exempt certain types of claims from arbitration, including claims alleging sexual misconduct under the New York State Human Rights Law. In this article, “The Federal Arbitration Act Precludes New York from Exempting Claims from Arbitration,” we discuss Southern District Judge Lewis J. Liman’s recent decision in Gilbert v. Indeed, Inc., concluding that Section 7515 is preempted by the FAA, and thus cannot be used to exempt from arbitration claims that otherwise would be arbitrable under the FAA.

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


Load More