12.31.69 | Publications

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

09.15.20 | Blog Posts

Zooming In On The Flaws Of Virtual Court

The Insider: White Collar Defense and Securities Enforcement

During the Covid-19 pandemic, with some notable exceptions, the bar has generally applauded the efforts of courts around the country to suspend in-person appearances and make court “virtual” to the extent possible. In video-courtrooms throughout the United States, courts now conduct status conferences, oral arguments, and even trials on video-conferencing platforms like Zoom. Some commentators have even called for court appearances to remain virtual post-pandemic. Although this new adjudicative medium may provide a certain ease of access for attorneys and litigants in many areas of the law, not to mention some cost savings, criminal defendants should remain wary. Previous studies in the bail and immigration contexts in particular suggest that virtual court can prejudice defendants the most. [...]

Related Lawyers: Brian A. Jacobs, Ryan McMenamin

09.08.20 | Blog Posts

Who Watches The Store? Drastic Decline Of Corporate Monitors Under Trump

The Insider: White Collar Defense and Securities Enforcement

The recent settlement by Herbalife Nutrition Ltd. with the Securities and Exchange Commission, the U.S. Department of Justice, and the U.S. Attorney’s Office for the Southern District of New York totaling over $123 million is the latest in a string of enforcement actions under the Trump Administration that identified violations of the Foreign Corrupt Practices Act but noticeably did not also impose an independent corporate compliance monitor. Herbalife neatly illustrates the recent paradigm shift inside the DOJ, as the stipulated facts and extensive nature of the illicit scheme outlined in the deferred prosecution agreement are of the caliber that in previous days likely would have led to the imposition of an independent monitor. The decision not to impose one here was said to be due in part to the company’s cooperation and remedial efforts by the time of resolution. Even if the company’s cooperation and remedial efforts contributed to the government’s decision not to insist on a monitor, that decision likely was also part of a concerted effort by the current administration to sideline the use of monitorships generally. [...]

Related Lawyers: Robert J. Anello, Thaddeus R. Kleckley

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 | Blog Posts

IRS Takes Aim At High-Income Non-Filers. Will It Cut The ‘Tax Gap’?

The Insider: White Collar Defense and Securities Enforcement

Even before the deficit exploded as a result of the Covid-19 pandemic, the federal government was running annual deficits approaching a trillion dollars due to substantial increases in spending that were not offset by additional tax revenue. One perpetual cause of shortfalls in tax revenues is the so-called tax gap, which purports to represent the difference between taxes that are owed and taxes that are paid. Last fall, I wrote about a September 2019 report in which the IRS concluded that the tax gap for 2011 through 2013 was $441 billion per year. In that report, the IRS attributed $39 billion of that shortfall to non-filers, and the IRS is now targeting that source of incremental revenue by pursuing high-income non-filers. [...]

Related Lawyer: Jeremy H. Temkin

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

06.30.20 | Blog Posts

DOJ’s Updated Guidance for Evaluating Corporate Compliance Programs

The Insider: White Collar Defense and Securities Enforcement

In early June, the Department of Justice Criminal Division released without fanfare updated guidance to be used by federal prosecutors in the evaluation of corporate compliance programs. The new guidance, “Evaluation of Corporate Compliance Programs” (“2020 Guidance”), which revised guidance issued in 2017 and 2019, retains much of the substance of the 2019 document, and according to Assistant Attorney General Brian Benczkowski, “reflects additions based on our own experience and important feedback from the business and compliance communities.” [...]

Related Lawyer: Jonathan S. Sack

06.23.20 | Blog Posts

Have Friday Nights replaced Saturday for 'Massacres'? Trump's Stealthy Attempts to Undermine Justice

The Insider: White Collar Defense and Securities Enforcement

Some still remember waking to the news following one fateful evening – October 20, 1973, when then-President Richard Nixon, embroiled in the Watergate scandal, ordered the U.S. Attorney General Elliot Richardson to fire the special prosecutor appointed to investigate the events. Richardson refused and resigned in protest. Nixon then went to the Deputy Attorney General, William Ruckelshaus, who also refused and resigned. Nixon, having lost both of his Attorneys General, ordered the Solicitor General of the United States, Robert Bork, to fire the special prosecutor. After being sworn in as acting Attorney General, Bork did just that. This historic news, which broke the next day, quickly was dubbed the “Saturday Night Massacre” – and President Nixon’s popularity would never recover. Within a year, he would resign. [...]

Related Lawyers: Robert J. Anello, Thaddeus R. Kleckley

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

06.03.20 | Blog Posts

Can Tax Amnesty Programs Cure State Budget Woes?

The Insider: White Collar Defense and Securities Enforcement

Beyond the horrific human toll, the COVID-19 pandemic has wreaked havoc on state finances and created massive budget gaps. The National Conference of State Legislatures reports that more than half of states are projecting revenue shortfalls as high as 30%. Because the vast majority of states have constitutionally or statutorily mandated balanced budget provisions, governors and state legislatures are searching for ways to fill their deficits, with the most likely source of additional revenues – increased tax rates – being especially unpalatable and unproductive during a severe economic downturn. [...]     

Related Lawyer: Jeremy H. Temkin

05.31.20 | Blog Posts

Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas

The Insider: White Collar Defense and Securities Enforcement

Since COVID-19 began to spread across the United States, federal grand juries in districts around the country have stopped meeting, but prosecutors have continued to issue grand jury subpoenas, including in high-profile investigations. Without sitting grand juries, however, do prosecutors still retain the subpoena power? The answer is unclear, and anyone who receives a subpoena these days should take a close look at its validity. [...]

Related Lawyer: Brian A. Jacobs

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

05.26.20 | Blog Posts

How Senators May Have Avoided Insider Trading Charges

The Insider: White Collar Defense and Securities Enforcement

Yesterday, reporters revealed the Department of Justice had discontinued the investigations into coronavirus-related trading by Senators Kelly Loeffler, James Inhofe, and Dianne Feinstein (whose holdings are in a blind trust). The three Senators each had sold—and in Senator Loeffler’s case, bought—large amounts of stock the same day or soon after a confidential senatorial briefing on January 24 by the CDC’s Director and Dr. Anthony Fauci. Prosecutors’ apparent direct communication of this result to the senators is somewhat unusual; ordinary defendants rarely get the security of knowing so promptly that the government has declined a case. The news also comes on the heels of reports that Department of Justice recently took control over these investigations from the Southern District of New York, raising the specter that this quick decision indicates further politicization of DOJ’s mission, or at minimum indicates continued erosion of Main Justice’s traditional deference to local U.S. Attorneys’ Offices. [...]

Related Lawyers: Robert J. Anello, A. Dennis Dillon

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

04.14.20 | Blog Posts

A New Discovery Tool in Arbitration

The Insider: White Collar Defense and Securities Enforcement

Arbitration has advantages in many disputes. It is typically less formal, less expensive and less time-consuming than litigation in court. But arbitration also has limitations, including generally fewer opportunities for discovery from the opposing party and third-parties. A recent ruling of England’s highest court changes this landscape in a discrete, but noteworthy, way -- holding that judicial process may be invoked to order third-parties in England to give evidence in support of a New York arbitration. [...]

Related Lawyer: Jonathan S. Sack

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

04.02.20 | Blog Posts

Doing Even More With Relatively Less

The Insider: White Collar Defense and Securities Enforcement

Over the past decade, the IRS suffered a series of deep budget cuts that, by 2018, left the agency with fewer agents conducting audits and criminal investigations than it had 20 years earlier. The budget cuts also resulted in fewer employees responding to taxpayer inquiries and fewer representatives in the Office of the Taxpayer Advocate helping taxpayers resolve issues with the IRS. Notwithstanding the severe budget cuts, Congress expected the IRS to maintain its civil and criminal enforcement programs, provide resources to the vast majority of taxpayers who strive to comply with their tax obligations and implement key provisions of the Affordable Care Act, the Tax Cuts and Jobs Act and the Taxpayer First Act. [...]

Related Lawyer: Jeremy H. Temkin

03.24.20 | Blog Posts

State and Federal Law Enforcement Officials Act Quickly to Combat COVID-19-Related Fraud

The Insider: White Collar Defense and Securities Enforcement

In just a few weeks COVID-19 has stopped most businesses in the United States in their tracks. The business of fraud, however, respects no boundaries and thrives in times of crisis. Understanding this to be the case, both federal and state law enforcement already have stepped up their responses to such schemes. [...]

Related Lawyer: Catherine M. Foti

03.22.20 | Blog Posts

COVID-19, Criminal Enforcement, and the Imperiled Fate of the Statute of Limitations

The Insider: White Collar Defense and Securities Enforcement

Just as the COVID-19 pandemic has devastated public and private life with alarming speed – with forced social distancing, widespread layoffs, stock market turmoil, and the nightmare scenario of hospitals being overrun – so too has it had a massive and tumultuous effect on the criminal justice system. Indeed, just as the elderly and those with underlying health conditions are particularly vulnerable to COVID-19 and its effects, so are those who have the extreme misfortune (whether through their own actions or otherwise) of finding themselves in the criminal justice system as the virus races through all corners of America, including its jails, prisons, and potentially its courthouses as well. [...]

Related Lawyer: Robert M. Radick

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

02.19.20 | Blog Posts

IRS Operational Alliance with Foreign Authorities Bodes Ill for Offshore Tax Evaders

The Insider: White Collar Defense and Securities Enforcement

For more than a decade the Internal Revenue Service has devoted substantial resources to pursuing individuals who use offshore vehicles to cheat on their U.S. tax obligations, as well as banks and professionals that facilitate their misconduct. As the IRS has struggled to tackle the challenges presented by foreign bank secrecy, the introduction of virtual currencies and the increasingly global nature of the economy have complicated its enforcement efforts. [...]

Related Lawyer: Jeremy H. Temkin

02.14.20 | Blog Posts

Missing Golden Opportunity: Trump's Tweeting Thumbs Upset Scale of Justice

The Insider: White Collar Defense and Securities Enforcement

On Monday the career prosecutors who handled the trial of the president’s friend and former campaign advisor, Roger Stone, recommended that the court sentence Stone, convicted in November of obstructing Congress and witness tampering, to 87 – 108 months in federal prison, the sentence called for by the federal sentencing guidelines. Less than twenty-four hours later, at 1:48 a.m., President Trump weighed in with a tweet about the recommendation: “This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!” Putting aside, for a moment, the fact that the party on the “other side” in Mr. Stone’s case is none other than our own United States of America, with this tweet, the president attempted to put both thumbs on the scale in the criminal prosecution of his friend. What he missed unfortunately was the opportunity to focus legislators properly on the sometimes unduly harsh results of the sentencing guidelines in white collar cases. [...]

Related Lawyer: Robert J. Anello

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

01.21.20 | Blog Posts

Title Fight: Blaszczak (18) v. Dirks (15)

The Insider: White Collar Defense and Securities Enforcement

The day before New Year’s Eve, the Second Circuit issued a split decision in United States v. Blaszczak, ---F.3d ----, 2019 WL 7289753 (2d Cir. Dec. 30, 2019), holding, among other things, that the “personal benefit” test the Supreme Court announced in Dirks v. SEC, 463 U.S. 646 (1983) for insider trading cases charged under Title 15 does not apply to insider trading cases charged under the Title 18.* Much can and will be written about Blaszczak. This post, however, engages in a close reading of one important sentence in Blaszczak that purports to describe and to quote from Dirks, and assesses whether Dirks actually says what the Second Circuit suggests. To the extent Blaszczak misconstrues Dirks—a binding precedent—there is reason to question whether Blaszczak will withstand further scrutiny, or be followed by other courts. [...]

Related Lawyer: Brian A. Jacobs

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

01.08.20 | Blog Posts

Blindfold Removed from Justice in State Criminal Cases in 2020

The Insider: White Collar Defense and Securities Enforcement

2020 heralds significant and welcome changes in state criminal practice in New York. On April 1, 2019, New York State legislators passed sweeping criminal justice reform legislation altering the landscape for defendants accused of a crime in New York. Of the reforms which went into effect in the new year, the most significant for the white-collar practitioner are changes to the discovery requirements compelling the government to share information with an accused well in advance of trial. Lessening restrictions imposed on suspects waiting for trial, also will have an impact on defendants charged with non-violent white-collar crimes. [...]

Related Lawyer: Robert J. Anello

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

11.26.19 | Blog Posts

Intimidation or Free Speech: Are Trump’s Tweets Witness Tampering?

The Insider: White Collar Defense and Securities Enforcement

President Trump’s use of Twitter to shape the narrative is notorious. True to form, he was tweeting fast and furious during the impeachment hearings. Negative testimony about the president’s interactions with Ukrainian leader Volodymyr Zelensky repeatedly incited his aggressive retorts, prompting speculation about whether his outbursts may be viewed as witness intimidation. Citing the First Amendment, Trump claims he is free to say what he pleases, including name-calling and denigrating witnesses. But is it criminal witness intimidation? [...]

Related Lawyer: 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

11.04.19 | Blog Posts

The Minuses of Bringing a Plus One to Meetings with Counsel

The Insider: White Collar Defense and Securities Enforcement

It’s a privilege to have a close family, but the presence of family members for conversations with counsel can waive privilege. Nowhere does this create more of a potential problem than in criminal prosecutions. In such cases, it is not uncommon for a client to want a spouse, parent, or even child on hand at counsel’s office to discuss, for example, general strategy, the risks of going to trial, or plea options. The desire to include family members in these conversations makes sense, because the choices an individual makes in a criminal matter can have wide-ranging consequences for loved ones. But including family members in conversations with counsel creates the risk that the conversation will not be treated as confidential, and that one of those family members could be called to testify to the contents of the conversation. It is important that counsel, clients, and family members alike understand those risks and how to minimize them. [...]

Related Lawyer: Brian A. Jacobs

10.18.19 | Blog Posts

Tax Gap Estimates Show That Compliance Rates Remain Unchanged

The Insider: White Collar Defense and Securities Enforcement

With the passing of the October 15 deadline for filing individual income tax returns on extension, the extent to which taxpayers voluntarily comply with their tax obligations is top of mind for many tax professionals and observers. For people concerned with such things, the Internal Revenue Service periodically issues reports measuring voluntary compliance with the tax laws by computing the so-called “tax gap”, which purports to represent the difference between taxes that are owed and taxes that are paid. [...]

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

09.22.19 | Blog Posts

Trump's Efforts to Quash Manhattan DA's Tax Subpoena: A Tortured Version of the Rule of Law

The Insider: White Collar Defense and Securities Enforcement

In January 2016, President Trump publicly announced that he would “absolutely” release his tax returns. Since that proclamation, Trump consistently has fought efforts to disclose those same returns. Continuing that trend, Trump has filed a federal complaint to enjoin a subpoena from Manhattan prosecutors that required Trump’s accountant to produce his tax returns. Through his lawsuit, Trump has staked out an unreasonably broad conception of presidential immunity that finds no support in the law—and contorts “policy” beyond recognition. Indeed, read literally, it could unreasonably suggest that even a President’s coconspirators could not be investigated, if to do so would touch on information about the President. [...]

Related Lawyer: Robert J. Anello

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

09.18.19 | Blog Posts

Employee Liability for Corporate Misconduct – Elizabeth Warren Style: Can Negligence Become Criminal?

The Insider: White Collar Defense and Securities Enforcement

Since the last financial crisis and the resulting increased scrutiny on business entities, companies involved in suspected corporate misconduct repeatedly have paid massive fines to resolve criminal charges. Alongside high-profile announcements by the government of multi-million- and billion-dollar recoveries has been a near constant refrain from politicians and commentators that prosecutors have been lax in pursuing individuals in connection with large corporate malfeasance. [...]

Related Lawyer: Robert J. Anello

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

08.14.19 | Blog Posts

All Defendants Are Created Equal Under The Bail Reform Act – or Are They?

The Insider: White Collar Defense and Securities Enforcement

On August 1, 2019, the Second Circuit Court of Appeals jumped into the fray of what has been a growing debate about the right under the federal Bail Reform Act for individuals facing indictment to create conditions for release that only the wealthiest of defendants can even contemplate, including paying for their own home detention service. In a highly unusual opinion, in the case of United States v. Boustani, the Circuit held that the Bail Reform Act “does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails.” Although the Second Circuit’s “all created equal” pronouncement may be laudable, it is inconsistent with the plain meaning of the Act and unnecessary given the facts of Boustani. As I explain in my prior blog post, “Too Rich to Bail?,” the Bail Reform Act requires that, in each case, courts conduct an individualized assessment of the charges against the defendant as well as the weight of the evidence and the defendant’s underlying history and circumstances, to determine whether any conditions exist that would assure the defendant’s appearance in court. Thus, the Act is inequitable by its very terms. This blog discusses the Circuit’s Boustani opinion and whether the Circuit, in reaching the issue of equitable treatment, misconstrued the Act’s text. [...]

Related Lawyer: Catherine M. Foti

08.06.19 | Blog Posts

The Tax Man Taps the Brakes on Digital Currency Expansion

The Insider: White Collar Defense and Securities Enforcement

In June 2019, Facebook and a consortium of 28 founding members including Visa, Mastercard, PayPal, Uber Technologies, Inc., and eBay announced the launch in 2020 of a new digital currency called Libra, promoted as “a simple global currency and financial infrastructure that empowers billions of people.” In a White Paper introducing Libra, the consortium promises accessibility to the 1.7 billion adults globally who remain outside the financial system but who have access to mobile phones and the internet and pledges trustworthiness and support for “collaborating and innovating with the financial sector, including regulators.” Yet Libra’s global reach and potential for misuse has alarmed U.S. regulators and central bankers worldwide. At a July 11, 2019 Senate Banking Committee hearing, Federal Reserve Chair Jerome Powell expressed concern that no single regulator currently has authority to oversee Libra, stating that “Libra raises a lot of serious concerns, . . . [including] privacy, money laundering, consumer protection, [and] financial stability.” Treasury Secretary Steven Mnuchin, in a White House press briefing on July 15, 2019, acknowledged the great interest in Libra and other cryptocurrencies but voiced Treasury’s serious concern “regarding the growing misuse of virtual currencies by money launderers, terrorist financiers, and other bad players.” Concerns have also been articulated by private citizens. In an Opinion piece published by the Financial Times on June 21, 2019, Facebook co-founder Chris Hughes warned that Libra will permit companies that will put their private interests ahead of public ones to exercise monetary control and will “disrupt and weaken nation states by enabling people to move out of unstable local currencies and into a currency denominated in dollars and euros and managed by corporations.” [...]

Related Lawyer: Jeremy H. Temkin

07.19.19 | Blog Posts

The Vanishing of Federal Sentencing Decisions

The Insider: White Collar Defense and Securities Enforcement

In civil cases, the most important decisions that federal district judges make typically are recorded in the form of written opinions that are collected in the Federal Supplement, widely available for free online, and available in searchable databases on Westlaw and LexisNexis, among other places. In criminal cases, by contrast, some of the most important decisions that federal district judges make—regarding what sentences to impose—are, in the vast majority of cases, lost in the ether of PACER, where they are available only to those who know precisely where to look. This state of affairs is far from ideal for prosecutors, defense attorneys, and district judges, and it is patently unfair for criminal defendants themselves. [...]

Related Lawyer: Brian A. Jacobs

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

06.05.19 | Blog Posts

Insiders Report on the State of the IRS

The Insider: White Collar Defense and Securities Enforcement

On May 28, the Commissioner of the Small Business/Self-Employed (“SB/SE”) Division, the National Taxpayer Advocate (“NTA”) and the Chief of IRS Criminal Investigation (“CI”) provided their insider perspectives on the current state of the IRS at a town hall held at the New York City Bar Association. Each of these executives gave insights into the challenges facing the Service. [...]

Related Lawyer: Jeremy H. Temkin

05.22.19 | Blog Posts

How Many Company Employees Can Fit Into a White-Collar Lawyer's Pool?

The Insider: White Collar Defense and Securities Enforcement

State and federal prosecutors often are suspicious and critical of efforts by a company under criminal investigation to control costs and centralize knowledge by establishing “pool counsel” to represent employees who may be called upon to be witnesses. As a result, government attorneys frequently attempt to dissuade potential witnesses (current/former employees, officers, or agents of the subject organization) from agreeing to be represented by an attorney hired by their company to concurrently represent a group of similarly situated individuals. A recent ethics opinion issued by the Committee on Professional Ethics of the Association of the Bar of the City of New York, chaired by renowned ethics expert Professor Bruce Green, makes clear that although pool counsel must evaluate a number of ethical considerations, such representation often is reasonable, practical, and desirable. Hopefully, at least in New York, the Committee’s thoughtful and insightful analysis will allay prosecutors’ undue concerns. [...]

Related Lawyer: Robert J. Anello

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

05.15.19 | Blog Posts

The Proper Treatment of Fraud Victims in Federal White Collar Prosecutions

The Insider: White Collar Defense and Securities Enforcement

In white collar cases, federal prosecutors around the country reflexively file—and district courts routinely grant—motions seeking to bar defense counsel from making arguments, introducing evidence, or pursuing cross-examination regarding a fraud victim’s carelessness in dealing with the defendant. Any such argument or evidence, prosecutors generally argue, should be precluded as irrelevant, under Rule 401 of the Federal Rules of Evidence, on the ground that a victim’s lack of caution and diligence is no defense to fraud. Although these motions find support in well-established precedent, there are several reasons why courts should view them with a bit of skepticism, and should give defense counsel more latitude in exploring, particularly through cross-examination, the behavior of fraud victims. [...]

Related Lawyer: Brian A. Jacobs

05.13.19 | Blog Posts

Will the Rise of Originalism Spell the End of Gay Rights Under Title VII?

The Insider: White Collar Defense and Securities Enforcement

With the arrival of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court, almost half of the justices now subscribe to originalism—the view that vague constitutional provisions mean what they were originally understood to mean when they were enacted. While originalism figures prominently in debates about constitutional interpretation (for example, originalists claim that Roe v. Wade must be wrong because nobody alive in 1791 believed the Bill of Rights protected the right to have an abortion), originalism is seldom discussed in the context of statutory interpretation. That will likely change in the upcoming Supreme Court term, as the Court agreed on April 22 to review the Second Circuit’s en banc decision in Zarda v. Altitude Express—a decidedly non-originalist decision. In Zarda, notwithstanding that no one thought Title VII prohibited discrimination based on sexual orientation when the law passed in 1964, the Second Circuit held that Title VII prohibits just such discrimination. [...]

Related Lawyer: Catherine M. Foti

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

04.23.19 | Blog Posts

Top 10 Crimes Mueller’s Report Considers

The Insider: White Collar Defense and Securities Enforcement

The long-awaited Mueller Report provides a detailed picture of the wide variety of crimes investigated by the Special Counsel’s Office, many of which resulted in indictments or guilty pleas, and, in the case of President Trump, a suggestion that Congress may review the legality of obstructive acts. Although Mueller declined to make a final determination regarding President Trump’s criminal liability, contrary to assertions from the administration, the investigation did not exonerate Trump. Instead, the report identified multiple instances of what may be considered obstructive conduct by the President. Citing limitations on its role as an arm of the Justice Department, the Special Counsel’s Office referred determination of the question of whether Trump obstructed justice to Congress. [...]

Related Lawyer: Robert J. Anello

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

03.06.19 | Blog Posts

From Teapot Dome to Trump: How Congress Investigates Criminal Scandals

The Insider: White Collar Defense and Securities Enforcement

Since the House passed a resolution in 1792 to investigate the defeat of the United States Army at the hands of American Indians in Ohio (known as St. Clair’s Defeat), Congress has investigated hundreds of instances of possible misconduct by members of the executive branch. Today’s news is rife with reports of congressional investigations into potential obstruction of justice and more serious substantive crimes by President Trump and his immediate circle. Inevitably, the paths of congressional and criminal investigations into this type of misconduct overlap. History shows that this intersection can be fruitful, frustrating, and fraught with pitfalls. [...]

Related Lawyer: Robert J. Anello

02.20.19 | Blog Posts

Too Rich To Bail?

The Insider: White Collar Defense and Securities Enforcement

Recently, a federal judge in Brooklyn questioned whether the Bail Reform Act permits “disparate treatment based on wealth,” and denied bail to a high-net worth defendant who proposed a package that included home detention secured by privately-funded guards. In United States v. Boustani, U.S. District Judge William F. Kuntz II rejected the bail package proposed by Jean Boustani, an international businessman at the center of a $2 billion alleged fraud, bribery, and money laundering scheme that the government claims caused “staggering” losses to foreign and American investors and “devastated” the economy of Mozambique. In addition to what courts have called the “private prison” concept, Boustani’s proposed bail package included a $20 million personal recognizance bond secured by $1 million cash, and the surrender of travel documents by Boustani and his wife. [...]

Related Lawyer: Catherine M. Foti

02.19.19 | Articles, Books & Journals

Sanctions Stick Even After Settlement

New York Law Journal

An order imposing sanctions catches the attention of litigants, sometimes even encouraging the parties to settle. When they do, the sanctioned party often will seek to have the sanctions award vacated as part of the settlement. Increasingly, judges are resistant to vacating sanctions orders. In this article, we discuss Southern District Judge Victor Marrero’s recent decision in Rogue Wave Software v. BTI Systems, which highlights the trend away from courts vacating sanctions orders just because the parties’ settlement agreement provides for it, and concludes that going forward, the more egregious the conduct leading to a sanctions order, the less likely it is that a court will vacate it.

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

02.15.19 | Blog Posts

Peremptories And Prejudice: The Striking Role Of Employment Status In Jury Selection

The Insider: White Collar Defense and Securities Enforcement

It is a truth universally acknowledged, that a trial lawyer in possession of limited information about prospective jurors, may exercise strikes based on a juror’s employment status. Criminal prosecutors may strike jurors who are unemployed, in the belief that such jurors may be less socially connected, less accustomed to following rules, less experienced in making serious decisions (such as voting for conviction), and thereby potentially biased against the government and in favor of the defendant. Criminal defense lawyers, meanwhile, may strike jurors who are employed, for the inverse reasons. And in civil cases, as one commentator wrote, “[j]ury consultants consistently report that,” among other things, “long-term, unemployed people . . . tend to favor the plaintiff’s position.” Employment status can be an entirely reasonable reason for a trial lawyer to strike a prospective juror. At the same time, however, employment status can at times be misused by trial lawyers as a pretext to strike a juror when the real reason is the juror’s membership in a so-called cognizable group, such as a racial minority. In order to distinguish between a permissible and impermissible strike, judges should engage in extraordinarily careful fact-finding and analysis, as the stakes for both the lawyers and the parties run high. [...]

