Publications

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

10.10.19 | Articles, Books & Journals

SEC’s Reboot on Waiver Requests in Enforcement Settlements

New York Law Journal

When companies consider resolving an SEC enforcement action, they sometimes learn too late about so called “bad-boy” provisions that will inflict serious collateral consequences on their business unless the SEC provides a waiver. In this article, we discuss SEC Chairman Jay Clayton’s recently announced change in how the SEC will consider such waiver requests, which should rationalize the waiver process and provide greater certainty to companies and their shareholders regarding the consequences of enforcement settlements.

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

10.03.19 | Articles, Books & Journals

“Mismarking”: Developments In Valuation Fraud

Business Crimes Bulletin

The Department of Justice has aggressively targeted valuation or “mismarking” fraud in a number of indictments brought within the last few years. In this article, I discuss the Department’s efforts to expand its mismarking inquiries beyond stocks and bonds, highlight recent cases which illuminate the increasing need for robust internal controls designed to eliminate the incentives for an employee or manager to overvalue assets, and conclude that the defense of these cases will likely depend upon the ability of the defendants to discredit the cooperating witnesses while demonstrating that they acted in complete good faith.

Related Lawyer: Telemachus P. Kasulis

10.01.19 | Articles, Books & Journals

Limiting the Reach of the Supreme Court’s McDonnell Decision

New York Law Journal

A key question in most public corruption cases is whether a public official was part of an unlawful quid pro quo. In recent years, the “quo” issue has received particular attention: what type of acts must a public official perform, or contemplate performing, to give rise to criminal liability. In this article, we describe the definition of “official act” in McDonnell, discuss recent Second Circuit decisions which declined to extend the reach of McDonnell’s “official act” requirement, and highlight the continued fluidity of key aspects of anti-bribery law.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

09.19.19 | Articles, Books & Journals

Confidentiality of Tax Returns, Congressional Authority and the President

New York Law Journal

Section 6103 of the Internal Revenue Code sets out a simple “general rule” prohibiting federal employees from disclosing tax returns and return information. This straightforward provision is then modified by a maze of exceptions, several of which are the subject of litigation between Congressional Democrats seeking President Trump’s tax returns and the President seeking to avoid such disclosure. In this article, I discuss Section 6103’s many exceptions, Congress’s pending request for President Trump’s returns, and how litigation over the Congressional requests may provide a roadmap for both prosecutors seeking returns filed by targets in non-tax criminal investigations and civil litigants looking to avoid the heightened discovery burden when seeking copies of tax returns filed by their adversaries.

Related Lawyer: Jeremy H. Temkin

08.23.19 | Articles, Books & Journals

The Limits of Obtaining Discovery from U.S. Persons for Use in Foreign Proceedings

New York Law Journal

Parties to pending or contemplated foreign proceedings potentially can use 28 U.S.C. § 1782 to obtain broad discovery from U.S. persons for use in foreign proceedings. In this article, we discuss Judge Jed S. Rakoff’s recent decision involving Section 1782 in In re Petrobras Securities Litigation and the legal framework governing the statute.

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

08.15.19 | Articles, Books & Journals

Evaluating Whether to Cooperate in a Federal White Collar Criminal Investigation

Practical Law The Journal

In a cover article for the August/September 2019 issue of Practical Law The Journal, published by Thompson Reuters, Morvillo Abramowitz partner Brian A. Jacobs and associate Nicole L. Buseman discuss the cooperation process in federal white collar investigations, including strategic considerations for counsel and clients.

Related Lawyers: Brian A. Jacobs, Nicole L. Buseman

08.15.19 | Articles, Books & Journals

Epstein Saga Puts Spotlight on Crime Victim’s Rights Act

New York Law Journal

In leading to the ouster of a former United Sates attorney from his cabinet position, the Jeffrey Epstein case drew attention to the Crime Victims’ Rights Act, the federal statute intended to guarantee victims a role in federal criminal proceedings. In this article, we analyze the statute and its role in the Epstein case, and address his victims’ effort to use the statute to invalidate a non-prosecution agreement —which although likely mooted by Epstein’s death—is of particular significance to white-collar practitioners and their clients.  

