Publications

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

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


Load More