Related Lawyer: Brian A. Jacobs

02.14.19 | Articles, Books & Journals

White-Collar Enforcement After Two Years of Trump

New York Law Journal

The halfway point of President Trump’s term offers an opportunity to examine and assess the impact of his administration on business-related prosecutions. In this article, we discuss the government’s shift in enforcement priorities, which focus on violent crimes, opioid cases, and most notably, immigration violations. We also highlight the decline not only in the number of traditional white-collar cases brought, but also in the amounts of fines and penalties imposed. Despite these numbers, however, the Trump Justice Department has remained aggressive and creative in its pursuit of individual wrongdoers in certain business-related areas, particularly in international corruption and foreign bribery.

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

01.23.19 | Blog Posts

The Harmless Error Standard on a Silver Platter

The Insider: White Collar Defense and Securities Enforcement

In United States v. Stewart, in a 2-1 decision, the Second Circuit vacated defendant Sean Stewart’s insider-trading conviction, holding that the district court erroneously excluded a key piece of impeachment evidence and that this error could not be excused as harmless. Although the opinion focused on the admissibility of evidence that impeaches hearsay statements, the majority’s defense-friendly application of the harmless error standard could have a greater impact in future criminal appeals. [...]

Related Lawyer: Brian A. Jacobs

01.17.19 | Articles, Books & Journals

FBAR Penalties: Relief for Taxpayers?

New York Law Journal

By statute, taxpayers who fail to disclose accounts on a Report of Foreign Bank and Financial Account, commonly referred to as an FBAR, are subject to a maximum penalty of up to 50% of the funds in the undisclosed accounts. However, two recent district court opinions have held that the applicable regulations cap the FBAR penalty at $100,000 per undisclosed account. In this article, we analyze four recent cases that have split on the maximum permissible FBAR penalty and the implications of this debate.

Related Lawyer: Jeremy H. Temkin

01.08.19 | Articles, Books & Journals

Government Misconduct in a Grand Jury Investigation: Is There a Remedy?

New York Law Journal

In cases of misconduct by the government, federal law strongly favors narrowly tailored remedies in criminal cases. The ultimate sanction, dismissal of an indictment, is reserved for the most extreme wrongdoing. In this article, we discuss the Second Circuit’s recent decision in United States v. Walters, which affirmed an insider trading conviction notwithstanding undisputed, improper leaks to news reporters by an FBI agent prior to indictment.  

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.19.18 | Blog Posts

Naughty or Nice: Is Trump's Hint of a Gift of a Pardon to Manafort Obstruction of Justice?

The Insider: White Collar Defense and Securities Enforcement

According to various media reports, President Trump’s Christmas list may include the gift of a pardon to his former campaign chairman, Paul Manafort. Many critics claim that the mere suggestion of a pardon to Manafort amounts to an obstruction of justice. The law on whether and when the nation’s chief law enforcer can be said to engage in obstruction is unsettled, although what is clear is that the president’s constitutional authority is not limitless. Other presidents have exercised their absolute power to pardon in questionable ways, but the question on everyone’s mind lately is whether Trump’s dangle of a pardon to Manafort, as distinguished from the act of pardoning, may constitute an obstructionist act. [...]

Related Lawyer: Robert J. Anello

12.17.18 | Articles, Books & Journals

Specific Jurisdiction Through the Lens of New York Activity of Foreign Banks

In the past few years, the Supreme Court has issued a number of decisions emphasizing that the Constitution’s limits on personal jurisdiction have real teeth. In this article, we discuss Chief Judge Colleen McMahon’s recent decision in Nike v. Wu, which applied certain general principles of specific jurisdiction to the New York activities of a group of foreign banks against whom discovery was sought in the Southern District of New York in connection with a judgment enforcement proceeding.

Related Lawyers: Edward M. Spiro

12.04.18 | Articles, Books & Journals

1MDB Scandal Tests Justice Department on FCPA and Corporate Prosecutions

New York Law Journal

The Justice Department’s prosecution of the 1Malaysia Development Berhad (1MDB) case illustrates how despite early predictions otherwise, Trump administration enforcement of the Foreign Corrupt Practices Act is alive and well. In this article, we discuss the 1MDB case and examine the extent to which the Justice Department will adhere to the Administration’s declared intent not to “employ the hammer of criminal enforcement to extract unfair settlements” from corporations where there is cooperation and evidence of a strong compliance structure.

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

11.21.18 | Articles, Books & Journals

How Institutional Dynamics Have Shaped Insider Trading Law

The Review of Securities & Commodities Regulation

The past decade has brought multiple significant decisions in insider trading law, but has not substantially clarified the line between legal and illegal trading. In this article, we address how some degree of this lack of clarity can be traced to certain institutional dynamics at play in the courts issuing the relevant decisions. In particular, we look at both the Second Circuit’s uniquely strong preference for avoiding en banc review and the Supreme Court’s general preference for narrow decisions, and assess the ways in which these dynamics have shaped and may continue to shape insider trading jurisprudence.

Related Lawyer: Brian A. Jacobs

11.19.18 | Articles, Books & Journals

Constitutional Questions in Corporate Internal Investigations

New York Law Journal

In recent years, the Department of Justice has made clear that when companies seek leniency they are expected to turn over incriminating information about current and former employees. In this article, we discuss recent criminal prosecutions in the SDNY and District of New Jersey in which the defendants claimed violations of their constitutional rights because corporate internal investigations became intertwined with federal criminal investigations.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

11.15.18 | Articles, Books & Journals

What Will Justice Kavanaugh Mean for Criminal Tax Defendants?

New York Law Journal

Notwithstanding the controversy surrounding Brett Kavanaugh’s recent appointment to the Supreme Court, practitioners need to consider how he will impact the Court’s jurisprudence for many years to come. Regardless of what they think about Justice Kavanaugh’s record on other issues, criminal defense lawyers are likely to view his approach to the imposition of sentencing as somewhat of a mixed bag. In this article, we note that while Justice Kavanaugh has articulated concerns that the post-Booker regime has brought too much unpredictability to sentencing, his decisions have demonstrated deference to district judges, who frequently give defendants convicted of tax offenses the benefit of substantial downward variances.

Related Lawyer: Jeremy H. Temkin

10.15.18 | Blog Posts

Rethinking Corporate Monitors: DOJ Tells Companies to Mind Their Own Business

The Insider: White Collar Defense and Securities Enforcement

Since about the early 2000s, corporate monitors have become a go-to weapon for the Justice Department in its battle against business crime. Imposition of such monitors often results in the disruption of companies’ activities and expenditures of millions of corporate dollars – that might otherwise go to benefit shareholders. In line with its more business-friendly approach, Attorney General Jeff Sessions’ Department of Justice has signaled a retreat from such intrusion on businesses’ operations. Last Friday, Brian A. Benczkowski, the Assistant Attorney General in charge of the Justice Department’s Criminal Division, delivered a speech at New York University School of Law revealing this change in the Department’s approach to the use of corporate monitors. [...]

Related Lawyer: Robert J. Anello

10.15.18 | Articles, Books & Journals

Privacy Trumps Right of Access to Judicial Documents in ‘Giuffre v. Maxwell’

New York Law Journal

Southern District Judge Robert W. Sweet’s recent decision in Giuffre v. Maxwell addresses the press’s application to unseal potentially salacious documents covered by a protective order in an action concerning allegations of sexual abuse. In this article, we discuss Judge Sweet’s analysis of the law in the Second Circuit on protective orders and the sealing of “judicial documents,” and the tension between the public’s right of access and interest in transparency in the legal system and the individual’s right to privacy.

Related Lawyers: , Edward M. Spiro

10.11.18 | Articles, Books & Journals

The Vanishing Federal Criminal Trial

New York Law Journal

Contrary to Hollywood’s fictionalized vision of our criminal justice system, a recent report from the National Association for Criminal Defense Lawyers confirms what many have recognized: trials are an endangered species. In this article, we discuss how the "trial penalty"-- the difference between the result a defendant may obtain by pleading guilty and the far harsher result that same defendant may receive if found guilty after trial -- has skewed our criminal justice system.   

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

10.04.18 | Articles, Books & Journals

Hidden 'Time' Bombs in White-Collar Criminal Matters

Business Crimes Bulletin

Congress has armed the government with an arsenal of weapons to extend limitations periods in white-collar cases that prosecutors have used in increasingly creative ways that are often difficult for defendants to predict. In this article, we examine the various tools at the government’s disposal, including mutual legal assistance treaties in cross-border matters; FIRREA’s ten-year statute of limitations for frauds “affecting” financial institutions; criminal conspiracy charges; tax crimes; and war-time extensions. We highlight a recent decision in United States v. Bogucki, a wire fraud prosecution, which is a prime example of how the government may lie in wait before launching hidden “time” bombs to lengthen the applicable limitations period.

Related Lawyers: Robert J. Anello

09.26.18 | Blog Posts

Corporate Health Care Fraud Prosecutions in the Trump Administration: It Ain’t Over Til It’s Over

The Insider: White Collar Defense and Securities Enforcement

As we near the two-year point since the election of Donald J. Trump to the White House, the topic of white collar crime continues to dominate the public conversation – but the conversation in fact consists of two distinctly separate streams of dialogue. The first, and plainly more prominent, relates to the conduct of the Trump administration itself. The Special Counsel investigation regarding Russian intervention in the 2016 election, the prosecution of Michael Cohen for violating campaign finance laws, Paul Manafort’s decision to cooperate with the Special Counsel following his trial conviction on counts of bank fraud and tax fraud, and the investigation of President Trump for a host of potential crimes – all of these matters have rightfully earned headlines and generated tremendous public attention. But a second stream of dialogue, while less present in the mainstream media, is nonetheless of significant importance as well. Indeed, it is this second topic – namely, how aggressively the Trump Administration’s Department of Justice will pursue investigations into white collar crime in general, and health care fraud in particular – that is understandably a subject of much import to the corporations and individuals whose conduct may be the focus of government scrutiny. [...]

Related Lawyer: Robert M. Radick

09.20.18 | Articles, Books & Journals

‘United States v. Sertich’: Affirmative Obligations of Taxpayers

New York Law Journal

Under the Internal Revenue Code, employers are responsible for accounting for and paying over to the IRS taxes that they withhold from their employees. In United States v. Sertich, the United States Court of Appeals for the Fifth Circuit held that an employer who willfully fails either to account for or to pay over such taxes commits a felony under 26 U.S.C. § 7202. In this article, we address Sertich’s holding that, while Section 7202 lists a series of acts using the conjunctive “and,” the statute imposes mandatory obligations, all of which must be affirmatively fulfilled. Sertich is also noteworthy in its discussion of the government’s heightened burden of proving willfulness in criminal tax cases.   

Related Lawyer: Jeremy H. Temkin

09.20.18 | Articles, Books & Journals

‘Obey-the‑Law’ Injunctions: Is Time Running Out for the SEC?

New York Law Journal

SEC enforcement actions are subject to a five-year statute of limitations on civil penalties, but the SEC has often been able to enlarge its time for bringing an action by seeking equitable relief, notably, “obey-the-law” injunctions and disgorgement. In recent years, however, courts have begun to curtail this de facto enlargement of the limitations period. In Kokesh v. SEC, the Supreme Court held that disgorgement is a penalty subject to a five-year statute of limitations. Following Kokesh, courts have begun to address another important question: whether so-called obey-the-law injunctions constitute a penalty subject to the five-year limitations period. In our latest article, we discuss a recent decision of Judge Nicholas Garaufis in SEC v. Cohen, which held that an obey-the-law injunction, like disgorgement, is a penalty subject to a five-year limitations period. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

8/21/2018 | Articles, Books & Journals

In 'Ambac,' Judge Attempts to Make Sense of New York's Economic Loss Rule

New York Law Journal

New York’s economic loss rule, which acts as a check on asserting tort claims for purely economic damages, has long confounded practitioners. The rule, intended to preserve the distinction between contract and tort law and to protect defendants from disproportionate damages, has its most straightforward application in products liability and construction cases, but has been applied in a broad array of cases. In this article, we discuss a recent SDNY decision by Judge William H. Pauley III in Ambac v. U.S. Bank, which arises in the context of an RMBS case, but provides an interesting and informative lens for viewing the interplay between contract and breach of fiduciary duty claims under New York law.

Related Lawyers: Edward M. Spiro

8/16/2018 | Articles, Books & Journals

Life After 'Booker': Insights From Federal Sentencing Data

New York Law Journal

Following the Supreme Court’s landmark 2005 decision in United States v. Booker, which transformed the United States Sentencing Guidelines from mandatory to advisory, the question of how sentencing judges would exercise their restored discretion has been a matter of great interest. In this article, we highlight insights from recent sentencing statistics and conclude that the data support the continuation of welcome trends: district courts exercising their restored discretion to tailor sentences individually, with increased regional differences and courts in the Second Circuit taking a leading role in mitigating the excessive harshness of the fraud guidelines.

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

7/19/2018 | Articles, Books & Journals

The Full-Payment Rule Strikes Hard: A Look at a Recent Decision

New York Law Journal

It has long been settled law that a taxpayer challenging a tax deficiency assessed by the Internal Revenue Service in federal district court is required to “pay first and litigate later.” While taxpayers can obtain pre-payment review of such deficiencies in Tax Court, a recent decision by the United States Court of Appeals for the Second Circuit in Larson v. United States applied the so-called “full-payment rule” to preclude any judicial review of a civil penalty in excess of $60 million. In this article, we discuss this decision, its application of the full-payment rule, and potential impact on taxpayers.  

Related Lawyer: Jeremy H. Temkin

07.09.18 | Articles, Books & Journals

Back to the Future: Criminal Insider Trading Under Title 18

New York Law Journal

In recent decades, the government has brought charges for illegal insider trading primarily under the securities laws, chiefly Section 10 of the Securities Exchange Act and Rule 10b-5. In this article, we discuss the recent SDNY prosecution in United States v. Blaszczak et al., in which the government charged insider trading schemes in violation of not only Rule 10b-5 but also Section 1348 of Title 18. We discuss the implications of the outcome at trial: acquittals on the Rule 10b-5 charges but convictions on the Section 1348 charges – even though the charges related to the same securities trading. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.26.18 | Blog Posts

Justices Call Foul on SEC’s Home Court Advantage

The Insider: White Collar Defense and Securities Enforcement

After the passage of the Dodd-Frank Act in 2010, the Securities and Exchange Commission increasingly began to rely on internal administrative proceedings in lieu of filing federal court cases for securities fraud violations. This allowed the agency to avoid a sometimes rigorous federal court system and retain what some believed was an unnecessary “home court” advantage by trying cases before an administrative law judge appointed by SEC staff that litigated before it. The Supreme Court’s opinion issued last week in Lucia v. SEC – a case in which the government’s position flipped with the change of administrations – calls into question the validity of reliance by the SEC, and perhaps other federal agencies, on ALJs. [...]

Related Lawyer: Robert J. Anello

06.21.18 | Blog Posts

Getting to Zero: A Hidden Variable Behind Cooperation Rates?

The Insider: White Collar Defense and Securities Enforcement

The United States Sentencing Commission publishes massive sourcebooks of federal sentencing statistics each year, which are available online going back to 1996. The sourcebooks contain numerous charts showing aggregate sentencing trends in federal cases throughout the United States, as well as charts showing a more limited number of sentencing trends on a district-by-district basis. The recently-published 2017 sourcebook contains a surprising number: 223. That’s the number of defendants who were sentenced as cooperators (with a 5K1.1 letter) in the Southern District of New York in 2017. The number is surprising because over the past 15 years, sentencing laws and practices have changed in ways that, to some degree, have reduced defendants’ incentives to cooperate, and the national cooperation rate has steadily fallen (from about 10,000 defendants a year in 2002 (or 17.4% of defendants) to about 7,000 defendants a year in 2017 (or about 10.8% of defendants)). And yet, the number of cooperators in the S.D.N.Y. last year—223—is exactly the same as the number of cooperators sentenced in the S.D.N.Y. fifteen years earlier in 2002: 223. (The percentage of defendants cooperating in the S.D.N.Y. in 2002 and 2017 is also about the same – between 15-16% of all defendants.) Why has the S.D.N.Y. cooperation rate remained at this level when the national data shows a decrease in the frequency of cooperation? A closer look at this question highlights an important factor for courts and counsel to consider in connection with cooperator sentencings. [...]

Related Lawyer: Brian A. Jacobs

06.19.18 | Articles, Books & Journals

The Standard for Extending Discovery Deadlines

New York Law Journal

Last month Magistrate Judge Katharine H. Parker issued an interesting decision in City of Almaty, Kazakhstan v. Ablyazov. In this article, we highlight Judge Parker’s decision, which discusses the impact of the proportionality requirements in the Federal Rules of Civil Procedure on extension of discovery deadlines and articulates a five-factor balancing test to apply when considering requests to extend discovery. 

Related Lawyers: , Edward M. Spiro

06.08.18 | Articles, Books & Journals

Sessions' Justice Department's Pragmatic Approach to Corporate Accountability

New York Law Journal

Many of the administration’s enforcement priorities may raise serious concerns for criminal defense lawyers and other champions of legal rights. In this article, however, we discuss the “anti-piling on” policy announced by Deputy Attorney General Rod Rosenstein, which is intended to reduce the perceived unfairness of repeated punishments for corporate misconduct. The policy bespeaks a welcome change in DOJ leadership’s attitude toward corporate accountability, but how the policy will be applied in individual cases remains to be seen.

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

06.05.18 | Articles, Books & Journals

When Is a Bid or Offer a 'Spoof'?

Business Crimes Bulletin

Following the government’s first criminal conviction for spoofing in United States v. Coscia, questions remain about what makes a commodity futures trader’s conduct illegal instead of a legitimate trading strategy. In this article, we analyze the confusion faced by commodity futures traders in assessing whether their trading strategies constitute illegal spoofing, examine whether the Commodity Futures Trading Commission (CFTC) and Seventh Circuit have provided sufficient guidance on the distinction between spoofing and legitimate trading activity, and highlight why the Supreme Court’s recent decision to deny Coscia’s petition for writ of certiorari will have significant consequences for the many spoofing actions currently pending before the courts, as well as for commodity futures trading in general.

Related Lawyers: Jodi Misher Peikin, Brent M. Tunis

05.17.18 | Articles, Books & Journals

Beyond 'Marinello': Other Newly Relevant Obstacles to Criminal Tax Obstruction Cases

New York Law Journal

While the United States Supreme Court’s recent decision in Marinello v. United States may rightly be viewed as a bulwark against prosecutorial overreaching in tax cases, in his recent decision in United States v. Doyle, Judge Andrew Carter of the United States District Court for the Southern District of New York addressed evidentiary issues arising out of the government’s pursuit of tax obstruction charges in light of Marinello. In this article, we discuss how Judge Carter’s decision in Doyle not only shines an interesting light on post-Marinello litigation under section 7212(a), but also presents a cautionary tale to lawyers who make factual representations on behalf of their clients.

Related Lawyer: Jeremy H. Temkin

05.14.18 | Articles, Books & Journals

Insider Trading, or Trading by an Insider?

New York Law Journal

Employees of public companies routinely have confidential information about the businesses of their employers. Because that information is sometimes “material” under the securities laws, opportunities to engage in insider trading are not uncommon. In this article, we discuss recent civil and criminal charges brought against Jun Ying, a former Equifax IT staff member, for trading in Equifax stock after concluding, without being expressly told, that Equifax had suffered a major data breach. The charges raise interesting questions as to when information should be deemed material for purposes of insider trading enforcement.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

05.07.18 | Articles, Books & Journals

Marinello v. United States: SCOTUS Reins In the Tax Division

For The Defense

In Marinello v. United States, the Supreme Court rejected the government’s broad interpretation of the Omnibus Clause of the tax obstruction statute, 26 U.S.C. § 7212(a), thereby handing the white-collar defense bar an important victory. In this article, we discuss Marinello and conclude that it continues the Court’s efforts to cabin broadly-worded criminal statutes. By narrowing the scope of § 7212(a), Marinello provides defense lawyers with yet another tool to represent their clients and to push back against seemingly unbounded prosecutorial discretion.

Related Lawyers: Jeremy H. Temkin

04.18.18 | Blog Posts

The Stormy Raid of Cohen's Office Strengthens the Attorney-Client Privilege

The Insider: White Collar Defense and Securities Enforcement

Despite tweets proclaiming the death of the attorney-client privilege, the government’s recent seizure of items from Michael Cohen, Trump’s personal attorney, actually serves to preserve and engender respect for the attorney-client privilege by demonstrating the limits of the privilege. The privilege is just that – a privilege, not a right – and the highly-publicized search of Cohen’s office, home, and hotel room reassures the public that an individual cannot hide behind the attorney-client privilege simply because they place an “Esq.” after their name. Even assuming the privilege applies in this case – which given recent revelations of the nature of the lawyer’s activity is debatable – the crime-fraud exception may well “trump” the privilege. That exception, which applies when a client or the lawyer seeks to use the attorney’s services or advice to commit wrongdoing, prevents the cloak of privilege from concealing communications engaged in for fraudulent or illegal purposes. Contrary to recent partisan declarations, this limit on the privilege, in addition to the procedural and legal safeguards that the government must navigate to seize materials from an attorney, insures public trust in the role of lawyers and the appropriate role of the privilege. If lawyers expect to continue to hold a trusted role in society, the proper contours of the important privilege with which they are entrusted needs to be understood and guarded. The crime-fraud exception prevents the exploitation of the attorney-client privilege, which would undermine the public’s respect for the privilege. [...]

Related Lawyer: Robert J. Anello

04.17.18 | Articles, Books & Journals

Enforcement of Settlement Agreements – A Case in Point

New York Law Journal

Entering into a settlement agreement does not always mark the end of a litigation. A host of issues may arise in enforcing settlement agreements, as the recent decision in United States v. Prevezon Holdings makes clear. In this article, we discuss Southern District Judge William H. Pauley III’s detailed analysis in Prevezon, which provides valuable insights for counsel negotiating and seeking to enforce settlement agreements.

Related Lawyers: , Edward M. Spiro

04.03.18 | Articles, Books & Journals

My Lawyer Said It Was OK: 'Scully' and Defending Based on Reliance on Counsel

New York Law Journal

Good faith reliance on counsel can be a critical line of defense in white-collar prosecutions, but defendants seeking to assert it often face skepticism and procedural hurdles borne of an unduly narrow view of the doctrine. One example is the district court’s ruling in United States v. Scully, and the Second Circuit’s recent opinion reversing that ruling offers useful guidance. In this article, we discuss Scully and other relevant decisions, including case law supporting the so-called “involvement of counsel” defense.

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

03.29.18 | Blog Posts

Where Do Search Warrants Come From?

The Insider: White Collar Defense and Securities Enforcement

On February 27, 2018, the Supreme Court heard oral argument in United States v. Microsoft Corporation. The central issue in the case – which is now likely moot in light of the passage of the CLOUD Act last week – is whether a United States-based provider of email services must disclose, pursuant to a warrant issued under the Stored Communications Act (“SCA”), digital material stored on servers abroad. Beyond this issue, however, the oral argument in Microsoft also touched on a statutory ambiguity relating to data stored here in the United States, the resolution of which could have important implications for federal criminal investigations. […]

Related Lawyer: Brian A. Jacobs

03.22.18 | Blog Posts

Different Results for Citigroup and Wells Fargo Derivative Claims

The Insider: White Collar Defense and Securities Enforcement

Following a spate of regulatory investigations and settlements, a shareholder derivative action was filed against Citigroup’s directors and officers, claiming that they had failed to meet their obligation to “oversee company employees’ compliance with law” under the landmark In re Caremark International Inc. Derivative Litigation decision. At first blush, the case deals with issues very similar to those considered in a separate shareholder derivative suit against Wells Fargo & Company, in which a federal district court in May and October 2017 denied motions to dismiss and permitted discovery to proceed – the subject of a separate blog post. However, in the Citigroup case (Oklahoma Firefighters Pension & Retirement System v. Corbat et al.), the Delaware Chancery Court granted the defendants’ motion to dismiss and then denied a plaintiff motion to reopen the case. It is instructive to consider the Chancery Court’s analysis in the Citigroup case and to contrast the allegations there with the issues in the Wells Fargo case. […]

Related Lawyer: Jonathan S. Sack

03.21.18 | Articles, Books & Journals

'Menendez' Decision Clarifies Issues in Public Corruption Cases

New York Law Journal

Attention has shifted in recent years from prosecutions of insider trading to high-profile charges of public corruption. In this article, we discuss Senior District Judge William H. Walls’s dismissal of campaign finance related counts in United States v. Menendez, followed by dismissal of the remaining counts at the government’s request. Judge Walls’s thoughtful analysis provides useful guidance to prosecutors and defense counsel in future public corruption cases.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

03.15.18 | Articles, Books & Journals

Deterrence in an Age of Dwindling Enforcement

New York Law Journal

The Tax Division of the Department of Justice has long sought to maximize the impact of criminal prosecutions by focusing its limited resources on a small number of high-profile offenders in the hopes that publicity regarding such prosecutions will lead others to comply with their tax obligations. As a logical extension of this principle, it is commonly accepted that general deterrence is a significant consideration in sentencing convicted tax offenders. In this article, we discuss how the recent reductions in the Internal Revenue Service’s enforcement budget has negatively affected the number of tax investigations and prosecutions, heightening questions regarding the fairness of ratcheting sentences of convicted tax offenders even higher to offset the loss of deterrence resulting from reduced enforcement activity.

Related Lawyer: Jeremy H. Temkin

03.08.18 | Blog Posts

Prosecuting Corporations: NOT High on Administration’s To Do List

The Insider: White Collar Defense and Securities Enforcement

After a year of conjecture about the Trump administration’s approach to white-collar crime, the Justice Department has reinforced speculation of a relatively hands-off approach to corporate prosecutions. While asserting that it will hold individuals accountable for corporate criminal behavior, Justice Department leaders have stated that they will not “employ the hammer of criminal enforcement to extract unfair settlements” from corporate entities. In pursuit of that strategy, at the end of last year, federal prosecutors announced an initiative for leniency in Foreign Corrupt Practices Act cases where a corporation voluntarily discloses conduct in violation of the FCPA and cooperates with the government. Recently, the government displayed an intention to apply this policy outside of the FCPA context as well. [...]

Related Lawyer: Robert J. Anello

02.23.18 | Blog Posts

Dodd-Frank's Anti-Retaliation Protections Apply Only to Whistleblowers Who Report to the SEC

The Insider: White Collar Defense and Securities Enforcement

In Digital Realty Trust, Inc. v. Somers, a 9-0 opinion by Justice Ginsburg issued February 21, 2018, the Supreme Court held that the anti-retaliation provisions of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act do not extend to employees who have reported internally but extend only to employees who have reported suspected securities law violations to the Securities and Exchange Commission. The Supreme Court's decision reversed the Ninth Circuit, and resolved a longtime circuit split. The Fifth Circuit has held that employees must provide information to the SEC while the Ninth and Second Circuits held that reporting internally is enough for employees to qualify for Dodd-Frank Act's anti-retaliation protections. [...]

Related Lawyer: Catherine M. Foti

02.20.18 | Articles, Books & Journals

You Can’t Sue the Judge, or Can You?