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

07.18.19 | Articles, Books & Journals

Incriminating Expenses: Cannabis Legalization and the Fifth Amendment

New York Law Journal

More than half of the states and the District of Columbia have adopted legislation to either decriminalize or legalize cannabis, giving rise to numerous for-profit businesses. However, while growing and distributing cannabis is lawful in certain states, the Internal Revenue Code precludes individuals engaged in such conduct from deducting expenses associated with their operations. In this article, I discuss a series of cases exploring the Fifth Amendment implications of disallowing business deductions for state-sanctioned businesses, and address the limitations of the Fifth Amendment privilege against self-incrimination in litigation over disputed deductions.  

Related Lawyer: Jeremy H. Temkin

07.10.19 | Articles, Books & Journals

Judicial Review of Claims of Government Misconduct in Parallel Investigations

New York Law Journal

Parallel civil and criminal investigations are routine in white-collar matters, and courts have imposed limitations on how prosecutors may obtain the fruits of such civil investigations. In this article, we discuss a recent SDNY decision which required prosecutors to provide substantial additional information about interactions with civil investigators following a defense claim of possible prosecutorial misconduct. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.18.19 | Articles, Books & Journals

Avoiding Inadvertent Disclosures of Privileged Information

New York Law Journal

Difficult privilege issues often arise in litigation, including evaluating whether a party has impliedly waived privilege through its litigation conduct, and the extent to which a party can use a privileged document that has been inadvertently produced. In this article, we discuss two recent cases, Barbini v. First Niagara Bank and In re Keurig Green Mountain Single Serve Coffee Antitrust Litigation, in which Southern District Judge Nelson Roman and Magistrate Judge Henry Pitman tackled these issues.

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

06.12.19 | Articles, Books & Journals

The International Encryption Debate: Privacy Versus Big Brother

New York Law Journal

Governments worldwide are attempting to restrict the use of encryption services like WhatsApp and Snapchat to allow a greater opportunity for surveillance. This Big-Brother-is-watching approach has met with resistance from public rights and civil liberty activists. In this article, we discuss the spectrum of the global response – including here in the United States – to the increased use of encrypted technologies and highlight encryption laws and policies of a number of countries. This digital tug-of-war has enormous implications for privacy and for our criminal justice system.  

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

05.16.19 | Articles, Books & Journals

Closed for Business: Shutting Down the U.S. as an Offshore Tax Haven

New York Law Journal

The United States is not the only country whose citizens use offshore vehicles to cheat on their taxes, and while U.S. taxpayers think of Switzerland and Caribbean islands as tax havens, many foreign nationals use U.S.-based vehicles to evade their own tax obligations. In this article, we discuss recent legislative and regulatory steps to increase transparency as well as the IRS’s use of John Doe summonses to help foreign countries investigate offshore tax evasion by their citizens.   

Related Lawyer: Jeremy H. Temkin

05.07.19 | Articles, Books & Journals

Hub, Spokes and Rim: Revisiting Kotteakos

New York Law Journal

In Kotteakos v. United States, the Supreme Court imposed important limits on the scope of conspiracy under federal criminal law. Kotteakos held that in a single conspiracy, co-conspirators linked with a common individual must also be linked with one another. In the Supreme Court’s formulation, the “spokes” must be connected by a “rim,” and not merely with a common “hub.” In this article, we discuss the issue of single versus multiple conspiracies – an issue which recently surfaced in the indictment of 19 parents as part of an alleged “nationwide college admissions scam.”   

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

05.01.19 | Articles, Books & Journals

Should Trump’s Foreign Policy Affect Criminal Prosecutions?