New York Law Journal

Although judges are sometimes attacked in public comments outside the courtroom, those of us who practice regularly before the courts operate on the assumption that judges are broadly immune from attack within the legal system. In this article, we analyze a recent decision in Zappin v. Cooper by Southern District Judge Katherine Polk Failla, discussing a surprising gap in judicial immunity accorded to New York state judges, and ultimately dismissing the claims against a judge on alternative grounds.

Related Lawyers: , Edward M. Spiro

02.20.18 | Blog Posts

Something Rotten in Denmark? The International Criminalization of Drug Advertising

The Insider: White Collar Defense and Securities Enforcement

Sometimes, when it comes to drafting posts for The Insider, a little digging can turn up remarkable results. This week’s post demonstrates the point, as it originates from short news stories that appeared recently in two journals that may not be so well known: Medwatch, based in Copenhagen, and Stat, headquartered in Boston. Both sites cover the pharmaceutical and health care industries, and both deserve considerable appreciation, because what they have uncovered is alarming and even disturbing: in the pharmaceutical industry, despite a recent increase in legal protections, you can still go to prison for posting truthful statements on social media about government-approved prescription medications. [...]

Related Lawyer: Robert M. Radick

02.08.18 | Articles, Books & Journals

White Collar Criminal Enforcement in the Era of Trump

New York Law Journal

The Trump administration is emphasizing individual rather than corporate liability in white collar investigations and has shifted the focus of criminal law enforcement toward some non-white collar priorities. In this article, we discuss how the move away from corporate criminal liability has been manifest in policy decisions by the Justice Department, highlight the transition of its staff, and discuss whether this shift in priorities is likely to result in a decrease in white collar investigations and prosecutions.

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

01.18.18 | Articles, Books & Journals

The Next Frontier: Civil Penalties for Undisclosed Offshore Accounts

New York Law Journal

Over the last decade, the government’s pursuit of offshore tax evasion has included criminal cases against taxpayers and their enablers, Deferred Prosecution and Non-Prosecution Agreements with foreign financial institutions, and four Offshore Voluntary Disclosure Programs offered by the IRS. This article discusses an often overlooked fourth prong of the government’s offshore enforcement efforts: the IRS’s imposition of significant civil penalties against taxpayers who were fortunate enough to avoid criminal prosecution. The article also reviews recent cases addressing the IRS’s burden of establishing that a taxpayer’s failure to disclose offshore accounts was willful and the hurdles facing taxpayers and their lawyers seeking to avoid the steep penalties imposed.

Related Lawyer: Jeremy H. Temkin

01.10.18 | Blog Posts

Bitcoin Buyers Beware: The IRS Has Your Number

The Insider: White Collar Defense and Securities Enforcement

As the number and variety of cryptocurrencies on the market continue to grow, so does the scrutiny by government regulators. As noted in my prior post, the Federal Bureau of Investigation, Securities and Exchange Commission, and the Commodities Futures Trading Commission have developed units focused on cyber-threats, as have numerous foreign governments. Most recently, the Internal Revenue Service has joined the mix by investigating the ways in which taxpayers do – and more importantly, do not – report virtual currency transactions. Now Congress has gotten in on the action by amending the tax code to close a loophole that allowed cryptocurrency owners to exchange digital currencies without reporting the transactions on their tax returns. 2018 is likely to be a year of uncertainty for owners of cryptocurrencies, which may account in part for the double digit decline in the value of Bitcoins at the end of December. [...]

Related Lawyer: Robert J. Anello

01.04.18 | Articles, Books & Journals

Recent Developments in the Prosecution of Corporations

New York Law Journal

The prosecution of corporations remains a contentious issue in white-collar criminal enforcement. In this article, we discuss the DOJ’s new FCPA Corporate Enforcement Policy and District of Massachusetts Judge William Young’s rejection of a corporate guilty plea in the Aegerion Pharmaceuticals case – two developments that highlight the significance of prosecutorial discretion in investigations of corporate misconduct.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.21.17 | Articles, Books & Journals

Challenges in Successfully Asserting the Fifth Amendment

New York Law Journal

Sorting through when, how and to what extent a deponent in civil litigation may invoke the Fifth Amendment presents both substantive and procedural questions. In this article, we discuss the recent decision in Securities and Exchange Commission (SEC) v. Pence in which the court’s particularized analysis of the Fifth Amendment issues, as well as its procedural considerations, provide useful guidance for counsel whose clients seek to invoke or limit the invocation of the privilege in civil litigation.

Related Lawyers: , Edward M. Spiro

12.20.17 | Blog Posts

An Unexpected Critique of the Grand Jury Subpoena Power

The Insider: White Collar Defense and Securities Enforcement

On November 29, 2017, the Supreme Court heard oral argument in Carpenter v. United States, which presents the question of whether the federal government must, under the Fourth Amendment, obtain a warrant before getting historical cell-site location records from cell phone service providers. Broadly speaking, the government argued that it did not need to obtain a warrant because individuals do not have a reasonable expectation of privacy in business records held by third parties (in this case, the cell service providers). Carpenter countered that the warrantless collection of data revealing people’s long-term movements so violates reasonable expectations of privacy that a warrant is required, notwithstanding that the data is possessed by third parties. [...]

Related Lawyer: Brian A. Jacobs

12.05.17 | Articles, Books & Journals

Government Makes Manafort’s Lawyer A Key Witness Against Him – Ho-hum?

New York Law Journal

Mostly lost among the headlines regarding the charges brought by Special Counsel Robert Mueller against former Trump campaign chairman Paul Manafort was the simultaneous release of a court opinion compelling one of Manafort’s own lawyers to testify against him in the grand jury. In this article, we trace the history of the bar’s failed efforts to restrict the authority of federal prosecutors to issue this troubling type of subpoena, and discuss the D.C. district court’s decision affirming that authority in the Manafort case.

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

11.30.17 | Articles, Books & Journals

Community Disengagement

11.30.17 | Blog Posts

Wells Fargo Litigation Highlights Directors’ Obligation to Establish and Monitor Corporate Compliance

The Insider: White Collar Defense and Securities Enforcement

Fallout from the unauthorized opening of bank and credit card accounts at Wells Fargo has been immense. Thousands of employees, including the CEO, have lost their jobs, and several long-serving directors were forced to resign. The bank has thus far paid about $185 million in penalties and reportedly has reached and received preliminary approval for a proposed $142 million class-action settlement to compensate customers for accounts opened without their permission. Wells Fargo still faces ongoing investigations by the Department of Justice and Securities and Exchange Commission. [...]

Related Lawyer: Jonathan S. Sack

11.16.17 | Articles, Books & Journals

Defining “Collected Proceeds” Under the IRS’s Whistleblower Program

New York Law Journal

Information from whistleblowers has generated billions of dollars in revenues for the IRS and hundreds of millions of dollars for whistleblowers. This article discusses Whistleblower 21276-13w v. Commissioner of Internal Revenue, in which the United States Court of Appeals for the D.C. Circuit will review the Tax Court’s determination that awards should be based on the entire amount the government recovers based on a whistleblower’s information. While the IRS has argued that awards should be limited to amounts recovered under the Internal Revenue Code, others worry that excluding recoveries under other statutes could hamper the IRS’s enforcement efforts.

Related Lawyer: Jeremy H. Temkin

11.08.17 | Articles, Books & Journals

The Impact of Salman v. United States on Downstream Tippee Prosecutions

The Review of Securities & Commodities Regulation

In Salman v. United States, the Supreme Court held that a tipper receives a personal benefit sufficient to establish illegal insider trading when the tipper makes a gift of confidential information to a trading relative or friend. Salman did not address, however, the question of what level of knowledge a downstream tippee must possess of the personal benefit the tipper received in order to be held liable for insider trading. In this article, we address how district courts have analyzed the question of what downstream tippees must know to be held liable for insider trading after Salman and Salman’s continued impact on this question going forward.

Related Lawyers: Brian A. Jacobs

11.08.17 | Articles, Books & Journals

New-Wave Legal Challenges for Bitcoin and Other Cryptocurrencies

Business Crimes Bulletin

The cryptocurrency boom has been met with a fresh wave of regulatory and enforcement efforts by the SEC, DOJ, and beyond. Although these regulatory efforts are intended to address concerns about cryptocurrencies being subject to fraud and manipulation, or being used for money laundering, the agencies' responses complicate the growing use of these new technologies. In this article, we discuss the SEC’s crack down on Initial Coin Offerings, securities fraud liability implications, anti-money laundering efforts with respect to bitcoin and cryptocurrency exchanges, and the international response to the cryptocurrency boom.

Related Lawyers: Robert J. Anello

11.07.17 | Articles, Books & Journals

Limits on the Scope of Honest Services Fraud

New York Law Journal

In recent public corruption cases, courts have addressed one of the most thorny concepts in white-collar criminal law – the scope of honest services mail and wire fraud. In this article, we discuss the Supreme Court’s McDonnell v. United States decision and the decision’s impact on several high-profile prosecutions of New York State politicians. These cases illustrate the continuing challenge of articulating limits on the scope of honest services fraud.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

11.01.17 | Blog Posts

Let the Cyber Wars Begin: Federal Regulators Prepare Their Arsenal

The Insider: White Collar Defense and Securities Enforcement

Federal agencies have begun arming themselves for war against cybercrime. By the nanosecond, the ubiquitous Internet and related technology offer endless opportunities for wrongdoing. Notorious Russian hackers meddled in companies that manufactured and sold voter registration software and voting equipment to influence last year’s Presidential election. In September 2017, credit reporting company Equifax announced that sensitive financial data of over 143 million consumers had been hacked, exposing customers to identity theft. A Brooklyn man has been sued for operating a bitcoin Ponzi scheme to acquire $600,000 in unregistered fraudulent investments. The share prices of publicly traded companies have been manipulated through fake news shared and tweeted on social media. The speed of online innovation and the increase of online engagement makes it increasingly difficult to keep track of the latest digital developments, let alone any potential misuse of such technology. The annual cost of global cybercrime is predicted to double from $3 trillion in 2015 to $6 trillion in 2021. In response, federal regulators have started new units and initiatives to combat misconduct in the cyber world. [...]

Related Lawyer: Robert J. Anello

10.23.17 | Blog Posts

The Role of Publicity in Sentencing

The Insider: White Collar Defense and Securities Enforcement

Should defendants in cases that attract press coverage be given longer sentences than defendants in cases that pass unnoticed? The knee jerk response of anyone familiar with the basic principle of equality under the law would likely be a resounding “no.” And yet, as some recent cases have starkly demonstrated, courts can and do consider a defendant’s level of notoriety as a factor weighing in favor of harsher punishment. [...]

Related Lawyer: Brian A. Jacobs

10.19.17 | Blog Posts

Using Techniques Honed Prosecuting Gangs to Investigate Wrongdoing in the Commodities Markets

The Insider: White Collar Defense and Securities Enforcement

At New York University last month, James McDonald, Director of Enforcement of the Commodity Futures Trading Commission (“CFTC”), announced the CFTC’s publication of an “Updated Advisory on Self Reporting and Cooperation” (“Updated Advisory”). The Updated Advisory supplemented two January 2017 Enforcement Advisories, by “providing additional information regarding voluntary disclosures and the substantial credit companies and individuals can expect from the [CFTC] if they voluntarily disclose misconduct and fully cooperate with the [CFTC’s] investigation.” The January 2017 Advisories, entitled “Cooperation Factors in Enforcement Division Sanction Recommendations for Companies” and “Cooperation Factors in Sanction Recommendations for Individuals” had detailed factors that the Enforcement Division may consider to assess the quality and value of cooperation. But, they offered little insight about precisely what is required to obtain mitigation credit and what companies and individuals who meet the requirements can expect. The Updated Advisory was intended to provide “greater transparency” about what the Enforcement Division requires and what companies and individuals who self-report, cooperate, and remediate can expect. [...]

Related Lawyer: Catherine M. Foti

10.17.17 | Articles, Books & Journals

At the Intersection of Section 1782 Subpoenas and Personal Jurisdiction

New York Law Journal

In the past few years, the U.S. Supreme Court has been remaking the landscape of personal jurisdiction, generally imposing more exacting standards for the assertion of both general and specific jurisdiction. In this article, we discuss the recent decision in Australia and New Zealand Banking Group v. APR Energy Holding, which examines the question of what jurisdictional contacts are necessary to obtain discovery from a nonparty through a subpoena served pursuant to 28 U.S.C. § 1782.

Related Lawyers: , Edward M. Spiro

10.03.17 | Articles, Books & Journals

Proposals for a Comprehensive Federal Conviction Expungement Law

New York Law Journal

Despite years or even decades of law abiding conduct, individuals with a criminal record face extraordinary hurdles in rebuilding their lives because of the significant collateral consequences of their conviction. In the past decade, many state lawmakers have enacted laws providing for expungement or sealing remedies. At the same time, federal legislation has taken a step backwards. In this article, we discuss judicial efforts to address this problem, which federal judges acknowledge requires a solution by Congress.

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

09.21.17 | Articles, Books & Journals

Lawyers: Blow the Whistle at Your Own Risk

New York Law Journal

Over a decade after the IRS’s Whistleblower Office was established, whistleblowing is alive and well. As the number of claims increases, so does the likelihood that attorneys will find themselves in an ethical tangle as they consider whether they can pursue monetary awards for reporting malfeasance by their clients. This article discusses recent decisions addressing the ethical issues that potential attorney-whistleblowers need to consider in deciding whether to pursue remuneration for blowing the whistle on their current or former clients.

Related Lawyer: Jeremy H. Temkin

09.06.17 | Blog Posts

Letter on Insider Trading from a Confused Wall Streeter

The Insider: White Collar Defense and Securities Enforcement

To Whom It May Concern:

I am a conscientious professional investment adviser. For years I have carefully followed legislation, judicial decisions, and news reports regarding the law of insider trading. I make every effort to stay abreast of the latest developments so that I can fulfill my fiduciary obligation to act in the best interest of my clients and optimize their returns while, at the same time, avoiding any violation of the law against trading on inside information. The latest decisions by the United States Supreme Court and the highest federal court that covers the area that includes Wall Street have left me paralyzed with uncertainty. I increasingly am afraid that diligent review, analysis, and investigation on behalf of my clients will land me before the SEC or worse yet a defendant in a criminal case. The law of insider trading has never been defined by Congress and increasingly I have become aware that federal judges cannot agree on what it is. In particular, when determining whether a violation has occurred, courts have been battling over whether when information is shared by an insider, he or she must receive a personal benefit and what constitutes such a benefit. Can someone help me out?! [...]

Related Lawyer: Robert J. Anello

09.05.17 | Articles, Books & Journals

The ‘Right to Control’ Theory in Mail and Wire Fraud Prosecutions

New York Law Journal

The “right to control” theory of mail and wire fraud is one of the most challenging doctrines in white-collar criminal law. In this article, we discuss Judge Loretta A. Preska’s recent decision in United States v. Davis, in which Judge Preska analyzed the Second Circuit’s “right to control” decisions and concluded that a guilty verdict should be set aside. We also discuss practical steps defense counsel should consider when facing a mail or wire fraud prosecution premised on this doctrine.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08.16.17 | Blog Posts

The Manafort Raid and the Privilege Fights To Come

The Insider: White Collar Defense and Securities Enforcement

Last week, multiple media sources reported that as part of Special Counsel Robert Mueller’s Russia inquiry, investigators executed a court-authorized search warrant at the Alexandria, Virginia home of Paul J. Manafort, President Trump’s former campaign chairman. Shortly after these reports surfaced, John Dowd, who represents President Trump in the Russia inquiry, sent an email to at least one Wall Street Journal reporter calling the raid a “gross abuse of the judicial process” more akin to methods “found and employed in Russia not America.” Mr. Dowd also suggested that problems with the raid could lead to a “Motion to Suppress the fruits of the search.” It will likely be many months before a court could be called upon to decide a suppression motion, but Mr. Dowd’s comments give clues as some issues that might arise on such a motion, and also highlight challenges facing the Special Counsel. [...]

Related Lawyer: Brian A. Jacobs

08.15.17 | Articles, Books & Journals

Russian Intrigue Meets the Hearsay Rule

New York Law Journal

The facts behind United States v. Prevezon Holdings were the stuff of spy novels, and indeed, the involvement of Prevezon's Russian lawyer, Natalia Veselnitskaya, only added to the drama surrounding this case. Just days before the case settled, Judge William H. Pauley III, who was to preside over the trial, issued a decision on a motion in limine filed by the government, addressing questions concerning application of the hearsay rule to foreign records the government intended to introduce at trial. In this article, we discuss Judge Pauley’s decision.

Related Lawyers: , Edward M. Spiro

08.01.17 | Articles, Books & Journals

Executing Search Warrants in the Digital Age: 'United States v. Wey'

New York Law Journal

A recent high-profile Fourth Amendment victory for the defense in Southern District of New York case United States v. Wey provides an occasion to assess how courts are applying search and seizure precedents to today's “big data.” In this article, we consider Wey in light of other recent decisions in the Second Circuit. These cases demonstrate that the government’s tendency to use broadly-worded search warrants, combined with uncertainty regarding what meets the Fourth Amendment test of “reasonableness” for off-site reviews of electronic files, continues to raise vexing issues for prosecutors, defense counsel, and courts in white collar criminal cases.

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

07.20.17 | Blog Posts

Second Circuit Sends Shivers Down DOJ’s Spine: Compelled Foreign Testimony Invalidates Prosecution

The Insider: White Collar Defense and Securities Enforcement

Yesterday, a monkey wrench was thrown into the DOJ’s ever-increasing, multi-jurisdictional cooperation in white collar cases. In United States v. Allen, the U.S. Court of Appeals for the Second Circuit held that the prohibition against the use and derivative use of a defendant’s compelled testimony – the Kastigar protections – applied even when the testimony was required by UK regulators in a joint U.S.- UK investigation. Despite prosecutors’ best efforts to avoid their investigation being tainted by statements compelled by UK regulators, the Second Circuit overturned a conviction and dismissed an indictment where a witness had reviewed the defendant’s compelled testimony. Thus, where multiple countries are investigating the same allegations of misconduct, a subject forced to provide evidence in a foreign country cannot have that testimony used in a prosecution against him in the United States – at least in the Second Circuit. Because common U.S. investigation partners, like the UK, regularly utilize compelled testimony in connection with their investigations, the DOJ now has to navigate a minefield when exchanging information with international partners. [...]

Related Lawyers: Robert J. Anello

07.20.17 | Articles, Books & Journals

Innocent Spouses Falling Victim to Jurisdictional Time Bars

New York Law Journal

Recognizing the potential unfairness of holding spouses jointly and severally responsible for tax liabilities, the Internal Revenue Service offers “innocent spouse” relief in limited circumstances. When the IRS rejects a claim for “innocent spouse” status, the requesting spouse has ninety days to seek judicial review of that adverse decision. This article discusses recent cases decided by the United States Courts of Appeals for the Second and Third Circuits holding that taxpayers who miss the 90-day deadline are precluded from obtaining judicial review, even when their failure was due to incorrect advice from the IRS.

Related Lawyer: Jeremy H. Temkin

07.11.17 | Articles, Books & Journals

Victims' Rights and White-Collar Defense

New York Law Journal

In recent years, policy makers have sought to give victims a greater voice in the criminal justice system. On the federal level, victims have been given the right to notice about key developments in criminal cases, consultation about a prosecutor's plea and sentencing decisions, and compensation in the case of financial injury. While victim participation may complicate defense of a white-collar case, it may also provide defense counsel assistance as well. In this article, we discuss federal victims’ rights laws and their implications for white-collar cases.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

07.11.17 | Blog Posts

Chronicle of Disgorgement’s Death Foretold: Kokesh v. SEC

The Insider: White Collar Defense and Securities Enforcement

For several decades, the Securities and Exchange Commission routinely has sought and obtained from the federal courts orders directing defendants to return the ill-gotten gains of their securities law violations. Such disgorgement recoveries have become a billion dollar industry for the SEC. A footnote in Justice Sonia Sotomayor’s recent opinion in Kokesh v. SEC – the agency’s second straight significant loss before the High Court – may foreshadow a view by the Court that disgorgement is not a remedy routinely available to the SEC. [...]

Related Lawyer: Robert J. Anello

06.30.17 | Blog Posts

Does “Meaningful Use” Mean Widespread Abuse? – HHS-OIG’s Review of EHR Incentive Payments

The Insider: White Collar Defense and Securities Enforcement

In 2009, as part of the HITECH Act, the federal government funded an incentive program by which health care providers who implemented and used electronic health records (“EHRs”) for their patients were able to receive significant financial benefits. The incentive program, which provided for potentially substantial payments to medical providers who engage in the “meaningful use” of EHRs, was premised on the view that the jettisoning of paper records, and the adoption and use of electronic medical records, was likely to improve the quality of patient care, improve patient safety, and reduce health care costs. But, from the very outset, entities such as the Government Accountability Office also made note of a darker side to the incentive program – namely, the potential that the program would be subject to fraud and abuse, and the need for significant oversight to ensure the integrity of payments made under the program’s auspices. [...]

Related Lawyer: Robert M. Radick

06.21.17 | Articles, Books & Journals

Corporate FCPA Enforcement in The Era of Trump

Business Crimes Bulletin

The start of a new presidential administration brings along changes to personnel, policies, and enforcement priorities, and during the transition period, counsel to businesses and individuals try to anticipate which way the enforcement wind will be blowing in order to best advise anxious clients. One high-stakes area of enforcement focus, the Foreign Corrupt Practices Act (FCPA), has been subject to much speculation in this regard. In this article, we highlight 5 reasons to think that corporations should continue to commit to FCPA compliance: early signs of the new regime foretell continued zealous enforcement; the limited impact of the FCPA on American companies’ competiveness overseas; enforcement efforts by other countries; expansion of anti-bribery statutes has led to increased cooperative partners for the U.S.; and business reasons alone may encourage strong compliance.

Related Lawyers: Robert J. Anello

06.20.17 | Articles, Books & Journals

Hurdles and Consequences to Asserting the Fifth Amendment in Civil Litigation

New York Law Journal

Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because the finder of fact may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. In this article, we discuss a number of recent decisions from the Southern District of New York addressing when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.

Related Lawyers: , Edward M. Spiro

06.06.17 | Articles, Books & Journals

Erosion of the Corporate Attorney-Client Protection in Europe

New York Law Journal

Corporations operating globally face significant uncertainty regarding their ability to maintain the confidentiality of their counsels’ activities, especially in the context of internal investigations. Recent events, including a raid of outside counsel’s office and a significant U.K. court decision, illustrate a troubling trend. In this article, we discuss why companies and their U.S. law firms must carefully consider the manner in which they conduct internal investigations abroad.

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

05.18.17 | Articles, Books & Journals

Reading Tea Leaves: Justice Gorsuch and Criminal Tax Cases

New York Law Journal

Legal commentators seem to have settled on the view that newly confirmed Supreme Court Justice Neil Gorsuch will fill the seat left by the late Justice Antonin Scalia both literally and as a like-minded successor in jurisprudential spirit. In this article, we note that several of Justice Gorsuch’s opinions from his time on the United States Court of Appeals for the Tenth Circuit suggest that, like Justice Scalia, his views on criminal justice often vary from the “law and order” approach generally associated with judicial conservatives. Specifically, we review Justice Gorsuch’s decision in United States v. Farr, which offers a few clues regarding his thinking on such issues while posing some interesting issues for tax prosecutions, and conclude that only time will tell where Justice Gorsuch will fit on the criminal law spectrum.

Related Lawyer: Jeremy H. Temkin

05.16.17 | Blog Posts

What Crimes Was Comey’s FBI Investigating: Hacking, Campaign Violations, Taxes – or Even Treason?

The Insider: White Collar Defense and Securities Enforcement

The headlines are bursting with speculation about President Trump’s seemingly sudden firing of FBI Director James B. Comey. The administration’s rationale has shifted. Whether Comey was dismissed because the administration was unnerved by his dogged pursuit of the Russian hacking issue, because he mishandled the investigation of Hillary Clinton’s private email server, or because Trump disliked Comey’s recent testimony before the Senate Judiciary Committee, the timing of Comey’s firing – in the midst of the FBI’s investigation of Russian meddling in the recent national election – raises eyebrows and a few questions. This blog does not attempt to answer questions of judgment or politics, but will help shed a light on the various Russian investigation-related crimes Comey and the FBI may have been investigating. [...]

Related Lawyer: Robert J. Anello

05.09.17 | Articles, Books & Journals

How the FCPA Applies to Private Companies

New York Law Journal

In recent years, investigations and prosecutions under the Foreign Corrupt Practices Act (FCPA) have generally involved public issuers of securities in the United States, not private companies. In this article, we address how the FCPA applies to private U.S. companies, discuss recent enforcement activity involving private companies and their employees, and suggest why private companies may receive increasing attention in the future from FCPA enforcement authorities.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

05.01.17 | Blog Posts

A Cloud Over the Microsoft Warrant Case

The Insider: White Collar Defense and Securities Enforcement

Almost a year ago, the Second Circuit held that Microsoft had no obligation to produce to the government—in response to a court-issued warrant—customer emails that were stored on a server located in Ireland. In so ruling, the Second Circuit found that the Stored Communications Act (“SCA”), under which the warrant was issued, cannot be applied extraterritorially, and thus can only be relied on to authorize warrants to seize data stored in the United States. The opinion remains binding law in the Second Circuit, and has been the basis on which other service providers (including Google and Yahoo!) have refused to provide data to federal prosecutors not only in the Second Circuit, but throughout the United States as well. [...]

Related Lawyer: Brian A. Jacobs

04.26.17 | Blog Posts

A Heart-to-Heart from the Hackers: Cyber-Vulnerabilities in Cardiac Devices

The Insider: White Collar Defense and Securities Enforcement

Just over a year ago, our blog took note of a governmental letter that powerfully underscored the dangers of cyberattacks in the healthcare industry. The letter, which then-Senator Barbara Boxer had sent to FBI Director James Comey, discussed the serious risks that hospitals and other institutional health care providers face from cyberattacks, ransomware, and a range of other malicious efforts to infiltrate their networks. Senator Boxer’s letter sought Director Comey’s input on how hospitals in particular could protect themselves from a growing number of instances in which hackers used malware to block access to crucial patient data, and the letter also sought information about the FBI’s response to such threats. As we noted in our blog, Senator Boxer’s letter served a valuable public good – it drove home the growing concerns about cybersecurity among healthcare providers, and the dilemmas that healthcare providers face in assessing whether to make ransom payments in response to a cyberattack. Further, as our prior blog post discussed, Senator Boxer’s letter indirectly served to call attention to the ways in which cybersecurity insurance could provide hospitals with a valuable or even essential means of managing their escalating cybersecurity risks. [...]

Related Lawyer: Robert M. Radick

04.18.17 | Articles, Books & Journals

Under 'Daubert', It Isn't Getting Easier to Find a 'Reliable' Expert Witness

New York Law Journal

Almost 25 years after the Supreme Court's decision in Daubert v. Merrill Dow Pharmaceuticals, recent cases in the Southern District of New York continue to demonstrate the wide latitude that the Daubert standard affords to judges ruling on the admissibility of expert testimony. In this article, we discuss several decisions from the past year that have applied Daubert in circumstances both novel and familiar to varying results.

Related Lawyers: , Edward M. Spiro

04.10.17 | Blog Posts

Will Sexual Orientation Finally Be a Protected Class?

The Insider: White Collar Defense and Securities Enforcement

In a groundbreaking decision in Hively v. Ivy Tech Community College of Indiana, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination and thus prohibited by Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex or national origin . . .” In an 8-3 decision by Judge Diane Wood, the Seventh Circuit overruled its own prior decision and precedent and broke with every other federal appellate court that has ruled on this issue. [...]

Related Lawyer: Catherine M. Foti

04.04.17 | Articles, Books & Journals

Coming Changes to Federal Criminal Discovery Rule?

New York Law Journal

After years of expressing frustration with the barriers to trial preparation in complex criminal cases, the organized defense bar has again called for revisions to Rule 16 of the Federal Rules of Criminal Procedure. Buoyed by a recognition among the judiciary that current practices must come to terms with the proliferation of electronically stored information, and by the Department of Justice's acceptance of the principle that amending the Rule would be useful, an amendment now appears likely. In this article, we highlight issues with the current Rule 16, review the proposals for amendment under consideration, and discuss their potential impact on trial preparation in complex white-collar cases.

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

03.30.17 | Articles, Books & Journals

The Battle over the Scope of Rule 17(c) Subpoenas

Business Crimes Bulletin

White-collar prosecutions often turn on the paper trail. But the playing field is not level — not even close. Whereas the government has virtually unlimited access to business records during a grand jury investigation, the only means by which a white-collar defendant can require the production of business records from a non-party is through a subpoena under Rule 17(c) of the Federal Rules of Criminal Procedure. In our two-part article, we explain the current debate over the reach of Rule 17(c), analyze the first appellate decision to enter that debate, and urge defense counsel to push for a broader reading of Rule 17(c).

Related Lawyers: Curtis B. Leitner, Jodi Misher Peikin

03.16.17 | Articles, Books & Journals

Bribery vs. Extortion: The Deductibility of Illegal Payments

New York Law Journal

The line between legitimate business expenses and commercial bribery can be a fine one, and while businessmen who are prosecuted for having crossed that line are rightfully most concerned with the loss of liberty and stigma associated with a criminal conviction, lawyers and accountants representing them need to be mindful of the tax consequences of their clients’ conduct. This article provides a roadmap for lawyers and accountants to consider when evaluating the tax consequences of payments made to obtain business.

Related Lawyer: Jeremy H. Temkin

03.15.17 | Blog Posts

Trump Not Only Victim of Leaks: Courts Are Handcuffed in Responding to FBI Leaks

The Insider: White Collar Defense and Securities Enforcement

The Trump White House feels besieged by near-constant leaks. The divulged inside stories have ranged from the trivial, such as rumors that President Trump enjoys watching the news in his bathrobe, to the more consequential, such as revelations connecting Trump advisers to Russian intelligence. The resulting atmosphere of suspicion culminated in Trump’s tweets earlier this month alleging that former President Obama ordered the “tapping” of then-candidate Trump’s “wires” at Trump Tower during the Presidential election. [...]

Related Lawyer: Robert J. Anello

03.13.17 | Blog Posts

DOJ Announces It Will Extend FCPA “Pilot Program”

The Insider: White Collar Defense and Securities Enforcement

The Department of Justice (“DOJ”), Fraud Section’s guidance for Foreign Corrupt Practices Act (“FCPA”) investigations and prosecutions, commonly referred to as the “Pilot Program,” will remain in place when the one-year pilot period ends on April 5. The extension was announced on March 10, 2017 by Acting Assistant Attorney General Kenneth A. Blanco in a speech at the American Bar Association’s National Institute on White Collar Crime. Blanco explained that when the Pilot Program expires, the DOJ will evaluate its “utility and efficacy” to determine “whether to extend it, and what revisions, if any, we should make to it” and stated that “[t]he program will continue in full force until we reach a final decision on those issues.” [...]

Related Lawyer: Jonathan S. Sack

03.08.17 | Blog Posts

When is a Tweet an Official Act?

The Insider: White Collar Defense and Securities Enforcement

Twitter has come to play a central role in political discourse. Just last week, during a Supreme Court argument in a First Amendment case, Justice Kagan observed that “everybody uses Twitter”:  In addition to “the President,” Justice Kagan explained, “[a]ll 50 governors, all 100 senators, [and] every member of the House has a Twitter account,” which has made Twitter a “crucially important channel of political communication.” [...]

Related Lawyer: Brian A. Jacobs

03.07.17 | Articles, Books & Journals

FCPA Enforcement Trends: Will They Continue?

New York Law Journal

In recent months the Department of Justice has announced the resolution of a number of Foreign Corrupt Practices Act investigations. This level of enforcement activity reflects increased resources and attention devoted to foreign bribery allegations in recent years as well as a 2016 DOJ initiative to encourage corporate cooperation and voluntary disclosure. In this article, we discuss DOJ’s FCPA "Pilot Program” and several aspects of recent FCPA resolutions, and we suggest that current enforcement trends may continue in the Trump administration.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.21.17 | Articles, Books & Journals

Stricter Standards For Standing

New York Law Journal

Following the U.S. Supreme Court's May 2016 decision in Spokeo v. Robins, courts have been re-examining whether plaintiffs seeking statutory damages, particularly under various consumer protection laws, have Article III standing to pursue their claims. This article discusses how judges in the Southern District of New York are beginning to flesh out this new approach to standing.

Related Lawyers: , Edward M. Spiro

02.17.17 | Articles, Books & Journals

I Sentenced Criminals To Hundreds More Years Than I Wanted To. I Had No Choice.

The Washington Post

This essay critiques federal mandatory minimums, examining both the inherently unfair outcomes they generate for convicts, and the predicament in which these mandatory minimums place our federal district court judges – who are forced to levy penalties they know to be unjust. It was written by associate Peter Dubrowski and Shira A. Scheindlin, a former federal judge in the Southern District of New York.

To view this essay, please click here.

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02.13.17 | Blog Posts

Recent Case Law on the Appointment of SEC Administrative Law Judges

The Insider: White Collar Defense and Securities Enforcement

The Securities and Exchange Commission (“SEC”) brings enforcement actions in two ways: by filing a complaint in federal district court, or by filing an administrative action before an SEC administrative court headed by an SEC administrative law judge (“ALJ”). The SEC has discretion over the jurisdiction in which they will bring the action. [...]

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02.07.17 | Articles, Books & Journals

SEC's View on Statute of Limitations Faces Another Test

New York Law Journal

SEC Takes a Second Bite at Statute of Limitations Apple: Last month, the Supreme Court granted certiorari in Kokesh v. SEC to settle the issue of whether the so-called "fallback" five-year statute of limitations applies to SEC disgorgement claims. This article highlights the federal courts’ ongoing debate about the nature of the disgorgement remedy, and the potential impact of the Supreme Court’s decision on SEC enforcement proceedings.

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

02.03.17 | Blog Posts

Was President Trump’s Decision to Tell Sally Yates “You're Fired” a Retaliatory Employment Action?

The Insider: White Collar Defense and Securities Enforcement

Pursuant to the Whistleblower Protection Enhancement Act (WPEA), signed by President Barack Obama in 2012, U.S. government employees have a statutory right to "blow the whistle" without suffering retaliation. The WPEA protects federal employees who disclose violations of laws, rules, or regulations and mismanagement, except when such disclosures are specifically prohibited by law or required by Executive order to "be kept secret in the interest of national defense or the conduct of foreign affairs." An independent federal agency, the Office of Special Counsel, has the authority to investigate the "prohibited personnel practices" enumerated in the WPEA and also serves as a conduit for evaluating whistleblower disclosures. [...]

Related Lawyer: Catherine M. Foti

01.30.17 | Articles, Books & Journals

Yates Letter v. Yates Memorandum: Which Will We Remember?

Business Crimes Bulletin

Before her last stand refusing to enforce the Muslim Ban and subsequent firing, Sally Quillian Yates was best known for authoring the Yates Memorandum. This policy directive, released over a year ago in apparent response to criticism of the Department of Justice’s (“DOJ”) handling of cases related to the nation’s financial crisis, directed DOJ prosecutors to focus on holding individuals accountable through criminal prosecutions. Today, entities embroiled in criminal investigations continue to pay massive fines and plead guilty to criminal charges, but these investigations have led to few individual convictions. In this article, we discuss the differences between white collar corporate and individual prosecutions, explain how establishing individual criminal liability has proven difficult for prosecutors, and conclude that the Yates Memorandum may not materially alter the landscape. Thus, Yates may be remembered more for her letter refusing to enforce the Muslim Ban as unjust, not for the Yates Memorandum.

Related Lawyers: Robert J. Anello

01.19.17 | Articles, Books & Journals

Tax Enforcement, John Doe Summonses And Digital Currency

New York Law Journal

With the advent of virtual currencies, tax enforcement faces a new threat that has the potential of rendering assets effectively untraceable. In tackling the challenge presented by 21st century financial instruments, the IRS has turned to John Doe summonses, which were an integral part of its offshore banking enforcement program. This article discusses the background of John Doe summonses and their potential use in addressing the financial privacy offered by virtual currencies.

Related Lawyer: Jeremy H. Temkin

01.19.17 | Blog Posts

How Will the New Administration Prosecute Businesses?

The Insider: White Collar Defense and Securities Enforcement

A pervasive sense of uncertainty about America under the President set to be sworn in tomorrow has extended into almost every aspect of life. Perhaps due to his own past and lack of transparency, speculation abounds about potential changes to white-collar prosecution priorities and securities enforcement under a Trump administration. Anticipating what kind of impact a Trump presidency will have on white-collar criminal practice is largely guesswork given the new leader’s tendency towards imprecision. A look at Trump’s statements and actions to date, as well as his appointees, however, may provide some limited insight. [...]

Related Lawyer: Robert J. Anello

01.05.17 | Articles, Books & Journals

'Salman': Addressing Vagueness In Insider Trading Law

New York Law Journal

The Supreme Court's highly anticipated decision in Salman v. United States proved to be anticlimactic. It essentially restated the law of tipper/tippee liability set out in Dirks v. SEC. In one area, however, the Court broke new ground – its discussion of the persistent charge that judicially fashioned insider trading law is too vague to satisfy the requirements of due process. In our latest article, we describe the vagueness arguments made in Salman, explain the Supreme Court's grounds for rejecting these arguments, and suggest potential limitations to the Court's vagueness analysis.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.22.16 | Articles, Books & Journals

Attorneys Beware – Limited Immunity From Defamation Suits

New York Law Journal

When civil litigation turns ugly, it sometimes devolves into allegations of defamation not just between the parties, but against their lawyers as well. In our latest article, we address the parameters of the litigation privilege, and the narrow exceptions that litigants have been able to exploit, as discussed in a pair of recent cases from the U.S. District Court for the Southern District of New York. 

Related Lawyers: , Edward M. Spiro

12.21.16 | Blog Posts

How the Clinton Email Warrant May Have Violated DOJ Policy

The Insider: White Collar Defense and Securities Enforcement

Yesterday at noon, a warrant was unsealed in which a United States Magistrate Judge approved the FBI’s application to search a laptop apparently belonging to Anthony Weiner for any potentially classified emails from Hillary Clinton. Commentators have since raised multiple questions about the warrant, including whether it adequately demonstrated probable cause that Mr. Weiner’s laptop contained evidence of a crime. One question that has not received any attention, however, is whether the DOJ violated its own strict and detailed policy that covers, among other things, search warrants on property belonging to "members of the news media"—a category that surely includes Anthony Weiner, who has worked over the years for multiple news outlets. Had the DOJ followed its own policy, the warrant may never have been approved, or at least may have been delayed until after the election. To the extent the DOJ did not follow its policy, this failure could add substantial fuel to the argument by those who claim that the warrant was a “meritless” attempt by the FBI to influence the 2016 presidential election. [...]

Related Lawyer: Brian A. Jacobs

12.06.16 | Articles, Books & Journals

Government Searches: The Trouble With Taint Teams

New York Law Journal

Over the years, a number of courts and practitioners have criticized the "fox guarding the chicken coop" procedure of allowing a government taint team to try to cull attorney-client privileged materials from seized documents. In this article, we discuss a recent case, U.S. v. DeLuca, that illustrates just what these skeptical courts and counsel have been concerned about.

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

11.17.16 | Articles, Books & Journals

The Ever-Expanding Scope of the IRS Obstruction Statute

New York Law Journal

The “Omnibus Clause” of 26 U.S.C. § 7212(a) criminalizes conduct that “obstructs or impedes . . . the due administration of” the Internal Revenue Code. In recent years, the government has used the Omnibus Clause to reach acts beyond those that obstruct IRS audits or investigations, and last month, the U.S. Court of Appeals for the Second Circuit decided United States v. Marinello in which it joined other courts of appeals in concluding that § 7212(a) can be violated without proof that there was a pending IRS investigation or proceeding, let alone that the defendant was aware of the IRS’s activity. This article discusses Marinello and its expansive reading of §7212(a).

Related Lawyer: Jeremy H. Temkin

11.09.16 | Blog Posts

Can A President (Trump) Be Prosecuted Based Upon Allegations Of Past Misconduct?

The Insider: White Collar Defense and Securities Enforcement

At long last, it’s November 9, and the nation has an answer to the question of who will serve as its next President. Although this should bring a measure of relief, a feeling of uncertainty remains. What lies ahead for our nation under the leadership of Donald Trump, billionaire reality television star who invented the chant “Lock Her Up”? What happens to unresolved allegations of federal tax liability and sexual assault? Does the theoretical specter of possible indictment and criminal trial or impeachment loom for President-elect Trump? [...]

Related Lawyer: Robert J. Anello

11.01.16 | Blog Posts

A Circuit Split Over 1,000 Words

The Insider: White Collar Defense and Securities Enforcement

Two weeks ago, as reported by Howard Bashman at How Appealing, the Second Circuit joined the Seventh, Ninth, and Federal Circuits on an issue that is dividing the Courts of Appeals:  Whether to reduce the word limits for federal appellate briefs by 1,000 words.  In particular, these circuits have all indicated their intention to opt out of a change to the Federal Rules of Appellate Procedure, which otherwise goes into effect on December 1 this year, reducing the word limit for principal briefs on appeal from 14,000 to 13,000 words.  As mundane as this dispute may sound, the fact that these particular circuits—some of the country’s busiest—have gone to the trouble to deviate from the impending rule change in order to continue to allow for longer briefs deserves careful attention for what it may signal. [...]

Related Lawyer: Brian A. Jacobs

11.01.16 | Articles, Books & Journals

False Claims and Mail and Wire Fraud: Implications of 'Universal Health'

New York Law Journal

This past term, the Supreme Court took an expansive view of liability for "implied certifications” in the context of civil claims under the False Claims Act. In this article, we discuss how the Supreme Court’s broad theory of liability under the FCA might be applied to criminal prosecutions for “omissions” under the mail and wire fraud statutes.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

10.18.16 | Articles, Books & Journals

Cautionary Tales When Communicating With Public Relations Consultants

New York Law Journal

Lawyers often retain media or public relations consultants to assist in their representation of clients in high-profile litigations or investigations, generally taking steps to attempt to protect their communications with these consultants from disclosure. In this article, we discuss a recent Southern District of New York decision ordering disclosure of litigation-related communications with a public relations firm.

Related Lawyers: , Edward M. Spiro

10.04.16 | Articles, Books & Journals

Questionable Extraterritorial Extension of Foreign Corrupt Practices Act

New York Law Journal

One of the most significant areas of U.S. law enforcement's extraterritorial expansion has been the Foreign Corrupt Practices Act (FCPA), a niche notable for untested legal theories because of the dearth of cases that actually are litigated. Now, however, in United States v. Hoskins, the U.S. Court of Appeals for the Second Circuit will determine the validity of prosecutors’ use of conspiracy and accomplice liability theories to expand their extraterritorial reach even beyond that of the underlying FCPA statute. In this article, we discuss Hoskins and the likely impact the Second Circuit’s decision will have beyond FCPA enforcement efforts.

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

10.03.16 | Blog Posts

Ethics Advice from Law Firms’ In-House General Counsels Need Not Be Disclosed to Clients

The Insider: White Collar Defense and Securities Enforcement

During the course of representing clients, lawyers often encounter ethical conundrums not easily solved without analyzing the rules governing the practice of law in their jurisdiction. There is a continuum of the means by which lawyers seek such advice. On one end, they confer informally with their partners or co-counsel. On the other end, lawyers retain ethics specialists from outside their firms. In the middle, firms formally designate an “in-house” counsel responsible for advising the firm’s lawyers on ethics and other issues that may create liability for the firm. From the perspective of maintaining privilege over these types of communications, casual conversations are extremely risky. Consulting outside counsel is the safest route, but for financial reasons and for convenience, many lawyers may believe that the best course of action is consulting their firm’s formally designated “in-house” counsel. However, the dangers of this approach were highlighted with the decision by a New York trial judge in December 2014 ordering the disclosure of ethics advice given to three attorneys by their firm’s in-house general counsel. Although that decision has been reversed by the Appellate Division, First Department, a review of both decisions is instructive for attorneys deciding when and how to seek advice on the course of action to take to comply with their ethical obligations. [...]

Related Lawyer: Catherine M. Foti

09.28.16 | Blog Posts

Prosecutions from the Financial Crisis: When Is It Safe to Come Out of the Woods?

The Insider: White Collar Defense and Securities Enforcement

Florian Homm, a German hedge fund manager prosecuted by the United States for wrongdoing in connection with the financial crisis, fled Europe in 2008 under cover of darkness on a private plane with cash stuffed in his underwear. He hid out in South America for five years – the length of the statute of limitations generally applicable to most United States federal criminal cases. When he emerged and trumpeted his return to high society in 2013, believing that the statute of limitations on any possible United States criminal claims against him had run, he was arrested in Italy on U.S. federal fraud charges. [...]

Related Lawyer: Robert J. Anello

09.23.16 | Articles, Books & Journals

Fordham Law Review, Volume 85, Issue 1 — A Chapter on White Collar Crime

On September 23, 2016, Fordham Law Review published a special edition, Volume 85, Issue 1, in connection with the U.S. Court of Appeals for the Second Circuit’s 125th Anniversary. In honor of the celebration, Morvillo Abramowitz partner Robert J. Anello and associate Miriam L. Glaser contributed a chapter on white collar crime. Their article addresses six different areas of white collar law and procedure, which showcase the Second Circuit’s role as the nation’s compass in white collar criminal matters.

Click here to read full article.

Related Lawyers: Robert J. Anello

09.15.16 | Articles, Books & Journals

'Greenfield': Act of Production Doctrine Is Alive and Well

New York Law Journal

Over the past five years, eight Circuit Courts of Appeals have held that the “required records” doctrine precludes taxpayers from relying on the Fifth Amendment privilege against self-incrimination to avoid production of certain offshore account records. In this article, we discuss a recent Second Circuit decision that serves as an instructive reminder of the limits of the required records doctrine and the continuing importance of the Fifth Amendment’s act of production doctrine.

Related Lawyer: Jeremy H. Temkin

09.06.16 | Articles, Books & Journals

Insider Trading Among Family Members and the Limits of 'Newman'

New York Law Journal

In the closely-followed case of United States v. Sean Stewart, the U.S. Attorney’s Office for the Southern District recently prevailed in its first insider trading trial since the Second Circuit’s landmark decision in United States v. Newman. The Stewart case was a family drama, as the government accused an investment banker of tipping his father about impending deals, and the defendant argued that his father betrayed a son’s trust by trading based on their discussions. In our latest article, we analyze the Stewart case and suggest that Newman has not changed all that much in tipper/tippee cases involving family members.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08.18.16 | Articles, Books & Journals

Iran Sanctions: What’s Old Is New Again

Business Law Today

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08.17.16 | Articles, Books & Journals

Big Firm/Small Firm — Size Matters For Attorney Disqualification

New York Law Journal

When it comes to imputing conflicts of interest, size really does matter. In our latest article, we discuss two recent decisions of the U.S. District Court for the Southern District of New York highlighting challenges facing small and large firms in conducting conflict checks and integrating lateral partners into law firms.

Related Lawyers: Edward M. Spiro

08.10.16 | Articles, Books & Journals

Collecting Taxes From Convicted Defendants

New York Law Journal

At the conclusion of a criminal tax case, a convicted defendant is rightfully most concerned with the prospect of incarceration. There are, however, other consequences of a conviction and, in federal criminal tax cases, the financial ramifications are complicated by the potential for a subsequent civil proceeding brought by the Internal Revenue Service seeking taxes, interest and penalties far beyond what was addressed in the criminal case. This article discusses cases that highlight these issues, and concludes that practitioners need to be cognizant of the financial consequences of tax convictions.

Related Lawyer: Jeremy H. Temkin

08.04.16 | Articles, Books & Journals

More Bridgegate Fallout: Revealing Unindicted Co-Conspirators?

New York Law Journal

The so-called Bridgegate scandal, in which New Jersey Governor Chris Christie's administration allegedly closed entrance lanes to the George Washington Bridge in September 2013 to create traffic jams in retribution for the mayor of Fort Lee's failure to endorse Christie, already has had a significant impact on a number of prominent careers, and perhaps even on our national politics. In this article, we discuss the recently argued appeal of a demand by the media for disclosure of the names of unindicted co-conspirators in the pending federal prosecution of two top Christie associates, and the possible influence the appeal may have on courts' future deference to the reputational interests of individuals implicated but not charged in prominent investigations.

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

08.03.16 | Blog Posts

The Microsoft Warrant Case: Unintended Consequences of the Second Circuit's Ruling

The Insider: White Collar Defense and Securities Enforcement

In a long-awaited ruling in a case in which the government had served a warrant on Microsoft demanding the production of customer emails, the Second Circuit held in July that Microsoft had no obligation to produce customer emails because they were stored on a server located in Ireland. Some privacy groups cheered the decision, while others cautioned that the opinion’s focus on the location where data is stored could have negative consequences for privacy rights and the internet generally, as it could make user data more easily obtainable when the relevant servers are located in countries that may impose less stringent safeguards than exist in the U.S. Aside from privacy concerns, others warned the opinion could make it harder for law enforcement to investigate criminal activity. For example, Law Professor Orin Kerr wrote in a tweet: “Want to stymie U.S. law enforcement? Store your data in the cloud fragmented over many locations outside U.S.” And, in a concurring opinion, Judge Lynch urged Congress to take action to modernize the law, a call echoed by commentary following the decision. [...]

Related Lawyer: Brian A. Jacobs

07.14.16 | Blog Posts

SCOTUS Quid Pro Quo Analysis in McDonnell May Broadly Affect Bribery and Insider Trading Prosecutions

The Insider: White Collar Defense and Securities Enforcement

Last month’s decision from the Supreme Court in McDonnell v. United States takes federal prosecutors to task for applying federal criminal corruption laws in too broad a manner. The Court’s decision makes clear that distasteful or offensive conduct does not necessarily rise to the level of criminality. The Court’s insistence on a “specific and focused” benefit suggests that the government may have to rethink prosecutions ranging from all forms of bribery as well as insider trading. [...]

Related Lawyer: Robert J. Anello

07.12.16 | Blog Posts

Recent Trials Highlight DOJ's Challenges in Prosecuting Individuals for Corporate Misconduct

The Insider: White Collar Defense and Securities Enforcement

Since the 2008 financial crisis, the Department of Justice has faced criticism for not aggressively prosecuting individuals and companies for alleged wrongdoing. The Department has acknowledged and addressed this criticism in speeches and policy statements, notably the September 2015 Yates Memorandum, which declared a heightened commitment to prosecuting individuals for white-collar crimes and, as I have written elsewhere, a heightened expectation of corporate cooperation in the investigation of employee conduct. [...]

Related Lawyer: Jonathan S. Sack

07.07.16 | Articles, Books & Journals

Implications of 'Countrywide' for Mail and Wire Fraud Prosecutions

New York Law Journal

Prosecutors tend to interpret white-collar criminal statutes expansively, and sometimes courts push back. In this article, we discuss the Second Circuit’s decision reversing the $1.2 billion judgment against Bank of America’s Countrywide mortgage unit, and explain how a relatively obscure principle of statutory interpretation, the “common law canon,” led to the Second Circuit’s unexpected decision.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.21.16 | Articles, Books & Journals

Requirements for Invoking the Common Interest Doctrine

New York Law Journal

Attorneys and their clients often rely on the “common interest” doctrine to shield from disclosure communications among allied parties and their counsel. Although invocation of the common interest doctrine is seldom challenged through litigation in the Southern District of New York, its contours are not as well-defined as many lawyers assume. This article discusses the requirements for the invocation of the common interest doctrine, highlights two recent decisions, and touches on the aspects of the doctrine that remain to be defined.

Related Lawyers: , Edward M. Spiro

06.09.16 | Articles, Books & Journals

White-Collar Practitioner’s Guide to the Supreme Court’s Term

New York Law Journal

The Supreme Court’s 2015 Term promises significant developments for the white-collar bar. The court already has issued three decisions that are noteworthy for white-collar practitioners, with the most significant likely yet to come. In this article, we discuss the Supreme Court's recent white-collar decisions as well as cases to be decided in the upcoming year, and consider the impact of Justice Antonin Scalia’s absence.

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

06.01.16 | Blog Posts

Insider Trading, Official Corruption, and Their Common Roots in Fraud

The Insider: White Collar Defense and Securities Enforcement

Insider trading and official corruption prosecutions—two of the cornerstones of recent white-collar enforcement efforts by the Department of Justice—have both generated sufficient doctrinal confusion to land them on the Supreme Court’s docket this year and next. This past April, the Court heard the appeal of former Virginia Governor Bob McDonnell from his corruption conviction, and next term, the Court is set to hear Bassam Salman’s appeal from his insider trading conviction. On the surface, these cases have little in common: McDonnell concerns what constitutes a sufficient “official action” to trigger criminal liability under anti-corruption laws, and Salman concerns what constitutes a sufficient “personal benefit” to trigger criminal liability under insider trading precedent. But beneath the surface, the legal doctrines at issue are related, in that both official corruption and insider trading cases are rooted in theories of fraud. Further, one of the fundamental principles of fraud—that a material misrepresentation is an element of the crime—could provide important guidance as to how these cases and others might be resolved. [...]