Business Crimes Bulletin

In connection with several recent high-profile international cases, the Trump administration has implied that it sees law enforcement — or the lack of it — as a tool in its foreign policy arsenal. In this article, we discuss why maneuvering criminal prosecutions of individuals to influence foreign relations raises due process concerns. On the other hand, with respect to corporate prosecutions, which at their core are regulatory in nature, different considerations apply.

Related Lawyers: Robert J. Anello, Kostya Lantsman

04.16.19 | Articles, Books & Journals

When Misrepresentations During Settlement Conferences Become Sanctionable

New York Law Journal

In this article, we discuss Southern District Magistrate Judge James L. Cott’s recent decision in Otto v. Hearst Communications, addressing the potential for imposition of sanctions based upon misrepresentations during settlement conferences.

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

04.11.19 | Articles, Books & Journals

Are DOJ’s F/X Prosecutions Ahead of the Law on “Trading Ahead”?

New York Law Journal

Two recent prosecutions in the foreign exchange (F/X) market raise questions about the use of general criminal statutes to regulate a trading practice that Congress, specialized regulators, and market rules have declined to prohibit. Both cases deal with a practice that bankers refer to as pre-positioning, which the government pejoratively labels “trading ahead” or “front running,” in the context of complex, multi-billion dollar F/X trades between sophisticated parties. In this article, we discuss the appeal of the conviction in one such case and the court’s dismissal of the charges in the other.

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

04.02.19 | Articles, Books & Journals

“Spoofing” as Fraud: A Novel and Untested Theory of Prosecution

Business Crimes Bulletin

In the past few years, the government has brought several prosecutions targeting “spoofing” activity in the commodity futures markets, with mixed results at trial. In this article, we survey recent prosecutions in which the government has attempted to prosecute spoofing activity under traditional fraud statutes, including commodities fraud and wire fraud, which requires the government to prove that a defendant made a false statement or a material misrepresentation. To make that showing, the government has argued that spoofing—bidding or offering with the intent to cancel the bid or offer before execution—involves an implied misstatement to the market regarding supply and demand and a defendant’s willingness to trade. In response, defendants (joined by financial industry associations) have forcefully criticized the government’s novel theory as an overly expansive application of the wire-fraud statute. How the federal courts address the applicability of traditional fraud statutes to spoofing-related activity will have significant implications for market participants.

Related Lawyers: Jodi Misher Peikin

03.15.19 | Articles, Books & Journals

Does the Sixth Amendment Apply to Restitution? Two Justices Say the Answer May Be Yes

New York Law Journal

Beginning with Apprendi v. New Jersey in 2000, the U.S. Supreme Court has extended the Sixth Amendment to the imposition of terms of imprisonment and fines. In recent years, defendants have argued that the reasoning of Apprendi also applies to restitution – a mandatory and increasingly significant aspect of white-collar sentencing. While this argument has failed in the circuit courts, two justices of the Supreme Court, dissenting from a denial of certiorari, recently suggested that the high court should look closely at the issue. In this article, we discuss the brief dissent of Justice Gorsuch, joined by Justice Sotomayor, indicating that the Apprendi doctrine might appropriately be applied to restitution in criminal cases. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

03.14.19 | Articles, Books & Journals

Is the IRS Whistleblower Program Finally Reaching Its Potential?

New York Law Journal

Whistleblowing has become big business, resulting in thousands of submissions each year and generating billions of dollars in recoveries by the IRS. Over the years, however, whistleblowers and their lawyers have lodged several complaints regarding the IRS’s management of the Whistleblower Program. In this article, we discuss the Whistleblower Program, highlight a recent statutory change, which has led to a banner year for awards, and conclude that, in order for the Whistleblower Program to reach its full potential, the IRS could benefit from additional resources to allow it to investigate worthwhile leads on a more timely basis.

Related Lawyer: Jeremy H. Temkin


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