Related Lawyer: Brian A. Jacobs

05.23.16 | Articles, Books & Journals

Accessing Records With Bank of Nova Scotia Summonses

New York Law Journal

In a recent interview, Acting Assistant Attorney General Caroline D. Ciraolo described the Tax Division’s continuing pursuit of individuals believed to have evaded their U.S. tax obligations through offshore accounts. Among other things, Ms. Ciraolo noted that, in the wake of the DOJ’s Swiss Bank Program, the Tax Division’s civil trial attorneys were seeking to enforce Bank of Nova Scotia summonses served on U.S branches of foreign banks. This article discusses the authority supporting the use of such summonses to avoid foreign bank secrecy laws and the implications of so-called Bank of Nova Scotia summonses looking forward.

Related Lawyer: Jeremy H. Temkin

05.10.16 | Articles, Books & Journals

When Do Business Negotiations Cross the Line and Become Fraud?

New York Law Journal

The mail, wire and securities fraud statutes have a wide but not unlimited reach. An area of particular controversy is the application of these statutes to arm’s length business negotiations. In this article, we discuss several recent appellate decisions in which business negotiations have given rise to criminal fraud charges, and suggest that the line between acceptable negotiation and fraud warrants further judicial clarification.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

05.06.16 | Blog Posts

FCPA Pilot Program: Missing the Big Picture

The Insider: White Collar Defense and Securities Enforcement

For decades, the government has been trying to incentivize companies to self-report illegal activity by dangling the carrot of reduced punishment. The Justice Department’s one-year Foreign Corrupt Practices Act “pilot program,” announced on April 5, 2016, is the latest iteration of this enforcement technique. Although a valiant effort to formalize a practice known to white collar practitioners, the program does not address some of the more significant variables that are of importance to corporate decision makers. [...]

Related Lawyer: Robert J. Anello

04.20.16 | Articles, Books & Journals

Service of Process by Email on Defendants Located Outside the U.S.

New York Law Journal

A plaintiff seeking to serve a defendant located overseas can face substantial, sometimes insurmountable logistical challenges. In this article, we discuss several recent Southern District of New York decisions in which plaintiffs, frustrated by elusive defendants or uncooperative foreign governments, have been permitted to serve defendants through email under Federal Rule of Civil Procedure 4(f)(3).

Related Lawyers: Edward M. Spiro

04.14.16 | Blog Posts

Ransomware, Cyberattacks, and Hacking in the Health Care Industry: Lessons from a Letter to the FBI

The Insider: White Collar Defense and Securities Enforcement

The last several weeks have brought a host of alarming revelations regarding the vulnerability of some of the most confidential data that corporations and legal entities maintain on their servers. Most notably, the story of the so-called “Panama Papers” continues to attract substantial media attention, as the theft of approximately 2.6 terabytes of data from the Panamaian law firm Mossack Fonseca, and its disclosure to the International Consortium of Investigative Journalists, has already caused the resignation of one international leader and threaten the fates of several more. Perhaps less provocative, but no less significant, is a recent Wall Street Journal article reporting that hackers illegally accessed the computer networks at some of the most respected and prestigious law firms in the United States, apparently for the purpose of stealing confidential information that in turn can facilitate insider trading. [...]

Related Lawyer: Robert M. Radick

04.06.16 | Articles, Books & Journals

Rise of ABA Task Force’s ‘Shadow Sentencing Guidelines’

New York Law Journal

Because the federal sentencing guidelines applicable to fraud cases are widely acknowledged to be broken and dysfunctional, particularly in high-loss cases, sentencing judges may increasingly seek other sources to help guide their discretion. In this article, we discuss the thoughtful alternative framework offered by a blue-ribbon panel of judges, law professors and practitioners, and highlight recent court decisions applying those “shadow guidelines.”

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

04.05.16 | Blog Posts

Why Do Federal Agents Still Take Interview Notes by Hand?

The Insider: White Collar Defense and Securities Enforcement

Anyone who has attended a law school lecture in the last decade knows this sight: row after row of students typing on laptops, each taking down a nearly verbatim transcript. At the same time, anyone who has attended a witness interview—a proffer—in a federal criminal investigation in the last decade knows this sight: a group of Assistant U.S. Attorneys and law enforcement agents, all asking questions, while a single agent takes down occasional notes by hand on a yellow pad. Student notes can impact grades; agent notes can put people in jail. Yet the typed student notes will almost invariably be more complete than the handwritten agent notes. Why are law students taking better notes than federal agents? [...]

Related Lawyer: Brian A. Jacobs

03.28.16 | Blog Posts

Charging Too Many Counts Hurts Prosecutions

The Insider: White Collar Defense and Securities Enforcement

In a recent criminal case in New York County in which I was involved, the District Attorney’s Office charged one of the defendants with 106 counts – 105 felonies and one misdemeanor (two other defendants were charged with over 100 counts each). The case was a complex fraud case and the prosecution charged violations of five different statutes: (1) scheme to defraud in the first degree (one count), (2) grand larceny in the first degree (15 counts), (3) falsifying business records in the first degree (88 counts), (4) the Martin Act (the New York securities fraud statute) (one count), and (5) conspiracy in the fifth degree (one count – a misdemeanor). [...]

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03.23.16 | Articles, Books & Journals

DOJ Tax Division Today: Interview With Acting Assistant Attorney General

New York Law Journal

Early last year, after almost two decades in private practice, Caroline Ciraolo joined the Tax Division of the Department of Justice, and she has served as the Acting Assistant Attorney General since February 25, 2015. In that capacity, she leads the DOJ’s civil and criminal tax enforcement efforts. In this article, Ms. Ciraolo discusses the DOJ’s Swiss Bank Program, the Tax Division’s commitment to offshore enforcement and its challenges going forward.

Related Lawyer: Jeremy H. Temkin

03.02.16 | Articles, Books & Journals

Justice Scalia’s Approach to Textualism in White-Collar Law

New York Law Journal

The late Justice Antonin Scalia was the leading expositor of textualist methodology over the last several decades. Whatever one’s view of textualism and of Justice Scalia, every judge and lawyer (for the government and the defense) must now reckon with the precise language of the statute at issue and be prepared to analyze the relevant words of the statute in context. In light of Justice Scalia’s recent death and the ongoing debate over his judicial philosophy, this article reflects upon the Justice’s influence on the interpretation of white-collar statutes and highlights the significant impact of his textualist approach.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.18.16 | Articles, Books & Journals

A Smaller World, but Personal Jurisdiction Still Matters

New York Law Journal

When the Supreme Court decided Daimler AG v. Bauman two years ago, it effectively re-wrote the rules on personal jurisdiction, abandoning the “continuous and systematic” contacts inquiry for general jurisdiction. Daimler announced a new rule, providing that only in “an exceptional case” could a corporation’s operations in a state be so substantial as to subject it to general jurisdiction other than where it is incorporated or has its principal place of business. This article discusses a number of recent decisions from the Southern District of New York that illustrate the sea change wrought by Daimler on New York’s personal jurisdiction jurisprudence.

Related Lawyers: , Edward M. Spiro

02.17.16 | Blog Posts

GSK and the U.K.’s Competition and Markets Authority: A New Agency Arrives in Health Care Enforcement

The Insider: White Collar Defense and Securities Enforcement

It does not take much these days to notice that law enforcement has gone global. The transnational nature of prosecutions, enforcement actions, and regulatory proceedings can be seen in a host of recent cases. The prosecution of the FIFA scandal, for example, involves not just the U.S. Department of Justice but also the active participation of the Swiss authorities, and the governments of Costa Rica and Colombia have recently announced their own independent investigations. Similarly, the alleged manipulation of interbank lending rates has led to prosecutions by the United Kingdom’s Serious Fraud Office and the U.S. Department of Justice, as well as actions by a less well-known enforcement agency, Japan’s Financial Services Agency. And as this blog noted over two years ago, the Chinese Ministry of Public Security led an investigation into Glaxo Smith Kline’s alleged bribing of officials and doctors to utilize the company’s drugs, which ultimately resulted in a $500 million corporate fine and a suspended sentence for a Glaxo executive who otherwise would have been relegated to a Chinese prison. [...]

Related Lawyer: Robert M. Radick

02.10.16 | Blog Posts

Non-Prosecution Agreements: Reserved for VIPs?

The Insider: White Collar Defense and Securities Enforcement

Should individuals who cooperate with the government in high-profile cases get better deals than individuals who cooperate in cases that do not make the headlines? The rules laid out in the Department of Justice’s U.S. Attorney’s Manual suggest that the answer—at least in the government’s view—is “yes.” [...]

Related Lawyer: Brian A. Jacobs

02.03.16 | Articles, Books & Journals

Potential Impact of Supreme Court’s Upcoming Political Quid Pro Quo Case

New York Law Journal

The Supreme Court's grant of certiorari in the highly-publicized case of former Virginia Governor, Robert McDonnell, to examine the contours of a quid pro quo arrangement under federal law will have an impact on more than just federal political corruption prosecutions. A number of other federal criminal statutes, including the Anti-Kickback Enforcement Act and the Foreign Corrupt Practices Act, include a quid pro quo requirement. In this article, we discuss the McDonnell case and its implications.

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

01.26.16 | Articles, Books & Journals

Protecting Privileged Documents from the IRS

New York Law Journal

Before executing complicated financial transactions, sophisticated taxpayers frequently seek advice from lawyers and accountants. These professionals will often prepare detailed written analyses of the likely tax consequences of the transactions under consideration, which may be shared with counterparties to the transactions. In auditing tax returns reporting the transactions in question, the Internal Revenue Service may seek copies of the analyses from the counterparties, leaving the taxpayers to argue that sharing the materials did not constitute a waiver of either the attorney-client privilege or work product doctrine. This article discusses two recent decisions by the United States Court of Appeals for the Second Circuit reversing district court decisions rejecting assertions of privilege.

Related Lawyer: Jeremy H. Temkin

01.20.16 | Blog Posts

Mixed Messages When Courts Issue a Stern Warning to Prosecutors

The Insider: White Collar Defense and Securities Enforcement

Much has been written over the past few years about prosecutors’ violations of Brady v. Maryland, the Supreme Court case which held that prosecutors must turn over exculpatory material to the defense in time for the defense to use such material. There is a controversy about whether such Brady violations are an epidemic or an aberration. Often, litigation over Brady violations will focus on whether the violation was deliberate or accidental, although Brady violations occur even when the prosecutor acts in good faith. [...]

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01.15.16 | Blog Posts

LinkedIn for Lawyers: Newly Issued Ethical Guidance Makes Social Media Use Less Risky

The Insider: White Collar Defense and Securities Enforcement

The ethics guidance interpreting "Attorney Advertising" rules in the social media context continues to evolve, but this time the evolution appears to be for the better, taking into account the realities of the growing use of social media. As you may recall, early last year, the New York County Lawyers Association ("NYCLA") weighed in on the ethical implications for lawyers using LinkedIn and suggested that attorneys using the self-proclaimed “World’s Largest Professional Network” needed to beware that their posts on that site, even the most casual, did not run afoul of the attorney advertising rules. Now, however, a recently published Formal Opinion of the Committee on Professional Ethics of the Association of the Bar of the City of New York ("City Bar") has called into question the scope and applicability of the NYCLA opinion, recognizing that use of ethic rules developed for a pre-social media world in a post-social media context may be akin to attempting to fit a square peg into a round hole. As the City Bar acknowledged: the current attorney advertising rules "defy easy extension to the digital world and, in particular, to social media content." The difficulty of applying the rules of ethics to lawyers' social media activities, however, has not stopped lawyers from using social media websites -- particularly LinkedIn -- for professional self-promotion. The new City Bar opinion, however, sets forth a test that might make it easier for attorneys to navigate their responsibilities while continuing to document their achievements, both personal and professional on the internet. [...]

Related Lawyer: Catherine M. Foti

01.13.16 | Blog Posts

Added Penalties for Worker Safety Violations: The Other Yates Memorandum

The Insider: White Collar Defense and Securities Enforcement

In September 2015, Department of Justice Deputy Attorney General Sally Quillian Yates issued a memorandum instructing federal prosecutors to step-up individual prosecutions for corporate wrongdoing. The much-discussed “Yates Memorandum” was issued in response to criticism that federal prosecutors had been lax in prosecuting individual executives for crimes committed during the 2008 financial crisis and has garnered a lot of attention from practitioners and commentators. White-collar lawyers and their corporate clients also should be aware of the “other” Yates Memorandum quietly issued at the end of 2015, announcing that federal prosecutors will look for ways to charge a variety of felonies in routine worker safety cases to take advantage of the greater penalties available under environmental and other criminal laws. [...]

Related Lawyer: Robert J. Anello

01.06.16 | Articles, Books & Journals

Deferred Prosecution Agreements in Decline? Enforcement Implications

New York Law Journal

In recent years, the government has relied on deferred prosecution agreements, or DPAs, to resolve many investigations of companies, often without charges being filed against high-level employees. This has led to criticism of the Department of Justice. In this article, we discuss the recent Yates Memorandum, which sets out the Department of Justice’s new policy to hold more individuals responsible for corporate wrongdoing. We explain that the policy could have a significant impact on white-collar enforcement – and possibly lead to excesses associated with prior Department of Justice policies.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

12.31.15 | Articles, Books & Journals

The Ferguson v. JONAH Verdict and a Path Toward National Cessation of Conversion Therapy

Northwestern University Law Review

The Ferguson v. JONAH Verdict and a Path Toward National Cessation of Conversion Therapy, 110 NW. U. L. REV. ONLINE 77 (Dec. 31, 2015).

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12.16.15 | Blog Posts

United States v. Bert: The Second Circuit’s Newfound Need for Speed?

The Insider: White Collar Defense and Securities Enforcement

In September 2015, a divided panel of the Second Circuit took the drastic step of ordering the reversal of defendant Raheem Bert’s conviction for firearms offenses and the dismissal of his indictment with prejudice due to an inadvertent violation of the Speedy Trial Act.* The panel’s decision, written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall—over a dissent by Circuit Judge Dennis Jacobs—explained this result by referencing the need to vindicate the Speedy Trial Act’s “purpose of expeditiously bringing criminal cases to trial,” and found that “[b]arring reprosecution in this case will have a more positive and substantial impact upon the administration of justice—and most certainly on improved administration of the Speedy Trial Act—than would permitting the prosecution to proceed.” [...]

* Update: On February 9, 2016, subsequent to the publication of this blog post, the Second Circuit withdrew its original opinion in United States v. Bert and issued a new opinion. Just as in the original opinion, Judge Pooler wrote for herself and for Judge Hall, while Judge Jacobs dissented. In this new opinion, however, instead of taking what my original post called the “drastic step” of ordering the reversal of Bert’s conviction and the dismissal of his indictment with prejudice, the majority took the more modest step of remanding Bert’s case so that the district court could make additional factual findings regarding the speedy trial delay. Nevertheless, as Judge Jacobs highlights in his dissent, in many respects, the majority’s instructions to the district court to make additional factual findings go beyond what had previously been legally required, and warrant close attention by counsel in future cases.

Related Lawyer: Brian A. Jacobs

12.15.15 | Articles, Books & Journals

Employer’s Privilege Trumps Employee’s Advice-of-Counsel Defense

New York Law Journal

This article discusses U.S. District Judge Jesse M. Furman’s decision in United States v. Wells Fargo Bank, which explores the clash of interests between an employee who wishes to invoke an advice-of-counsel defense based on advice rendered by the employer’s attorney, and the employer who controls and is not willing to waiver the attorney-client privilege. In a case of first impression in the Second Circuit, Judge Furman landed squarely on the side of the employer, holding that a corporation cannot be forced to disclose privileged communications, even if those communications would provide a complete defense to one of its employees—at least in the context of a civil dispute.

Related Lawyers: Edward M. Spiro

12.10.15 | Blog Posts

Latest International Assault on Attorney-Client Privilege Causes Headaches for Corporations' Lawyers

The Insider: White Collar Defense and Securities Enforcement

When dealing with international investigations, counsel for corporations must navigate a variety of issues relating to the attorney-client privilege. By now, many experienced white-collar lawyers are aware of the vagaries of the rules applicable to in-house counsel (in many European jurisdictions, the privilege does not apply to communications with them), but recent pronouncements by United Kingdom authorities prodding companies to forego the protection of the privilege in connection with internal investigations have introduced a new twist into the mix. The approach to the corporate attorney-client privilege taken in the United Kingdom is symptomatic of a relatively negative view of the privilege articulated by many European regulators and courts. [...]

Related Lawyer: Robert J. Anello

12.02.15 | Articles, Books & Journals

'Spoofing'—the New Frontier For Criminal Prosecution?

New York Law Journal

Even without its catchy name, the relatively new crime of “spoofing” would seem to appeal to prosecutors seeking to tap into the populist desire for prison time for perceived financial chicanery and the view that high-speed trading has rigged the markets against regular participants. Not surprisingly, therefore, the conviction last month in United States v. Coscia, the first criminal trial on spoofing charges, has generated a good deal of attention. In this article, we discuss the Coscia trial and what it portends for future prosecutions in the realm of market manipulation.

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

11.19.15 | Articles, Books & Journals

The Economic Substance Of Foreign Tax Credits

New York Law Journal

U.S. taxpayers pay taxes on all of their income, regardless of where it is earned. Congress has recognized that this basic principle of the Internal Revenue Code may result in “double taxation” of income earned outside the United States, and the Code provides a dollar-for-dollar credit reducing a taxpayer’s U.S. liabilities by the amount of foreign taxes paid. In recent years, the government has challenged attempts by corporate taxpayers to utilize foreign tax credits generated through complex transactions. This article discusses recent decisions by several Circuit Courts of Appeals addressing arguments that credits should be disallowed under the common law economic substance doctrine.

Related Lawyer: Jeremy H. Temkin

11.04.15 | Articles, Books & Journals

Insider Trading After ‘Newman’—What’s Left to Resolve?

New York Law Journal

The Second Circuit’s decision in United States v. Newman reshaped the law of insider trading. Now that the Supreme Court has declined to review Newman, this article explores key issues that Newman left unresolved. We consider recent efforts by defense counsel to capitalize on Newman and other potential arguments based on the rule of lenity and separation of powers. We also address calls for insider trading legislation by two prominent Southern District judges.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

2015 | Articles, Books & Journals

Commercial Litigation in New York State Courts — Chapter on White Collar Crime

Partner Robert J. Anello recently authored  “White Collar Crime,” a chapter in the highly regarded treatise Commercial Litigation in New York State Courts, Fourth Edition. The treatise is a joint venture of Thomson Reuters and the New York County Lawyers’ Association and features the work of experts authors, including some of the best commercial litigators in New York.

Related Lawyer: Robert J. Anello

10.22.15 | Blog Posts

Upcoming Federal Sentencing Reform Offers Little Benefit for White Collar Defendants

The Insider: White Collar Defense and Securities Enforcement

Likely to sate the public’s appetite to punish perpetrators of financial crimes, in recent years Congress and the United States Sentencing Commission (USSC) have created a scheme where individuals convicted of white collar crimes serve long sentences and, thereafter, are saddled with a lifetime of disabilities that often are out of proportion to the venality of their conduct or the legitimate goals of our criminal justice system. For years, the length of sentences in white collar cases largely has been determined by the United States Sentencing Guidelines almost-singular focus on “loss” as the key factor in economic crimes, which obscures the myriad other factors that affect a defendant’s true culpability in an individual case and often results in unduly punitive results. In some cases, relatively low-level and ministerial employees faced life sentences in prison because the guidelines did not properly account for their role in the scheme. In others, defendants faced decades-long sentences for activity that was more “farcical than dangerous” simply because the “intended loss” of their “ridiculous” scheme numbered in the billions of dollars. [...]

Related Lawyer: Robert J. Anello

10.21.15 | Articles, Books & Journals

2015 Amendments to Federal Rules of Civil Procedure

New York Law Journal

Significant amendments to the Federal Rules of Civil Procedure will take effect on Dec. 1, 2015, absent congressional action. In this article, we discuss these proposed amendments.

Related Lawyers: , Edward M. Spiro

10.06.15 | Articles, Books & Journals

Latest Approach on Prosecuting Individuals for Corporate Misconduct

New York Law Journal

Move over Holder, Thompson, McNulty, and Filip and make room for Yates. Taking its place in the parade of guidelines issued by Department of Justice leadership on the topic of policing corporate malfeasance comes a new entry from Deputy Attorney General Sally Quillian Yates. On Sept. 9, 2015, Yates issued a memorandum titled “Individual Accountability for Corporate Wrongdoing,” setting forth six guidelines for federal prosecutors in all future investigations of corporate wrongdoing. In this article, we discuss the Yates Memorandum and its possible effects on corporate investigations and white-collar practice.

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

09.17.15 | Articles, Books & Journals

Below-Guidelines Sentences for Tax Defendants

New York Law Journal

Since the Supreme Court’s decision in United States v. Booker, district judges have had greater discretion in sentencing defendants based on a wide range of factors deemed relevant by Congress. This ability to consider the facts and circumstances of each defendant has resulted in a trend toward below-Guidelines sentences in tax cases generally and especially in cases arising out of undisclosed offshore accounts. This article considers this trend in light of the Seventh Circuit’s recent decision in United States v. Warner, which affirmed a substantial downward variance based, in part, on the defendant’s extraordinary personal background and charitable good works, his attempt to join the IRS’s Offshore Voluntary Disclosure Program, and the sentences imposed on similarly-situated defendants. 

Related Lawyer: Jeremy H. Temkin

09.10.15 | Blog Posts

Second Circuit Rules Dodd-Frank Protects Whistleblowers Who Report Internally

The Insider: White Collar Defense and Securities Enforcement

In a much-anticipated opinion, a divided panel of the Second Circuit Court of Appeals held in Berman v. Neo@Ogilvy LLC, that whistleblowers who report wrongdoing internally, but not to the Securities and Exchange Commission ("SEC"), are protected by the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"). [...]

Related Lawyer: Catherine M. Foti

09.08.15 | Blog Posts

Addressing the SEC’s Administrative “Home Court” Advantage in Enforcement Proceedings

The Insider: White Collar Defense and Securities Enforcement

A recent decision from the Seventh Circuit Court of Appeals highlights the ongoing debate regarding the Securities and Exchange Commission’s continued pursuit of administrative enforcement proceedings for securities violations. In Bebo v. SEC, a panel of the Seventh Circuit held that federal courts do not have jurisdiction to hear claims regarding the constitutionality of the SEC’s administrative hearing process and forum until all administrative remedies have been exhausted. The breadth and number of constitutional challenges raised by individuals subject to the SEC’s administrative process, however, signal that it may be time for the agency or Congress to make some changes. [...]

Related Lawyer: Robert J. Anello

09.04.15 | Articles, Books & Journals

Can Truthful Statements Be a Crime? Liability for Off-Label Marketing

New York Law Journal

In recent years, the U.S. Department of Justice has brought a series of high-profile cases against pharmaceutical companies for “off-label marketing” of prescription drugs, resulting in corporate guilty pleas and billions of dollars of criminal fines, forfeitures and civil penalties. In our latest column, we discuss a recent decision by Southern District of New York Judge Paul A. Engelmayer in Amarin Pharma v. FDA, which interprets the Second Circuit’s decision in United States v. Caronia broadly and rejects liability for truthful off-label marketing.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

09.01.15 | Blog Posts

Dog Days for the SEC

The Insider: White Collar Defense and Securities Enforcement

This summer has been a hot one for the Securities and Exchange Commission (“SEC”). In particular over the past couple of months, the SEC has been busy promoting and defending its rules and practices in front of federal courts across the country, including defending the constitutionality of the Commission’s administrative enforcement proceedings in various circuits, while venturing further into the morass of cases grappling with the definition of who is a “whistleblower” entitled to the anti-retaliation protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) by issuing an Interpretive Release on the issue “clarifying” its position. Whether the SEC’s positions will ultimately triumph is not clear but the SEC is fighting hard to protect its interpretation of Dodd Frank. [...]

Related Lawyer: Catherine M. Foti

08.19.15 | Articles, Books & Journals

Class Arbitration—Dying but Not Dead

New York Law Journal

Many entities doing business with the public have long preferred arbitration as a forum for resolving disputes with their customers. The Supreme Court’s 2010 decision in Stolt-Nielsen v. Animal Feeds International Corp. provided strong protection against class litigation for these entities. In this article, we discuss class arbitration and Judge Colleen McMahon’s recent decision in Edwards v. Macy's highlighting the risks associated with drafting broad arbitration clauses.

Related Lawyers: Edward M. Spiro

08.17.15 | Blog Posts

Whistleblowers Who Take Company Documents May Risk Criminal Prosecution

The Insider: White Collar Defense and Securities Enforcement

Federal law now protects whistleblowers in many instances from retaliation and encourages them, through financial incentives, to bring qui tam lawsuits and report possible wrongdoing to the SEC and IRS. In this fashion, the law turns company employees into potential confidential informants. As informants, employees have a powerful incentive to provide federal authorities secretly with business-related information (including documents) that a company would ordinarily consider confidential and strictly for internal use. The regime of whistleblower law expects and even promotes such conduct – though at least one recent state case demonstrates that taking an employer’s confidential information, when it is done for private purposes, still violates the law. [...]

Related Lawyer: Jonathan S. Sack

08.05.15 | Articles, Books & Journals

Obstruction? Barry Bonds Prosecutors Strike Out in the Ninth

New York Law Journal

For some, the Ninth Circuit’s reversal of home run king Barry Bonds’ obstruction of justice conviction and the government’s recent decision to drop any further prosecution may prompt a reassessment of Bonds’ place in baseball history. For those who focus on white collar crime, the case presents another example of how the breadth of the federal obstruction laws makes them a nearly irresistible choice for prosecutors, and of the seemingly endless struggle of the courts to define appropriate limits on their reach. This article discusses the federal obstruction of justice statutes and the implications of the Bonds decision.

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

08.03.15 | Articles, Books & Journals

LAW vs. LORE: The Lack of Judicial Precedent in FCPA Cases

Business Crimes Bulletin

When delivering legal advice, lawyers attempt to provide informed guidance based on controlling law. Yet, when it comes to significant chunks of the white collar criminal and regulatory landscape, practitioners often are forced to provide advice based on professional “lore” derived from negotiated settlements rather than enacted laws or judicially established caselaw. In this two-part article, we discuss the lore that counsel must rely upon when tackling FCPA enforcement actions, as well as the downside of such reliance.

Related Lawyers: Robert J. Anello

07.27.15 | Blog Posts

Interpol: How to Catch a Thief – International Style

The Insider: White Collar Defense and Securities Enforcement

In my last blog post, I discussed the federal government’s increased focus on criminal activity that occurs overseas and the recent high-profile indictment filed by the Justice Department against nine FIFA officials. On June 3, 2015, INTERPOL, the world’s largest international police organization, issued Red Notices for six of the FIFA defendants. Red Notices issued by INTERPOL are the closest thing to an international arrest warrant. The FIFA cases present an opportunity to examine the work of INTERPOL and the significance of the notices it issues. [...]

Related Lawyer: Robert J. Anello

07.16.15 | Articles, Books & Journals

Offshore Accounts: The Beat Goes On

New York Law Journal

In its seventh year and fourth iteration, the Offshore Voluntary Disclosure Program (“OVDP”) remains the best opportunity for taxpayers who intentionally evaded their tax and reporting obligations to bring themselves into compliance and avoid criminal prosecution. However, not every current or former offshore accountholder who failed to comply with those obligations acted with a culpable state of mind, and the IRS has come to recognize the inequity of treating taxpayers who made good faith mistakes as harshly as those who acted willfully. In this article, I discuss the various options available to taxpayers with previously undisclosed offshore accounts.

Related Lawyer: Jeremy H. Temkin

07.13.15 | Articles, Books & Journals

Prosecution of Conduct Abroad—Where Are the Limits?

New York Law Journal

As our economy has become more global, white-collar criminal investigations have increasingly focused on conduct that occurred beyond our borders. Such investigations raise threshold issues of extraterritorial application of federal laws and sufficient nexus to this country. In this article, we discuss these threshold issues and two recent cases that address them.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.19.15 | Blog Posts

SEC, the Whistleblowers' "Advocate"

The Insider: White Collar Defense and Securities Enforcement

After the Dodd-Frank Wall Street Reform and Consumer Protection Act was signed into law in 2010, speculation abounded as to whether the ambitious whistleblower bounty program would succeed and about how the Securities and Exchange Commission would support the program. But, in the four years since the bounty program became effective, the SEC has proved that it will do what it takes to make the program successful, including awarding payments totaling over $50 million to whistleblowers; appearing as amicus curiae in support of whistleblowers seeking protection under Dodd Frank’s anti-retaliation provisions; and pursuing companies that retaliate against whistleblowers or attempt to prevent whistleblowers from bringing tips to the SEC. In fact in a recent speech, SEC Chair Mary Jo White dubbed the SEC “the whistleblower’s advocate.” [...]

Related Lawyer: Catherine M. Foti

06.17.15 | Articles, Books & Journals

Two Decisions Highlight the Perils of Witness Contact

New York Law Journal

In recent weeks, Southern District Judges J. Paul Oetken and Paul A. Engelmayer each issued decisions addressing different ethical dimensions of contact between attorneys and witnesses, in one case finding that the proposed contact was impermissible, and in the other finding that counsel’s lack of witness contact was problematic. In this article, we discuss these decisions, highlighting the complicated issues that counsel face interviewing witnesses in a litigation context.

Related Lawyers: , Edward M. Spiro

06.08.15 | Blog Posts

FI-FA Fo Fum: Who Gets to Prosecute Non-Americans

The Insider: White Collar Defense and Securities Enforcement

America seemingly has found a new product to export – its criminal justice system. Many recent high profile criminal cases brought by the Justice Department, including a multi-billion dollar settlement with Swiss bank Credit Suisse for its banking practices in Switzerland and a number of other recent financial industry prosecutions and Foreign Corrupt Practices Act cases, have centered around activity that has occurred mainly overseas. The United States asserts its jurisdiction in these cases because the American banking system or its capital markets and exchanges were somehow involved. [...]

Related Lawyer: Robert J. Anello

06.03.15 | Articles, Books & Journals

Convicted Corporations Aren’t Really Bad Boys

New York Law Journal

In this article, we discuss the recent guilty pleas by four major international banks—Citigroup, JPMorgan Chase, Barclays, and Royal Bank of Scotland—for the attempted manipulation of foreign exchange rates. Although the Department of Justice characterized the pleas as “historic resolutions,” in truth the government made significant efforts to blunt the effects of the criminal convictions by granting waivers to rules that would have restricted the banks’ ability to continue doing business in the United States—so-called “bad boy” provisions. We also discuss how these resolutions illustrate fundamental problems with the current framework for corporate criminal liability in the United States.

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

05.28.15 | Blog Posts

Deferred Prosecution Agreements - The Going Gets Tougher

The Insider: White Collar Defense and Securities Enforcement

Deferred Prosecution Agreements with the Department of Justice (DPAs) have been a powerful tool of federal white-collar criminal enforcement for a number of years. At the same time, DPAs have been attacked from many sides – judges, elected officials and commentators – for being too lenient on companies and too frequently used in lieu of prosecutions of individuals, as I have discussed in recent posts.

In a series of recent speeches Assistant Attorney General Leslie Caldwell has given a thoughtful defense of DPAs, explaining the basic merits of DPAs (and Non-Prosecution Agreements, or NPAs), while also responding to critics of such agreements. In speeches at the ACAMS Anti-Money Laundering & Financial Crime Conference in March and at NYU on April 14 and 17, AAG Caldwell described DPAs and NPAs as "useful enforcement tools" that allow the Justice Department to "accomplish as much as, and sometimes even more than, [it] could from a criminal conviction." She explained, "[w]e can require that the banks cooperate with our ongoing investigations, particularly in our investigations of individuals. We can require that such compliance programs and cooperation be implemented worldwide, rather than just in the United States. We can require periodic reporting to a court that oversees the agreements for its terms." [...]

Related Lawyer: Jonathan S. Sack

05.21.15 | Articles, Books & Journals

The Government’s Use of Tax Returns at Trial

New York Law Journal

In cases charging either tax evasion or filing false returns, the government will naturally offer the defendant’s tax returns for the years charged in the indictment as part of its case-in-chief, and the defendant will be hard pressed to object to their admissibility. This, however, is not the only way the government uses the defendant’s tax returns in criminal cases. This article discusses the government’s ability to access the defendant’s returns for use in non-tax cases, as well as the evidentiary issues surrounding the admissibility of both “other year returns” in tax cases and any returns in non-tax cases.

Related Lawyer: Jeremy H. Temkin

05.05.15 | Articles, Books & Journals

Same Facts, Different Results: Civil and Criminal Liability After ‘Newman'

New York Law Journal

The Second Circuit’s decision in United States v. Newman continues to have a significant impact on insider trading cases. In this article, we discuss Judge Rakoff’s recent decision in SEC v. Payton, compare the mental state requirement in criminal and civil insider trading cases, and consider Judge Rakoff’s recent suggestion, in a talk at NYU Law School, that civil and criminal insider trading should be addressed in two separate statutory provisions.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

04.23.15 | Blog Posts

Duka v. SEC Redux - SEC Holds Home Court Advantage for Another Round

The Insider: White Collar Defense and Securities Enforcement

Defendants widely view the SEC’s administrative courts as an unfavorable venue to square off against the SEC’s own enforcement staff. Accordingly, as the SEC has recently channeled enforcement proceedings away from the federal courts to its “home” courts, a number of defendants have brought federal court challenges attacking the administrative proceedings on a variety of grounds. Many such challenges have failed to reach the merits, as courts have accepted SEC arguments against the courts’ jurisdiction to interfere with an ongoing agency proceeding and found that defendants are limited to the ordinary post-hearing appellate process to obtain review. In a decision filed last week in Duka v. SEC, Southern District of New York Judge Richard N. Berman ruled that one such challenge seeking to stop an SEC administrative hearing cleared these preliminary hurdles, but ultimately did not make it across the finish line. [...]

Related Lawyer: Richard F. Albert

04.22.15 | Articles, Books & Journals

Class Action Attorney Fee Applications Under Closer Scrutiny

New York Law Journal

In this article, we discuss two recent decisions by U.S. Southern District Judge Lewis A. Kaplan commenting on the lack of effective adversarial testing of proposed fee applications following securities class action settlements, and stressing the fiduciary obligation of the court to exercise stewardship over settlement funds in that circumstance. Judge Kaplan’s thoughtful approach to the fee awards in these two decisions is likely to influence other judges considering fee applications and may well reinforce the trend of shrinking fee awards, that Judge Kaplan himself noted.

Related Lawyers: Edward M. Spiro

04.17.15 | Blog Posts

Big Brother Gets Bigger: Installing Independent Monitors Before a Settlement is Signed

The Insider: White Collar Defense and Securities Enforcement

Federal and state regulators frequently rely on independent compliance monitors to ensure that corporate wrongdoers follow-through on correcting the conduct that got them into trouble. Southern District of New York Judge Jed Rakoff has referred to a corporate monitor as both a “financial watchdog” and “an overseer who has initiated vast improvements in the company’s internal controls and corporate governance.” Typically installed as part of a settlement agreement between the government and those companies that have had legal and regulatory issues, the monitors assess and report back to the government on violations of the law and on the effectiveness of the corporation’s compliance and ethics programs. [...]

Related Lawyer: Robert J. Anello

04.08.15 | Articles, Books & Journals

New Counterattack on SEC’s Home Court Advantage

New York Law Journal

In the wake of the 2010 Dodd-Frank Act’s broadening of the reach of SEC administrative enforcement proceedings, the agency undertook a major shift toward pursuing such proceedings instead of federal district court actions. Administrative proceedings, which are heard by judges employed by the Securities and Exchange Commission, are widely perceived to favor the agency. Indeed, recent data on the results of such proceedings reveal that the SEC has enjoyed a lopsided record of success, compared to its far more modest record in federal court trials. In this article, we discuss federal court challenges to the SEC’s initiation of administrative proceedings, including Duka v. SEC, in which Duka relies on recent Supreme Court precedent to assert an intriguing constitutional challenge to the status of SEC administrative law judges.

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

03.26.15 | Blog Posts

Ethical Rules for Social Media Gain Clarity

The Insider: White Collar Defense and Securities Enforcement

On March 10, 2015, the New York County Lawyers Association ("NYCLA") weighed in on the ethical implications for lawyers who use social media websites for professional self-promotion. In Formal Opinion 748, NYCLA addressed the widespread use of LinkedIn and specifically examined (1) whether a LinkedIn profile is considered "Attorney Advertising;" (2) when it is appropriate for attorneys to accept endorsements and recommendations; and (3) what information attorneys should include and exclude from social media profiles. Although the NYCLA opinion does not resolve all open questions about the nature and extent of the information attorneys can post on LinkedIn without running afoul of the New York Rules of Professional Conduct, it answers significant questions left open by two Committees of the New York State Bar Association ("NYSBA"). [...]

Related Lawyer: Catherine M. Foti

03.19.15 | Articles, Books & Journals

Discharging Tax Debts in Bankruptcy: When is a Return not a Return?

New York Law Journal

Falling behind on one’s taxes often leads to a downward spiral, and it is not uncommon for a taxpayer who cannot pay her tax obligations to decide not to file a return. Not only does such a failure to file expose the taxpayer to additional penalties and potential criminal liability, but it can have devastating ramifications if she subsequently files for bankruptcy. This article discusses In re Fahey, in which the United States Court of Appeals for the First Circuit joined the Fifth and Tenth Circuits in concluding that filing deadlines are “filing requirements” under 11 U.S.C. Section 523(a)(*) and thus that the tax liabilities reflected on untimely returns are not subject to discharge. While these Courts of Appeals have all interpreted the so-called “hanging paragraph” in a manner that precludes virtually all late-filers from discharging tax liabilities in bankruptcy, there are compelling reasons to exclude returns accepted by the relevant taxing authority from such a harsh rule. Clearly, there is more to come on this issue. In the meantime, Fahey provides yet another reason for practitioners to urge their clients to file their returns on a timely basis.

Related Lawyer: Jeremy H. Temkin

03.12.15 | Blog Posts

Meet the Fokker: Continued Judicial Skepticism toward Deferred Prosecution Agreements

The Insider: White Collar Defense and Securities Enforcement

In recent years, the Department of Justice has come to rely on Deferred Prosecution Agreements (DPAs) to resolve many high-profile investigations of corporate wrongdoing. Under DPAs, criminal charges are filed in district court, and prosecution is deferred pending a corporate defendant’s fulfillment of remedial obligations, including payments to the government. [...]

Related Lawyer: Jonathan S. Sack

03.04.15 | Articles, Books & Journals

White-Collar Enforcement Under Attorney General Eric Holder

New York Law Journal

When Attorney General Eric Holder took office in February 2009, the country was in the midst of a financial crisis, and many voices called for holding companies and individuals accountable for alleged criminal conduct. In this article, we discuss how the Department of Justice responded to the financial crisis, highlight key initiatives separate from the financial crisis, and address likely Department priorities going forward.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.27.15 | Blog Posts

A Small Barracuda in a Big Pond: New York’s Department of Financial Services

The Insider: White Collar Defense and Securities Enforcement

World-wide financial institutions take notice – New York has a new regulator on the scene. Newsweek describes him as “body-slamming” one of the world’s largest banks, “the man the banks fear most.” The Wall Street Journal has labeled him “one of Wall Street’s most dogged pursuers.” American Banker characterizes him as “pushing the envelope” of bank regulation. In three years on the job, this regulator and the new agency he rules have extracted more than $3 billion in fines from global banks. In a speech he delivered at Columbia University this Wednesday, the regulator made clear that, in all likelihood, these headline-grabbing events are just a sign of things to come. [...]

Related Lawyer: Robert J. Anello

02.18.15 | Articles, Books & Journals

Recurring Challenges to Privilege and Work Product Doctrine

New York Law Journal

In this article, we discuss three recent decisions by judges of the U.S. District Court for the Southern District of New York which expose some common misconceptions regarding the attorney-client privilege and work product doctrine and offer some valuable guidance for those litigating privilege and work product disputes.

Related Lawyers: , Edward M. Spiro

02.12.15 | Blog Posts

The Surprise Cost of Whistleblowing

The Insider: White Collar Defense and Securities Enforcement

On February 3, 2015, in United States v. Huron Consulting Group, Inc., U.S. District Judge Jed S. Rakoff, took the unusual – but not unprecedented – step of ordering a False Claims Act (“FCA”) relator to pay thousands of dollars of costs to the prevailing defendants Huron Consulting Group, Inc. and Empire Health Choice Assurance, Inc. This opinion highlights the financial dangers faced by individuals who try to blow the whistle on potentially illegal behavior. [...]

Related Lawyer: Catherine M. Foti

02.04.15 | Articles, Books & Journals

Waning Influence of Sentencing Guidelines in White-Collar Cases

New York Law Journal

The restoration of sentencing judges’ discretion in the post-Booker era has rendered the federal sentencing guidelines—widely perceived as unduly punitive—less important in the white-collar context. Statistics confirm that courts increasingly have chosen to impose non-guideline sentences and, in some recent high profile cases, even the prosecution has proposed sentences below the guideline range. The U.S. Sentencing Commission recently has responded to complaints about the guidelines’ application by proposing a series of amendments to the guidelines governing economic crimes. We discuss all of this in our latest New York Law Journal article.

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

01.22.15 | Articles, Books & Journals

Internal Revenue Service Budget Cuts Spell Trouble

New York Law Journal

According to its mission statement, the Internal Revenue Service’s goal is “to provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all.” Over the past few years, the IRS has had to fulfill this mission with shrinking resources, and National Taxpayer Advocate Nina E. Olson has noted that “the budget environment of the last five years has brought about a devastating erosion of taxpayer service, harming taxpayers individually and collectively.” In this article, we discuss concerns that the additional cuts implemented as part of the recent budget deal will undermine both revenue collection and the fair enforcement of the Internal Revenue Code. 

Related Lawyer: Jeremy H. Temkin

01.09.15 | Articles, Books & Journals

Implications of Second Circuit Reversal of Insider Trading Convictions

New York Law Journal

The Department of Justice has brought few high-profile criminal cases against individuals arising from the 2008-2009 financial crisis. The department’s cases have tended to charge large financial institutions, not senior officials. A number of the high-profile cases arising from the collapse of mortgage-backed securities have resulted in civil, not criminal, charges and settlements. And the typical sanction has been the payment of substantial (often multi-billion dollar) sums to the government, not imprisonment.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

01.08.15 | Blog Posts

The Year in White-Collar Crime: A Look Back Helps Us See Ahead

The Insider: White Collar Defense and Securities Enforcement

The Justice Department’s white-collar agenda in 2014 was marked by skyrocketing corporate settlements and continued reliance on deferred and non-prosecution agreements, coupled with compliance monitors. Several significant decisions with long-term implications for white-collar cases also were issued by federal courts in 2014. A look at the Justice Department’s approach and these decisions offer a clue as to what to expect in white-collar cases in 2015. [...]

Related Lawyer: Robert J. Anello

12.18.14 | Articles, Books & Journals

Practical Observations by Judges on the Scope of Discovery

New York Law Journal

In the last several months, judges of the U.S. District Court for the Southern District of New York have issued a number of rulings on discovery disputes that offer both pragmatic resolution of the dispute at hand and broader, instructive commentary on the scope of permissible discovery. These rulings make clear that Southern District judges are increasingly losing patience with discovery for discovery’s sake. This article discusses several of those opinions.

Related Lawyers: Edward M. Spiro

12.17.14 | Blog Posts

The Barko v. KBR Privilege Battle Continues

The Insider: White Collar Defense and Securities Enforcement

A high-profile qui tam suit against Kellogg, Brown & Root and Halliburton continues to generate important case law relating to the scope of attorney-client privilege and work product protection given to internal investigations.

In the lawsuit, arising out of alleged false claims to the government under Iraq reconstruction-related contracts, federal judge James S. Gwin in Washington, D.C. held, in March 2014, that internal investigation materials were not protected by the attorney-client privilege because the investigation had been conducted as a matter of regular company policy by internal compliance personnel and as required by federal law. (I wrote about Judge Gwin’s ruling in a blog entitled “When Is An Internal Investigation Not Privileged.”) The defendants appealed the ruling, which led to a unanimous decision three months later in In Re: Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. June 27, 2014), in which the U.S. Court of Appeals for the D.C. Circuit vacated the district court decision, holding that an internal investigation is privileged so long as “one of the significant purposes” of the investigation is to obtain or provide legal advice. The Court of Appeals remanded the case to the District Court for further proceedings. (I discussed the D.C. Circuit’s opinion in “D.C. Circuit Upholds Claim of Corporate Attorney-Client Privilege.”) That ruling is now subject to a petition for certiorari to the Supreme Court. [...]

Related Lawyer: Jonathan S. Sack

12.03.14 | Articles, Books & Journals

Missing Fish, Obstruction Statute and Prosecutorial Discretion

New York Law Journal

White-collar criminal practitioners spend much of their time arguing about how prosecutors should exercise their discretion in making charging decisions, often against the backdrop of broad and uncertain criminal statutes. When the Supreme Court grapples with the same issue, however, significant new criminal law doctrine may emerge. That potential became apparent most recently during the oral argument of Yates v. United States, the peculiar case of a fisherman prosecuted for obstruction of justice under the Sarbanes-Oxley Act for throwing undersized fish back into the sea. In this article, we discuss this case, the critical comments the justices directed toward the government regarding its exercise of prosecutorial discretion, and potential judicial remedies.

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

12.01.14 | Blog Posts

Prosecuting Individuals for Financial Crimes - Some Questionable Recent Ideas

The Insider: White Collar Defense and Securities Enforcement

The government must be very sensitive about all the criticism it has been getting, from Congress, some judges and others, for not prosecuting more individuals for financial crimes. Perhaps in response, senior government officials have given a series of speeches since September declaring the commitment of the Justice Department to such prosecutions.

White-collar defense lawyers know that individuals are investigated and prosecuted all the time, so in some ways the recent speeches don’t tell us very much. But the speeches introduce a few ideas that raise concern that, perhaps, the government’s sensitivity is generating some questionable proposals. [...]

Related Lawyer: Jonathan S. Sack

11.21.14 | Articles, Books & Journals

Redefined Role of Profit in Economic Substance Doctrine

New York Law Journal

Learned Hand famously opined that “[a]ny one may so arrange his affairs that his taxes shall be as low as possible.” There is, however, a line between legitimate tax avoidance and illegal tax evasion and, in drawing that line, the IRS has long challenged attempts by taxpayers to reduce their tax liability by executing transactions that lack economic substance. In this article, I discuss the increasing focus of the economic substance doctrine on the proportionality between the potential profits to be derived from a transaction and the corresponding tax benefits, as well as the effect this changing focus will have on future cases.

Related Lawyer: Jeremy H. Temkin

11.10.14 | Blog Posts

Social Media for Attorneys: Good Business or Ethical Minefield?

The Insider: White Collar Defense and Securities Enforcement

Social media websites allow anyone — or more accurately everyone — to communicate and share ideas and opinions with a wide-ranging audience. Websites like Facebook, Twitter, YouTube and LinkedIn provide an extraordinary means for professional and personal networking and self-promotion, and for researching personal and professional contacts. In previous blog posts, I addressed ethical perils for lawyers who access social media websites to research potential jurors and for lawyers who advise clients concerning the propriety of removing potentially incriminating and discoverable material from social media websites. This post addresses yet another category of ethical pitfalls for lawyers who use social media: The risk of violating the ethical rules that govern attorney advertising by using social media for professional self-promotion. [...]

Related Lawyer: Catherine M. Foti

11.04.14 | Articles, Books & Journals

Corporations and Risks of Mandatory Disclosures to the Government

New York Law Journal

One of the axioms of white-collar practice today is that companies, especially public companies, do not litigate against criminal and civil enforcement authorities, except in rare circumstances. In this article, we discuss two trends that may make the already constrained position of companies even more difficult in terms of increased exposure to liability and reduced opportunities to mitigate the terms of settlement.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

10.23.14 | Blog Posts

Eyes Wide Shut: Recent Second Circuit Concurrence Continues Debate on Conscious Avoidance Doctrine

The Insider: White Collar Defense and Securities Enforcement

The legal doctrine of “conscious avoidance,” which provides that a defendant who deliberately shields himself from clear evidence of critical facts is considered equally liable as one who has actual knowledge, continues to provoke debate. The doctrine, also referred to as “willful blindness,” can be critical in complex white-collar criminal cases, where the defendant’s awareness of others’ wrongful conduct is commonly a central issue. We recently addressed the doctrine in an article following the March 2014 conviction of five former employees of Bernard Madoff after a trial that turned almost entirely on the question whether the defendants had knowledge of Madoff’s illegal Ponzi scheme. More recently, Second Circuit Judge Pierre Leval issued a concurring opinion in United States v. Fofanah that provides a detailed and thought-provoking analysis of Second Circuit law regarding when it is appropriate to give a conscious avoidance charge to a jury. The opinion provides no comfort to those concerned that the doctrine is overused and threatens to permit juries to convict on a less culpable mental state than required by statute. [...]

Related Lawyer: Richard F. Albert

10.21.14 | Articles, Books & Journals

Recent Rule 45 Developments: Notice and Geographic Limits

New York Law Journal

In this article, we discuss recent SDNY cases addressing the 2013 amendments to Federal Rule of Civil Procedure 45. These amendments were designed to simplify and clarify the scope and mechanics of pre-trial and trial subpoenas. 

Related Lawyers: , Edward M. Spiro

10.15.14 | Blog Posts

Corporate State of Mind in Securities Cases: The Sixth Circuit Blazes a New Trail

The Insider: White Collar Defense and Securities Enforcement

Analysis of the corporate mens rea is, by definition, contrived and one with which federal courts have struggled. Unlike instances where an individual is charged with securities fraud, determining the “thinking” or “knowledge” of an artificial entity, sometimes comprised of thousands of disparate employees throughout the world, is a difficult theoretical undertaking. Until last Friday, corporate scienter generally was assessed by reference to one of two established approaches: traditional respondeat superior, where the company stands in the shoes of the relevant actors; or collective knowledge, where a company is charged with the knowledge of any of its agents, even those who may not have committed the offending conduct. [...]

Related Lawyer: Robert J. Anello

10.07.14 | Articles, Books & Journals

SEC’s Possible Reality: All Enforcement Actions Filed Within Five Years

New York Law Journal

Enforcement actions seeking penalties long have been subject to the five-year statute of limitations set forth in 28 U.S.C. §2462. For years, the SEC has sought not to be tied down by a strict five-year limitation by arguing that the clock does not start to run until the alleged fraud is discovered by the agency—a position flatly rejected by the U.S. Supreme Court last year. The last arrow in the SEC’s quiver to avoid the five-year statute has been its argument that when it seeks so-called “equitable” remedies, like injunctions and disgorgement, the limitations period contained in Section 2462 is inapplicable. This final effort to avoid statutory time constraints also may be doomed. SEC v. Graham, a recent decision from the Southern District of Florida, if upheld, would require the SEC timely to investigate and file all enforcement actions regardless of the remedy sought. In this article, we discuss this case and other recent cases, and evaluate the role a change in §2462 would play in future cases.

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

10.01.14 | Blog Posts

Amid the Sunshine, Controversy Lingers: The Release of CMS's "Open Payments" System

The Insider: White Collar Defense and Securities Enforcement

In a March 2013 post on the Insider blog, we noted the issuance by the Centers for Medicare and Medicaid Services (CMS) of a long-awaited final rule mandating the collection of information regarding payments that drug and device manufacturers have made to physicians and teaching hospitals. As we noted in the post, the rule was promulgated pursuant to the “Physician Payments Sunshine” provisions that were part of the Affordable Care Act, and the goal of the rule was to provide transparency into the financial relationships that exist between physicians and industry. In a preliminary effort to assess the potential utility of the payment data that was to be released, our post reviewed the “Dollars for Docs” database that the investigative entity ProPublica maintains on its website, and found that while the ProPublica database provides extensive and noteworthy information, it perhaps raises more questions than it answers about the monetary relationships between medical professionals on the one hand, and manufacturers on the other. [...]

Related Lawyer: Robert M. Radick

09/19/14 | Articles, Books & Journals

IRS Summons Enforcement After 'United States v. Clarke'

New York Law Journal

IRS agents conducting audits have the power to issue summonses requiring taxpayers and third parties to produce documents and testify under oath. In a summons enforcement action, the recipient of a summons can avoid providing the requested evidence by showing that the summons was issued for an improper purpose. This past term, the U.S. Supreme Court decided what showing a party must make to obtain an evidentiary hearing as to the propriety of a summons, concluding that the party must “plausibly rais[e] an inference of bad faith.” This article discusses the Court’s decision in United States v. Clarke and addresses the potentially significant questions that remain open.

Related Lawyer: Jeremy H. Temkin

09/12/2014 | Blog Posts

Did the Summer Shine Any Light on Dodd-Frank Whistleblower Land?

The Insider: White Collar Defense and Securities Enforcement

The summer saw a significant new development in the Securities and Exchange Commission's (“SEC”) whistleblower bounty program but failed to see any development on obtaining clarification as to the reach of the Dodd-Frank Act's whistleblower protection provision. While the SEC was busy finalizing the first-ever award to an employee working in the area of compliance, the courts were intent on taking a break from dealing with whistleblowing employees, and their SEC amici, to achieve clarity on the issue of whether reporting internally, but not to the SEC, is sufficient to fall within the protections of the Dodd-Frank Act’s anti-retaliation provision. [...]

Related Lawyer: Catherine M. Foti

09.02.14 | Articles, Books & Journals

Bank Secrecy Act Prosecutions: Why Few Individuals Are Charged

New York Law Journal

Following the 2007-08 financial crisis, government enforcement efforts have met with a recurring criticism – that individuals have not been held accountable for causing the unlawful conduct of institutions. This criticism has been directed at a series of high-profile prosecutions of banks for violations of the anti-money laundering requirements of the Bank Secrecy Act.

Below, we consider the relative scarcity of individual prosecutions in BSA cases and suggest that it lies in the nature of the criminal violations at issue, which focus chiefly on institutional failures to adopt adequate controls, and in the difficulties of investigating the extraterritorial conduct of global financial institutions. It is not surprising, in this light, that civil penalties have begun to receive heightened interest among enforcement authorities as a means of sanctioning and deterring individual misconduct—a development seen in other areas of white-collar enforcement since the financial crisis.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

08/27/2014 | Blog Posts

When The Government Chases the Tail of the Dog

The Insider: White Collar Defense and Securities Enforcement

Two recent white-collar cases are examples of a phenomenon that one tends to find when the defense is able to emerge victorious: a case with some core facts that simply do not fit the pattern of wrongdoing expected in the popular conception. The phenomenon is that of the case that trails behind, and that is missing the characteristics that ultimately matter most: the tail, not the dog. [...]

Related Lawyer: Richard F. Albert

08.26.14 | Articles, Books & Journals

Shrinking Grounds for General Jurisdiction After 'Daimler'

New York Law Journal

The Supreme Court’s recent decision in Daimler v. Bauman, coupled with its 2011 decision in Goodyear Dunlop Tires Operations v. Brown, call into question whether certain long-held assumptions about the reach of CPLR 301—New York’s general jurisdiction statute—are consistent with due process. Daimler’s impact is already evident in decisions from the U.S. District Court for the Southern District of New York. We discuss below several of those recent decisions, which raise important questions about the scope of general jurisdiction in New York.

Related Lawyers: Edward M. Spiro

08/20/2014 | Blog Posts

Be Careful Where You Whistle While You Work: Courts Impose Limits on Dodd-Frank's Protection for FCPA Whistleblowers

The Insider: White Collar Defense and Securities Enforcement

The Dodd-Frank Wall Street Reform and Consumer Protection Act was heralded as providing whistle-blowing employees protection from retaliation by their employers. In Liu v. Siemens AG, handed down last week, the Second Circuit limited the reach of the Act’s anti-retaliation protections to domestic whistleblowers. In doing so, the Court rejected a claim brought by a Taiwanese lawyer employed by a German corporation who disclosed suspected Foreign Corrupt Practice Act violations by the corporation’s Chinese subsidiary, finding that the relevant provisions of the Dodd-Frank Act did not apply “extraterritorially” [...]

Related Lawyer: Robert J. Anello

08.05.14 | Articles, Books & Journals

When The Government Searches Your Hard Drives

New York Law Journal

Government searches of ever more sophisticated technology and ever vaster quantities of electronic data implicate ever increasing stakes for individual privacy. Recent decisions from the Supreme Court and the Second Circuit demonstrate that courts are recognizing these stakes, and may be beginning to breathe more life back into the Fourth Amendment after years of cutting back on its protections. This article takes a look at the Second Circuit's ruling in United States v. Ganias, which reversed a tax evasion conviction based on the government's improper off-site search of hard drives, and discusses related Fourth Amendment issues that pose particular challenges when the government seizes digital media.

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

08.05.14 | Blog Posts

D.C. Circuit Upholds Claim Of Corporate Attorney-Client Privilege

The Insider: White Collar Defense and Securities Enforcement

A recent blog post addressed a noteworthy decision in United States ex rel. Barko v. Halliburton Co., No. 1:05-CV-1276, 2014 WL 1016784 (D.D.C. Mar. 6, 2014), which held that materials relating to an internal investigation were not protected by the attorney-client privilege. The decision was quickly seen as casting doubt on a company’s ability to conduct a privileged investigation of alleged employee misconduct. A petition for writ of mandamus to the Court of Appeals for the D.C. Circuit followed, along with amicus briefs by groups interested in protection of the privilege. [...]

Related Lawyer: Jonathan S. Sack

07.23.14 | Blog Posts

Big Brother Vs. Underfunded Enforcement

The Insider: White Collar Defense and Securities Enforcement

On July 5, 2014, in an opinion piece entitled “The Real Internal Revenue Scandal,” the editorial board of The New York Times noted that “every dollar spent on internal revenue service enforcement yields $6 in additional revenue.”

I suspect that the SEC would make the same claim, that for every dollar spent on staff attorneys in the Division of Enforcement, the SEC recovers a multiple of that number. [...]

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07.16.14 | Blog Posts

Medicaid Claims And Health Care Fraud: As The Data Flows, New Cracks Emerge

The Insider: White Collar Defense and Securities Enforcement

As we noted in two of our prior posts in the Insider blog, the government has long touted its ability to rely upon data mining as a means of detecting fraud in the federal health care system, and has initiated a host of investigations and prosecutions based on its analysis of claims data from the Medicare and Medicaid programs.  Yet any approach that relies on data mining rests on a fragile foundation, because the quality of the information upon which the government relies has often been in doubt.  As we explained in the first of our two prior posts on this topic, an HHS Regional Inspector General testified in June 2012 that much of the data used to identify overpayments and fraud is not “current, available, complete, [or] accurate.”  Subsequently, in a post from November 2012, we described the concerns that two United States Senators raised regarding the effectiveness of the “Fraud Prevention System Program” (“FPS”), which is intended to use “predictive analysis” to reduce fraud, waste, and abuse in the Medicare program. [...]

Related Lawyer: Robert M. Radick

07.07.14 | Articles, Books & Journals

SEC Enforcement Data Analyses: Volume 2, Issue 1

The third publication of Morvillo Abramowitz's SEC Enforcement Data Analyses examines the work of the Securities & Exchange Commission's Division of Enforcement, beginning with cases filed on or after January 1, 2013. This publication focuses primarily on cases filed between January 1, 2014 and March 31, 2014 and provides a useful tool to discern important enforcement trends and precedents. 

Related Lawyers:

07.03.14 | Blog Posts

The Second Circuit And The Separation Of Powers: Limiting Judicial Scrutiny Of SEC Settlements

The Insider: White Collar Defense and Securities Enforcement

On June 4, 2014, a three-judge panel of the Second Circuit Court of Appeals vacated a widely publicized 2011 decision by U.S. District Judge Jed Rakoff, which rejected a settlement between the U.S. Securities and Exchange Commission (“SEC”) and Citigroup Global Markets, Inc. (“Citigroup”).  The settlement resolved allegations that Citigroup had misled investors in connection with the structuring and marketing of a fund holding assets that were linked to subprime securities.  The settlement called for a civil penalty of $285 million but did not include admissions of fact or liability by Citigroup. [...]

Related Lawyer: Jonathan S. Sack

07.01.14 | Articles, Books & Journals

False Statement Prosecutions: Major Change at Justice Department?

New York Law Journal

Under Section 1001 of Title 18, a wide array of false statements is subject to criminal prosecution, raising concern over the power the law gives to prosecutors. To the surprise of many, the Justice Department has recently taken a position on one element of a Section 1001 offense—“willfulness”—which at first blush would seem to make prosecutions under the law more difficult for the government. This article considers the Department’s position and its practical implications for white-collar defense lawyers and their clients. 

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.18.14 | Blog Posts

If You See Something, Say Something, But Maybe Only To The SEC

The Insider: White Collar Defense and Securities Enforcement

A debate has been raging in the courts over whether an employee who reports suspected misconduct only to his employer but not to the U.S. Securities and Exchange Commission (“SEC”) is a “whistleblower” entitled to the protection of the Anti-Retaliation Provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”). Last summer, in Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit Court of Appeals – the only federal appellate court to address this issue –ruled that an employee who reported a potential Foreign Corrupt Practices Act (“FCPA”) violation to his employer was not a “whistleblower” because he did not “provide information relating to a violation of the securities laws to the SEC,” contradicting five federal district courts which had found internal reporting to be adequate. (I analyzed the Asadi opinion and its likely effect on internal reporting in “When Is A ‘Whistleblower’ Not Really A ’Whistleblower’?”). A few district courts have since adopted the Fifth Circuit’s interpretation, but most have concluded that, consistent with the SEC’s own rules, internal reporting is sufficient to implicate Dodd-Frank’s protections. [...]

Related Lawyer: Catherine M. Foti

06.17.14 | Articles, Books & Journals

Multidistrict Litigation: For Better or Worse

New York Law Journal

While consolidated multidistrict litigation may prove beneficial in terms of cost and efficiency, consolidating multiple complex cases in a single forum also comes with risk. The rules governing multidistrict litigation generally permit transfer back to the original forum for trial, but not all cases can be transferred back to their original jurisdictions. This article examines the application of law governing multidistrict litigation in the context of Apple's recent multidistrict antitrust litigation.

Related Lawyers: , Edward M. Spiro

06.03.14 | Articles, Books & Journals

Revisiting Criminal Insider Trading Liability

New York Law Journal

The insider trading conviction of Galleon Group founder Raj Rajaratnam continues to ignite debate on the breadth of federal insider trading law. In affirming Rajaratnam’s conviction, the U.S. Court of Appeals for the Second Circuit relied on its precedent, broadly imposing criminal insider trading liability where a defendant has knowledge of insider information without evidence that he actually relied on the information in making a trade. That question, which is central to Rajaratnam’s petition for certiorari to the U.S. Supreme Court, is the topic of this article.

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

05.22.14 | Blog Posts

Postcards From Paris To The U.S. – An Object Lesson For Those Who Favor Extraterritorial Jurisdiction By U.S. Courts And Regulators

The Insider: White Collar Defense and Securities Enforcement

This story comes to mind now because of the increasing influence of the United States on the world’s regulatory environment, imposing United States views of how things should be run on the rest of the world. This week, the Department of Justice announced that it had reached an agreement with Credit Suisse whereby Credit Suisse agreed to plead guilty to conspiracy to commit tax evasion in the United States and pay a penalty of $2.6 billion. Presumably, most of the conduct at issue took place outside of the United States. But because it had consequences in the United States, the United States government believed that it had the right to punish that conduct. [...]

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05.07.14 | Blog Posts

The British Are Coming: The Redcoats Get Serious About Prosecuting International White-Collar Crime

The Insider: White Collar Defense and Securities Enforcement

United States financial entities and their individual employees should be aware that a new sheriff is in town.  Last week, the United Kingdom’s Serious Fraud Office (SFO) brought criminal charges against three American bankers in connection with its ongoing investigation into the rigging of the interest rate benchmark known as LIBOR.  The SFO’s press release was two sentences in length: “Criminal proceedings by the Serious Fraud Office have commenced today against three former employees at Barclays Bank Plc . . . in connection with the manipulation of LIBOR.  It is alleged they conspired to defraud between 1 June 2005 and 31 August 2007.”  [...]

Related Lawyer: Robert J. Anello

05.06.14 | Articles, Books & Journals

Scope of Disclosure When Investigative Reports Are Released to the Public

New York Law Journal

When a government investigation becomes widely known, negative publicity usually follows. The target of the investigation often looks for ways to influence public discussion, including issuance of an investigative report, as Governor Christie recently chose to do. This article considers the legal implications of releasing an investigative report, most importantly, the extent of further disclosure that may be required following its release.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

04.30.14 | Blog Posts

Conducting Online Research Of Jurors Just Got Less Perilous – Or Did It?

The Insider: White Collar Defense and Securities Enforcement

Last week, the American Bar Association’s Committee on Ethics and Professional Responsibility (“ABA”) gave lawyers the go-ahead to scour jurors’ or potential jurors’ publicly available social-media accounts, blogs, and websites such as Facebook, LinkedIn and Twitter. Although lawyers might be expected to breathe a sigh of relief that they can now engage in conduct considered acceptable and expected for most other professions without the threat of professional discipline, the opinion actually adds to the confusion about how existing ethical rules are applied in the ever evolving world of social media. Indeed, just two and three years ago respectively, two different New York bar associations concluded that the conduct the ABA just approved could be considered a violation of New York’s Rules of Professional Conduct. Thus, whether and how an attorney can research his or her jury pool may depend entirely on where that jury is sitting. [...]

Related Lawyer: Catherine M. Foti

04.16.14 | Blog Posts

When Is An Internal Investigation Not Privileged?

The Insider: White Collar Defense and Securities Enforcement

Compliance programs have grown in importance along with the demands of new laws and regulations.  These programs are increasingly seen as vital to preventing corporate misconduct or, at least, mitigating sanctions if misconduct is found.

At the same time, company management needs to think through the scope of work assigned to compliance personnel, especially when questionable conduct is detected.  Under these circumstances, an important question should be addressed:  who should look into the misconduct – compliance staff or in-house or external legal counsel? [...]

Related Lawyer: Jonathan S. Sack

04.15.14 | Articles, Books & Journals

A Lawyer's Privacy Interest – Real or Illusory?

New York Law Journal

New York attorneys have long relied on the New York Court of Appeals decision in Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP to protect a category of documents within their files as to which the attorney, rather than the client, has a privacy interest and to which the client does not have a right of access. This article discusses Judge Gardephe’s recent decision in Gruss v. Zwirn highlighting the narrow scope of this privacy interest.

Related Lawyers: Edward M. Spiro

04.02.14 | Blog Posts

Punishment Without Cause: Disgorgement And Forfeiture Of Salary And Pensions

The Insider: White Collar Defense and Securities Enforcement

It has become popular among prosecutors and regulators in recent years to claim that officials who engaged in wrongdoing on the job should be forced to surrender every dollar earned on that job.  The U.S. Attorney for the Southern District of New York has issued a policy statement that his office will use federal forfeiture laws to seek to strip the pensions of state officials convicted on federal corruption charges.  Such policy mirrors the position often taken by SEC enforcement lawyers in seeking to disgorge all of the salary and bonuses earned by corporate officials found to have engaged in misdeeds.  The problem with these claims, both as a matter of law and as a matter of fairness, is that they most often fail the basic test of causation. [...]

Related Lawyer: Richard F. Albert

04.01.14 | Articles, Books & Journals

Conscious Avoidance: An Over-Used Doctrine

New York Law Journal

This article, “Conscious Avoidance: An Over-Used Doctrine,” discusses the problems engendered by court interpretations of the evidentiary foundation required for a conscious avoidance jury instruction in criminal cases.

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

03.24.14 | Articles, Books & Journals

Congress Weighs In On Offshore Enforcement

New York Law Journal

A recent report by the U.S. Senate Permanent Subcommittee on Investigations (PSI) criticized both the Department of Justice and the Internal Revenue Service for their purported "lax enforcement" of the use of offshore bank accounts to evade U.S. tax laws. The report and subsequent hearings, however, ignore significant progress in the pursuit of offshore tax evasion through both the IRS's Offshore Voluntary Disclosure Programs and the DOJ's Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks. This article discusses how Congress could contribute to the appropriate enforcement of the tax laws by fully funding both the DOJ and the IRS.

Related Lawyer: Jeremy H. Temkin

03.20.14 | Blog Posts

Medical Research Fraud And HHS's Office Of Research Integrity: Watching The Watchdog

The Insider: White Collar Defense and Securities Enforcement

Even for those who carefully follow legal developments in the health care fraud arena, the Department of Health and Human Service’s Office of Research Integrity (“ORI”) is an agency that rarely appears on the radar.  According to its website, ORI “oversees and directs Public Health Service (PHS) research integrity activities,” including the integrity of research projects funded by agencies such as the National Institutes of Health (“NIH”) and the Centers for Disease Control and Prevention.  ORI’s primary functions include such tasks as “monitoring” investigations that research institutions conduct when there are allegations of data falsification, and proposing administrative actions against medical researchers found to have fabricated the results of their studies. [...]

Related Lawyer: Robert M. Radick

03.13.14 | Blog Posts

Representing Clients In The Age Of Social Media Is Not As Easy As You Think

The Insider: White Collar Defense and Securities Enforcement

The proliferation of social media over the past decade has drastically changed how people communicate.  Without much thought, people publicly post detailed personal information and photographs documenting their whereabouts and moment-to-moment activities.  In the litigation context, the increase in use of social media has created enormous amounts of discovery material.  Most attorneys are well aware that the personal items and pictures posted on people’s social pages are ripe areas to learn about an opposing party, opposing counsel, potential witnesses, jurors and judges.  Law enforcement agencies too -- like the NYPD, which created a social media unit in 2011 -- are mining social media for information concerning past and prospective criminal activity.  Most laws and rules governing how attorneys may advise their clients concerning the handling of their personal information were developed in the pre-Facebook age.  But, the differences between social media and other forms of discoverable material have altered the legality of attorneys’ actions both substantively and ethically in ways that many attorneys would not expect and in ways that conflict with their experience and instincts.  One problematic – and largely unanswered – question is what advice an attorney can legally and ethically give to a client who has posted potentially incriminating or discoverable material on a social media website. [...]

Related Lawyer: Catherine M. Foti

03.06.14 | Blog Posts

Contorting The Law Of Disgorgement In Contorinis: Disgorging Ill-Gotten Gains That Were Never Gotten

The Insider: White Collar Defense and Securities Enforcement

For all the complexities inherent to securities enforcement litigation, the law of available remedies has been comparatively simple. There are monetary penalties, there are officer-and-director (or other) bars, and there is “disgorgement.” And while penalties are frequently pursued by the Securities and Exchange Commission’s enforcement Staff, and imposed by judges, based on an opaque hash of factors ranging from the seriousness of the offense to the defendant’s personal character and circumstances, demands for the disgorgement of ill-gotten gains traditionally have been straightforward in both theory and application. Because disgorgement ostensibly is not intended to be punitive, and its principal purpose is to prevent culpable defendants from retaining the financial benefits of their transgressions, disgorgement-related fights between the SEC and litigants historically have centered on fixing, and then forfeiting, the amounts actually received by defendants through their own wrongdoing. [...]

03.06.14 | Blog Posts

Destitute Before Proven Guilty: Supreme Court OKs Asset Seizure In White-Collar Cases That Bars Defendants' Ability To Retain Counsel

The Insider: White Collar Defense and Securities Enforcement

The Supreme Court’s February 25 decision in Kaley v. United States creates a significant hurdle for white-collar defendants seeking to retain qualified counsel to defend against the government’s allegations.  Ruling that defendants cannot, prior to trial, challenge a grand jury’s probable cause determination that allows the government to bar a defendant’s access to assets linked to the alleged crime, the Court’s decision, according to the dissent, allows the government “to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice – without even an opportunity to be heard.”  In cases such as Kaley, where the government convinced the grand jury to charge on a novel or untested theory, the result poses a particularly difficult challenge for a white-collar defendant. [...]

Related Lawyer: Robert J. Anello

03.05.14 | Articles, Books & Journals

Are We Criminalizing Politics as Usual? Case Against Former Virginia Governor

New York Law Journal

Political leaders and their supporters routinely use the trading of favors to gain and maintain power. Politics in our own era is no exception. This article examines the law of honest services fraud, used to fight public corruption, in the context of the January 2014 indictment of former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell. The case raises important questions about where the line should be drawn between ordinary politics and criminal misconduct.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

March 2014 | Articles, Books & Journals

Mug Shots and the FOIA: Weighing the Public's Interest in Disclosure against the Individual's Right to Privacy

Cornell Law Review

Related Lawyer:

02.26.14 | Articles, Books & Journals

SEC Enforcement Data Analyses: Q1

The latest edition of Morvillo Abramowitz's quarterly report on the work of the SEC's Division of Enforcement provides an in-depth look at the cases filed nationwide during the 2013 calendar year.  Analyzing publicly available information, both on a case-by-case basis and on a macro level, our database is an invaluable tool for practitioners to find relevant precedents in SEC enforcement actions.

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02.18.14 | Articles, Books & Journals

SLUSA's Broad Definition Of 'Covered Class Action'

New York Law Journal

A new chapter is now being written in the ongoing battle between defendants seeking dismissal of securities class actions under the Securities Litigation Uniform Standards Act (SLUSA) and plaintiffs attempting to avoid SLUSA. The latest front in this battle concerns the question of what constitutes a "covered class action" under SLUSA. This article discusses three recent cases in the Southern District of New York that were found to fall within the broad definition of a "covered class action," not withstanding the fact that each was commenced as an individual action.

Related Lawyers: , Edward M. Spiro

02.12.14 | Blog Posts

Health Care Self-Disclosure Protocols – Is It Worth It To Self-Report?

The Insider: White Collar Defense and Securities Enforcement

In recent years the federal government has aggressively investigated and prosecuted pharmaceutical companies and health care providers for possible violations of anti-fraud, anti-kickback and other laws. These efforts have resulted in massive fines and financial penalties. [...]

Related Lawyer: Jonathan S. Sack

02.05.14 | Blog Posts

Extradition Italian Style: Knock, Knock, Knocking On Amanda Knox's Door

The Insider: White Collar Defense and Securities Enforcement

The ins-and-outs of extradition law increasingly are relevant as global commerce and international travel emerge as the norm, exposing citizens of one nation to the laws of other nations.  I previously have written on the process by which the United States typically seeks the return of fugitives to this country to stand trial.  Last week’s decision by an appellate court in Florence, Italy convicting American citizen Amanda Knox and her former boyfriend of the stabbing death of Knox’s roommate in 2007 raises questions regarding the flip side of the coin – how the United States government responds when another country seeks extradition of one of its citizens. [...]

Related Lawyer: Robert J. Anello

02.04.14 | Articles, Books & Journals

Martoma: Prior Bad Acts And Hobson's Choice for Defendants

New York Law Journal

A criminal defendant's decision whether or not to take the stand at trial is one of the most pivotal. Declining to testify, particularly in insider trading cases, can be risky, but testifying can permit attack by otherwise inadmissible "prior bad act" evidence. This article discusses the Martoma prosecution, which illustrates how the government can seek to attack a defendant with "prior bad acts" even if he does not take the stand.

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

February 2014 | Articles, Books & Journals

Criminal Forfeiture Laws: Pretrial Seizure of Assets and the Sixth Amendment

Business Crimes Bulletin

The second part of this Business Crimes Bulletin article examines the issues surrounding criminal forfeiture laws. The first article discusses the criminal forfeiture statute. The publication of part two coincides with the Supreme Court's ruling on February 25 in Kaley v. United States, which limits the ability of defendants to challenge a court's decision to freeze their assets before trial. The outcome of this closely watched case provides the government with another tool in its arsenal. An analysis of Kaley and its potential impact on white-collar cases and on the ability of defendants to hire counsel of their choice, is discusses in part two.

Related Lawyer: Robert J. Anello

January 2014 | Articles, Books & Journals

Criminal Forfeiture Laws: Tying a Defendant’s Hands

Business Crimes Bulletin

The increasingly aggressive use of criminal forfeiture has become a vital weapon in the federal prosecution of white-collar cases. Sometimes, however, the government's zealous pursuit of the supposed fruits of allegedly illegal conduct may run afoul of a defendant's constitutionally-protected right to counsel. That is the subject of part one of this Business Crimes Bulletin article, published in two parts.

Related Lawyer: Robert J. Anello

01.15.14 | Blog Posts

Out-Of-Balance: Basic Flaws In The Brady System

In recent years, the repeated, notable failures of the Brady disclosure regime by which prosecutors are required to produce evidence favorable to the accused in criminal cases have led to a cascade of criticism and growing calls for change.  A recent opinion by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, dissenting from the denial of review by the entire court in United States v. Olsen, opens with the memorable words: “There is an epidemic of Brady violations abroad in the land.  Only judges can put a stop to it.”  The forceful opinion, which provoked a number of editorials in leading newspapers,  provides an illustration of some of the basic flaws of the Brady disclosure system. [...]

Related Lawyer: Richard F. Albert

01.15.14 | Articles, Books & Journals

Second Circuit Tackles Required Records Exception

New York Law Journal

As part of its recent attck on undisclosed offshore accounts, the Department of Justice has issued numerous subpoenas requiring taxpayers to produce the records mandated by the Bank Secrecy Act. Late last year, the United States Court of Appeals for the Second Circuit joined with five other Courts of Appeals in rejecting a taxpayer's assertion of the privilege against self-incrimination and holding that the required records doctrine precludes application of the Fifth Amendment in reponse to such subpoenas. This article discusses the significance of the Second Circuit's decision and the implications for counsel representing taxpayers with undisclosed offshore accounts.

Related Lawyer: Jeremy H. Temkin

01.08.14 | Blog Posts

Stephen Cutler Has A Point About The Increasing Size Of Settlements

The Insider: White Collar Defense and Securities Enforcement

In late November, J.P. Morgan, the Justice Department and other agencies reached a $13 billion settlement over practices involving mortgage securities.  Three days later, J.P. Morgan’s General Counsel, Stephen Cutler, participated in a panel discussion hosted by a trade group named The Clearing House.  According to a November 25 article in the The Wall Street Journal, Mr. Cutler remarked, “At what point does this stop?,” referring to fines for J.P. Morgan and other banks. [...]

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01.08.14 | Articles, Books & Journals

Dilemma of Self-Reporting: The FCPA Experience

New York Law Journal

Self-reporting misconduct is one of the most difficult judgment calls faced by white-collar defense counsel and their clients. While voluntary disclosure is said to be rewarded by the government, the benefits are often quite difficult to make out. This article examines the dilemma of self-reporting in the context of the federal government's enforcement of the FCPA.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

January 2014 | Articles, Books & Journals

Making Internal Investigations Effective, Fair to Employees

Association of Workplace Investigators (AWI)

Corporate internal investigations can put counsel in the difficult position of protecting the interests of the corporation but not its employees. For example, counsel might provide an employee's incriminating statements to prosecutors in exchange for leniency toward the company. This feature article in the January 2014 issue of the Association of Workplace Investigators (AWI) Journal, provides practical guidance for conducting an effective internal investigation that is consistent with a vigorous defense of the company and fair to employees. The article was originally published in the October 3, 2013 edition of Corporate Counsel, an ALM Media Properties publication.

Related Lawyers: Jonathan S. Sack, Curtis B. Leitner

2014 | Articles, Books & Journals

White Collar Crime: Business and Regulatory Offenses

Law Journal Press 2014

Related Lawyer: Robert J. Anello

12.23.13 | Blog Posts

Insider Trading And Conscious Avoidance: Handling The Government's Most Powerful Prosecutorial Tool

The Insider: White Collar Defense and Securities Enforcement

The recent conviction of Michael Steinberg, a former senior trader at SAC, highlights the power of the government to obtain a conviction when armed with the ability to have a jury charged on a conscious avoidance theory of fraud.  The case proceeded without any direct evidence establishing that Mr. Steinberg explicitly knew that the information provided to him was improper inside information. Sure, there was testimony that Mr. Steinberg wanted his assistant Jon Horvath to obtain “edgy” or “proprietary” information, but Horvath did not testify that Mr. Steinberg expressly directed him to improperly obtain confidential information nor was their evidence that demonstrated that Mr. Steinberg actually knew where and how Horvath obtained the information.  Indeed, Horvath conceded that Mr. Steinberg never told him to break the law in obtaining his trading information.   And, Mr. Steinberg was not the direct recipient of the information—he was five people removed from the source of the confidential information. [...]

Related Lawyer: Benjamin S. Fischer

12.17.13 | Articles, Books & Journals

Comity and Discovery Requests In Cross-Border Litigation

New York Law Journal

This article discusses three recent decisions from SDNY that turn on international comity, demonstrating how this doctrine helps define the line between assisting foreign proceedings and interfering with them, and underscoring the importance of comity in international business transactions.

Related Lawyers: Edward M. Spiro

12.11.13 | Blog Posts

Selective Waiver In The Second Circuit -- Is It Dead, Or Just Dying?

The Insider: White Collar Defense and Securities Enforcement

When the government launches an investigation of a company, senior management typically calls for an internal investigation of the facts and tries to cooperate by sharing with the government the information that is gathered.  At the same time, management wants to avoid producing that information, which is ordinarily protected by attorney-client privilege, in litigation brought by private claimants.  That is, the company seeks to make a “selective waiver” of the privilege. […]

Related Lawyer: Jonathan S. Sack

12.04.13 | Blog Posts

Should College Athletics Go Corporate?

The Insider: White Collar Defense and Securities Enforcement

Athletics can be an important part of the college experience, helping to build a sense of community and loyalty that can last a lifetime. While some have advocated paying college athletes to address the perceived hypocrisy of student-athletes generating millions in revenues in exchange for scholarships, that step will not mitigate many of the risks facing athletic departments. Rather, colleges and universities should follow the lead of corporate America and invest in their compliance programs in light of the potentially devastating impact of sanctions. [...]

Related Lawyer: Jeremy H. Temkin

12.03.13 | Articles, Books & Journals

Second Circuit to Resolve Split on Insider Trading

New York Law Journal

This article, “Second Circuit to Resolve Split on Insider Trading,” examines an issue regarding the boundaries of insider trading law that has divided lower courts – whether a "tippee" must have knowledge that the insider received a personal benefit.

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

11.20.13 | Blog Posts

The SEC's 2013 Whistleblower Report: Things Left Unsaid

The Insider: White Collar Defense and Securities Enforcement

Released late last week, the Securities and Exchange Commission’s 2013 Annual Report on the Dodd-Frank Whistleblower Program (the “Report”) revealed that the program has continued to grow in popularity. The Report, however, also reveals the seeds of what may become the program’s future tribulations.

As anticipated, the program certainly appears to be attracting more participants both at home and abroad. The SEC previously reported that it received 3,001 tips, complaints and referrals for fiscal year 2012. That number was up roughly 8%, for a total of 3,238 tips for fiscal year 2013, bringing the total number of tips from whistleblowers since the program’s inception in August 2011, to 6,573. Moreover, the number of those tips, complaints, and referrals which originated from abroad increased by almost 25% in fiscal year 2013 – from 324 in fiscal year 2012 to 404 in fiscal year 2013. The Report also demonstrated that the vast majority of the tips continue to come from generally the same states and countries as they did in 2012, with California, New York, Florida and Texas again leading the pack for the states, and China outpacing India (which fell to fifth place behind Russia this year) to take over the number three spot behind the leaders for the past two years, United Kingdom and Canada. [...]

Related Lawyer: Catherine M. Foti

11.13.13 | Blog Posts

The Anti-Kickback Statute And The Affordable Care Act: A Law Enforcement Tool Suddenly Goes Missing

The Insider: White Collar Defense and Securities Enforcement

With the aggressive pursuit of cases against the pharmaceutical and device industries (including the recent $2.2 billion settlement with Johnson & Johnson), the implementation of Medicare Fraud Strike Forces in major cities throughout the country, and an increase in the potential criminal penalties under the United States Sentencing Guidelines, the federal government’s determination to root out health care fraud has long seemed vigorous and unrelenting. The government has repeatedly touted its continuing dedication to fighting waste and abuse in health care, and has treated this dedication as part and parcel of its efforts to implement health care reform.  Indeed, in a press release issued after the enactment of the health-care reform law, the Department of Health and Human Services (HHS) proclaimed that joint efforts on the part of HHS and the Department of Justice to fight fraud and abuse in the health care industry “will continue to improve with the new tools and resources provided by the Affordable Care Act.” [...]

Related Lawyer: Robert M. Radick

11.06.13 | Blog Posts

Better News For White-Collar Defendants: Okatan Responds To The Supreme Court's Salinas Decision

The Insider: White Collar Defense and Securities Enforcement

The Supreme Court’s June 2013 decision United States v. Salinas raised a few eyebrows among white-collar practitioners because its focus on the need to expressly invoke the Fifth Amendment in order to obtain its protections had broad potential implications. In a recent decision, United States v. Okatan, the Second Circuit correctly answered the question the Supreme Court avoided in Salinas, and also confirmed the long accepted principle that asking for counsel is effective to invoke the Fifth Amendment. Although, like Salinas, Okatan was not a white-collar case, its reasoning and result will be welcome to anyone concerned about the rights of those facing law enforcement scrutiny in the business context, or any other. [...]

Related Lawyer: Richard F. Albert

11.05.13 | Articles, Books & Journals

Courts Push Back Against Government Deals With Companies

New York Law Journal

In several high-profile cases, federal district court judges have asserted broad authority to review the substance of agreements between government enforcement authorities and corporations to resolve investigations of alleged misconduct. This article examines this trend, reflected in decisions in the Southern and Eastern Districts of New York involving financial institutions, and in a recent decision in the District of Massachusetts which rejected proffered guilty pleas by two non-financial companies.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

11.04.13 | Articles, Books & Journals

Staying In Bounds: College Athletics Pose Compliance Hurdles

New York Law Journal

College athletics is big business, accounting for billions of dollars of revenues to the NCAA and its member institutions each year. As with other business organizations, the enormous profits generated through athletic programs creates pressure to win and, with it, conduct that is inconsistent with the institutional mission of colleges and universities. This article discusses the challenges faced by NCAA institutions and the lessons colleges and universities around the country can learn from corporate compliance programs.

Related Lawyer: Jeremy H. Temkin

10.30.13 | Blog Posts

First JPMorgan -- Now Rabobank Versus The United States: Taking One For The Team?

The Insider: White Collar Defense and Securities Enforcement

2013 marks the five-year anniversary of the financial crisis of 2008.  I noted in January that this would play a significant role in white-collar enforcement and regulation in 2013, forcing the government either to act or to abandon forever certain investigations related to the crisis because of the five-year statute of limitations for enforcement actions. In addition to the looming deadline, the government has had to deal with repeated criticism of its overall response to the financial crisis, specifically what some perceive as its poor track record in obtaining criminal convictions.  The government’s money laundering case against British bank HSBC serves as an example – the $1.9 billion settlement and deferred prosecution agreement (DPA) elicited cries that banks and financial institutions were perceived as “too big to jail” and prompted Congressional hearings on the subject. [...]

Related Lawyer: Robert J. Anello

10.28.13 | Articles, Books & Journals

New Justice Department-Swiss Bank Program Announced

New York Law Journal

Continuing its efforts to crack down on undisclosed offshore accounts, the DOJ has initiated a new program for Swiss banks that meet certain criteria. Under this program, banks may apply for either non-prosecution agreements or non-target letters depending on their level of culpability. All banks that participate in the program will be required to provide information regarding the extent of their U.S.-related accounts and to cooperate with the DOJ in the future. Banks receiving non-prosecution agreements will also have to pay substantial penalties. This article discusses the implications of this program for both Swiss banks and their U.S. account holders.

Related Lawyer: Jeremy H. Temkin

10.24.13 | Articles, Books & Journals

SEC Enforcement Data Analyses: Volume 1

The inaugural edition of Morvillo Abramowitz's SEC Enforcement Data Analyses examines SEC cases filed each quarter. This report is based on a detailed analysis of all cases filed by the SEC nationwide and provides practitioners with a useful tool to track cases and trends in SEC enforcement actions.

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10.16.13 | Articles, Books & Journals

Judgment Enforcement And the Separate Entity Rule

New York Law Journal

Recent decisions by courts in the Southern District of New York have reached different conclusions about the continued viability and applicability of the separate entity rule. This article discusses Judge Rakoff’s recent decision in Motorola Credit v. Uzan and how his application of the separate entity rule in the judgment enforcement context may provide relief to international banks with New York branches caught between judgment creditors and judgment debtors in garnishment proceedings.

Related Lawyers: , Edward M. Spiro

10.09.13 | Blog Posts

More Incentives For Whistleblowers: New York Considers A New Law To Reward And Protect Whistleblowers

The Insider: White Collar Defense and Securities Enforcement

In recent years we have seen two trends of great importance to the conduct and defense of government investigations – one, the growth of state agency investigations of matters previously handled on the federal level, and two, the growth of whistleblowing as a basis for government investigations.  These two trends have come together in a proposed New York State law that would establish whistleblower bounties and protections for information given to the New York State Department of Financial Services (“DFS”) – a super agency formed in October 2011 to regulate banks and insurance companies in New York. [...]

Related Lawyer: Jonathan S. Sack

10.02.13 | Blog Posts

Employers Beware: Will The SEC Be A Safety Net For Terminated Whistleblowers?

The Insider: White Collar Defense and Securities Enforcement

Commentators, employers and especially whistleblowers have paid a tremendous amount of attention to the whistleblower bounty provisions of the Dodd-Frank Act.  Much less attention has been paid to an SEC rule implementing the anti-retaliation provisions of that Act, giving the SEC enforcement authority against employers who retaliate against their whistleblowing employees.  The SEC has not yet brought an enforcement action for retaliation, but recent statements by SEC officials indicate that the agency is looking for just such a case to test the bounds of its authority. […]

Related Lawyer: Catherine M. Foti

10.01.13 | Articles, Books & Journals

Calls for Sanity In White-Collar Sentencing

New York Law Journal

Sentences in white collar cases called for by the Sentencing Guidelines often are unduly severe.  Courts and policy makers finally appear to be taking notice and a change may be afoot.  This article, “Calls for Sanity in White-Collar Sentencing,” examines a powerful recent opinion from a judge on a Second Circuit panel that takes issue with courts' mechanical application of the Guidelines concept of “intended loss,” which greatly increases white collar sentences. The article also discusses the long over-due attention the Sentencing Commission is paying to the problem.

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

09.25.13 | Blog Posts

The DOJ Ratchets Up Its Crackdown On Swiss Bank Accounts

The Insider: White Collar Defense and Securities Enforcement

In my last post, I discussed the possibility that Bitcoins and other virtual currencies could replace Swiss bank accounts as the tax havens of the future.  Recent developments in the government’s war on offshore accounts suggest that taxpayers bent on avoiding detection of their assets will need to find a new vehicle soon.
 
The government’s aggressive steps to stamp out the use of bank accounts in Switzerland and other tax havens have been well documented, including here and here.  To summarize, in 2008, the government initiated a criminal investigation against Swiss banking giant, UBS.  This investigation ultimately led to a deferred prosecution agreement with UBS pursuant to which the bank paid $780 million and disclosed the identity of approximately 4,500 U.S. accountholders, as well as the criminal prosecution of one Swiss bank (Wegelin & Co.) and numerous taxpayers, bankers and other professionals. [...]

Related Lawyer: Jeremy H. Temkin

09.18.13 | Blog Posts

Protecting The Rich Or The Poor: The SEC Division Of Enforcement

The Insider: White Collar Defense and Securities Enforcement

Should the SEC devote more resources to supervising the activities of hedge funds in which sophisticated investors invest, or should it devote more resources to investment advisor fraud, where the victims are less able to fight back against wrongdoers?  What is the correct balance for the SEC’s use of its precious resources?

This very question was raised last week in a letter to SEC Chair Mary Jo White by Congressmen Jeb Hensarling (R-Tex) and Scott Garrett (R-NJ), acting respectively as Chairman of the House Committee on Financial Services and Chairman of the Subcommittee on Capital Markets and Government Sponsors Enterprises. […]

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09.17.13 | Articles, Books & Journals

The Promise of 'Booker' Revisited

New York Law Journal

Following the Supreme Court's decision in Booker v. United States, over half of all defendants in federal tax cases are receiving sentences below the applicable Sentencing Guidelines ranges. Simultaneously, however, the percentage of defendants convicted of tax offenses receiving some jail time and the average period of incarceration imposed have both increased in the post-Booker era. This article discusses these statistics and the continuing importance of post-conviction advocacy in the wake of Booker.

Related Lawyer: Jeremy H. Temkin

09.11.13 | Blog Posts

The Supreme Court's Sekhar Decision: More Than A Pyrrhic Victory

The Insider: White Collar Defense and Securities Enforcement

Announced the same day as its path-breaking gay marriage decision, the Supreme Court’s ruling in Sekhar v. United States, addressing the definition of “property” for purposes of an extortion prosecution under the Hobbs Act, got a bit lost in the hubbub.  Both because the Hobbs Act is an important and oft-used weapon in the government’s arsenal, and because the decision appears to be part of a broader trend to cut back on some judge-made rules that have expanded the reach of statutes used to prosecute white-collar crime, the decision is worth a closer look. [...]

Related Lawyer: Richard F. Albert

09.04.13 | Articles, Books & Journals

Why So Few Prosecutions Connected to the Financial Crisis?

New York Law Journal

Many observers have asked why so few criminal cases have been brought to hold individuals accountable for financial transactions that contributed to the financial crisis of 2007 and 2008. This article suggests possible reasons for the Department of Justice's charging decisions to date, including its decided preference for civil rather than criminal charges. The article contrasts the cases arising from the recent financial crisis with the wave of accounting fraud prosecutions brought about 10 years ago.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

09.03.13 | Blog Posts

What Happens Outside The USA, Stays Outside The USA: Reining In The Extraterritorial Reach Of Criminal Securities Laws

The Insider: White Collar Defense and Securities Enforcement

Criminal securities laws do not reach transactions that occur outside the United States. This is the conclusion of the Second Circuit Court of Appeals which last Friday applied the Supreme Court’s reasoning in Morrison v. National Australia Bank to criminal cases. In United States v. Vilar, the Second Circuit held that without specific authority from Congress to do so, the federal government cannot prosecute foreign activity.

Counsel for corporations conducting multinational business should take note – this decision marks a significant setback for United States prosecutors’ efforts to police global business conduct. Its effects will not only be felt in securities fraud cases, but may well extend to other cases involving international activity. In Vilar, Judge Jose A. Cabranes, writing for a unanimous panel, considered the validity of the convictions of Alberto Vilar and Gary Alan Tanaka, two prominent investment managers and advisers. Vilar and Tanaka were found guilty by a jury of lying to clients about the nature and quality of certain investments.  On appeal, the defendants argued that they could not be held criminally liable for securities fraud because the securities purchases at issue occurred outside the United States. [...]

Related Lawyer: Robert J. Anello

08.29.13 | Blog Posts

Sentences, Prosecutors, Costs, Oh My: A Conversation With A White Collar Bar Legend.

The Insider: White Collar Defense and Securities Enforcement

Lawrence S. Bader interviews his partner of many years, Paul R. Grand, who is one of the Bar’s leading white collar criminal defense attorneys, with extensive experience handling complex criminal and civil matters in state and federal trial and appellate courts throughout the country.  Paul  successfully defended Afshin Mohebbi, the former President of Qwest Communications International, Inc., in SEC v. Nacchio, et al. in the District of Colorado. He also defended Timothy Rigas, the former Chief Financial Officer of Adelphia Communications Corporation, in U.S. v. Rigas, et al. in the Southern District of New York.  And most recently Paul represented Anil Kumar, a key witness at the trial of Raj Rajaratnam, and successfully argued for a sentence of probation.

As a former Assistant U.S. Attorney for the Southern District of New York and Chief of its Securities Frauds Unit, and a defense lawyer for 43 years, Paul’s thoughts on the white collar defense practice and the cause of justice are always welcome.  Lawrence Bader has practiced law with Paul for 32 of those 43 years. [...]

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08.20.13 | Articles, Books & Journals

Limiting the Scope of Waiver Under Federal Rule of Evidence 502 (a)

New York Law Journal

A recent Southern District ruling by Magistrate Judge Frank Maas found that a party's intentional disclosure of two privileged documents did not result in a broader waiver of the attorney-client privilege, citing the seldom-invoked Federal Rule of Evidence 502(a). This article discusses that decision and Rule 502's promise of greater predictability over the scope of intentional waivers.

Related Lawyers: Edward M. Spiro

08.14.13 | Blog Posts

Goodbye Switzerland, Hello Bitcoins

The Insider: White Collar Defense and Securities Enforcement

Bitcoins are everywhere. Last week, a federal judge in Texas held that the virtual currency qualifies as a form of money and allowed the SEC to charge a promoter of a scheme to invest in bitcoins with violations of the federal securities laws. Earlier this week, the New York Department of Financial Services issued subpoenas to 22 virtual currency companies with an eye to determining whether the industry needs new regulations, and the Senate Homeland Security and Government Affairs Committee asked several federal agencies for information regarding their policies with respect to bitcoins and other virtual currencies. Combined, these actions will undoubtedly fuel calls to regulate the burgeoning virtual currency market, and the IRS will surely be getting in the action soon. [...]

Related Lawyer: Jeremy H. Temkin

08.07.13 | Blog Posts

When Is A 'Whistleblower' Not Really A 'Whistleblower'?

The Insider: White Collar Defense and Securities Enforcement

Question:  When is a “whistleblower” not really a “whistleblower”?
 
Answer:  When an employee reports potential misconduct only to his or her employer and that employer happens to be located in the Fifth Circuit.
 
Since the promulgation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd Frank”), five federal district courts have held that employees who report suspected wrongdoing to upper management, but not to the U.S. Securities and Exchange Commission (“SEC”), are “whistleblowers” for purposes of the Act, entitled to the protection of Dodd Frank’s anti-retaliation provisions.  Going against the tide, in a recent ruling in Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit Court of Appeals – the first Circuit Court to address this issue – has held exactly the opposite, ruling that an employee who reported a potential Foreign Corrupt Practices Act violation to his employer, G.E. Energy(USA), L.L.C., was not a “whistleblower” because he did not “provide information relating to a violation of the securities laws to the SEC.” [...]

Related Lawyer: Catherine M. Foti

08.06.13 | Articles, Books & Journals

Cooperation Gone Awry: Considerations in Business Cases

New York Law Journal

This article examines the cooperation system and some notable complex white collar prosecutions that have fallen apart after cooperating witnesses have pled guility. It suggests a reexamination of the system with respect to such cases that should include consideration of adjustments to the standard jury instructions regarding cooperator testimony.

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

June/July 2013 | Articles, Books & Journals

Practical Tips for Managing E-Discovery

Today's General Counsel

This article discusses efficient and precise methods for discovering electronically stored information (ESI). As companies attempt to take on more of the e-discovery process to cut expenses, corporate counsel must stay one step ahead with a greater understanding of ESI retention and review. Providing insight into the e-discovery process requires a grasp on various data storage operations and how to monitor these with minimal risk and minimal business interference.

Related Lawyer: Jasmine Juteau

07.31.13 | Blog Posts

A Plant Grows In Brooklyn: EDNY Judge Scrutinizes Deferred Prosecution Deal

The Insider: White Collar Defense and Securities Enforcement

A deferred prosecution agreement (“DPA”) has become a common means of resolving a federal criminal investigation of a company. Under a DPA, criminal charges against the company are filed in court, but prosecution of the case is deferred, while the company takes remedial measures agreed upon with the prosecutor. Everyone expects the charges to be dismissed down the road.  Until recently, federal courts have approved these deals with little or no scrutiny. [...]

Related Lawyer: Jonathan S. Sack

07.25.13 | Blog Posts

The Glaxo-China Bribery Scandal: A New Policeman Walks the Beat

The Insider: White Collar Defense and Securities Enforcement

When it comes to allegations of foreign bribery, what a difference a week can make.  Just over ten days ago, a new player in the world of international bribery – the Chinese Ministry of Public Security – announced that it was investigating senior executives in the Chinese division of British pharmaceutical company GlaxoSmithKline for allegedly offering bribes to officials and doctors in order to boost company sales.  GSK responded at the time with the respect and deference that one would anticipate, stating that it takes “all allegations of bribery and corruption seriously” and that it would fully cooperate with the Chinese authorities.  Regarding the merits of the allegations, however, GSK stated that the company had already conducted an investigation and “found no evidence of bribery or corruption of doctors or government officials.” [...]

Related Lawyer: Robert M. Radick

07.11.13 | Articles, Books & Journals

The Fifth Amendment And Civil Tax Enforcement

New York Law Journal

Attorneys representing taxpayers in “eggshell” audits frequently struggle with the issue of whether (and when) a client should invoke the privilege against self-incrimination since a revenue agent may refer the case to criminal investigators based on information obtained in an audit. The Supreme Court's recent decision in Salinas v. Texas raises the specter that the government can argue that a jury should infer guilt from a defendant's refusal to answer questions during a non-custodial interview. This article discusses Salinas' implications for professionals representing taxpayers in audits.

Related Lawyer: Jeremy H. Temkin

07.10.13 | Blog Posts

Not Your Average Asylum Seeker: Avoiding Extradition Snowden Style

Edward Snowden, the former technical contractor for the National Security Agency who caused quite a sensation by disclosing highly classified documents that reveal the existence and scope of the United States government’s system of monitoring Internet and telephone communications, is not your average asylum-seeker. Snowden has been charged with theft of government property and espionage. By the time the information held by Snowden was leaked to the world last month, he already had fled the United States and taken refuge in Hong Kong. When the United States sought Snowden’s return through its extradition treaty with Hong Kong, Hong Kong officials apparently chose to deal with the political hot potato Snowden has become by asking him to leave. Since June 23, Snowden has been holed up in an airport in Russia. Media reports indicate that Snowden is attempting to avoid extradition altogether by seeking asylum from at least 20 different countries. Although many observers are focused on whether Snowden qualifies for asylum, the question arises – if Snowden’s asylum application is accepted, will his case dilute the asylum process and the safety it provides to the vulnerable individuals who typically seek its protections. [...]

Related Lawyer: Robert J. Anello

07.02.13 | Articles, Books & Journals

Context Matters: Emails In White-Collar Prosecutions

New York Law Journal

The use of electronic mail, or ‘email,’ as a regular means of business communication has had a large impact on white-collar criminal investigations and prosecutions. This article explores the government's reliance on emails to prove a defendant's guilt and courts' caution when reviewing email evidence that lacks sufficient context and corroborating evidence.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

06.27.13 | Blog Posts

Rajaratnam Appeal: Is Snowden Right That Big Brother Is Listening?

On Monday, the Second Circuit Court of Appeals in Manhattan affirmed the 2011 insider trading conviction of Raj Rajaratnam, founder of the Galleon Group hedge funds. The case against Rajaratnam, who is serving a sentence of 132 months imprisonment, was constructed using, among other evidence, 45 secretly recorded phone calls from Rajaratnam’s cell phone during which he shared confidential information about publicly traded companies. The trial court found that the government had acted with “reckless disregard for the truth” in obtaining permission to wiretap Rajaratnam’s phone. A unanimous three-judge panel of the Court of Appeals disagreed. The decision is significant, especially because the investigation into Rajaratnam’s behavior, which also implicated the former director of Goldman Sachs Rajat K. Gupta, is the most prominent example of the use of wiretaps typically associated with organized crime and drugs cases in white collar prosecutions. [...]

Related Lawyer: Robert J. Anello

06.26.13 | Blog Posts

Imagine This -- Détente Between the Right and the Left On Prison Reform!

The Insider: White Collar Defense and Securities Enforcement

Can you imagine political conservatives advocating prison reform? It is hard to imagine if you are old enough to remember the infamous Willie Horton ads from the 1988 U.S.Presidential race. Willie Horton was a convicted murderer who did not return from furlough, and ultimately committed assault, armed robbery and rage. The campaign of George H.W. Bush seized on the case of Willie Horton in an effort to portray Democratic candidate, Michael Dukakis, as soft on crime. [...]

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06.19.13 | Blog Posts

The Supreme Court's Decision in Salinas v. Texas: Implications for White Collar Investigations

The Insider: White Collar Defense and Securities Enforcement

At the outset of a white collar investigation, counsel will invariably advise the client that if a government investigator unexpectedly appears seeking to “just ask a few questions,” the client should politely decline and direct the investigator to counsel. Although the Supreme Court’s decision this past Monday, June 17, 2013 in Salinas v. Texas relates to police questioning in the context of a murder investigation, it has implications for this common aspect of white collar investigations. […]

Related Lawyer: Richard F. Albert

06.18.13 | Articles, Books & Journals

The Outer Edge of Edge Act Jurisdiction

New York Law Journal

The Second Circuit recently announced limits on federal court jurisdiction under Section 632 of the Edge Act, a statute allowing federal court jurisdiction in cases involving international banking transactions by federally chartered banks. This article discusses the limits of jurisdiction under Section 632 and the unsuccessful efforts to utilize it in litigation involving residential mortgage-backed securities.

Related Lawyers: , Edward M. Spiro

06.13.13 | Blog Posts

SOX And Whistleblowers - Any Fraud Will Do

The Insider: White Collar Defense and Securities Enforcement

Section 806 of the Sarbanes-Oxley Act (“SOX”) prohibits publicly-traded companies from retaliating against employees who report various acts of wrongdoing to their employers. Employers have consistently attempted to narrow the protections afforded employees under this section, arguing that SOX covers only reports of conduct amounting to a fraud on the company’s shareholders. Now, a recent Tenth Circuit opinion, Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 11-9524, 2013 WL 2398691 (10th Cir. June 4, 2013), has held that the employers’ narrow reading is wrong and that Section 806 is significantly broader, essentially finding that a report identifying any fraud or violation of an SEC regulation, even if it does not impact shareholders, triggers SOX’s protections. Although attorneys representing management have suggested that this opinion will not change the way employers deal with whistleblowers, it should. […]

Related Lawyer: Catherine M. Foti

06.04.13 | Articles, Books & Journals

Overcriminalization of Non-Violent Conduct: Time for Real Reform

New York Law Journal

This article discusses the problem of over criminalization and whether proposed remedies, including those that may be recommended by the House Judiciary Committee task force recently established to consider the issue, can be effective.

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

05.29.13 | Blog Posts

Caronia And The First Amendment Defense To Off-Label Marketing: A Six Month Re-Assessment

The Insider: White Collar Defense and Securities Enforcement

When the Second Circuit issued its December 3, 2012 decision in United States v. Caronia, the opinion was proclaimed by many to signal a sea change in the prosecution of off-label promotion. Alfred Caronia, a former sales representative for the pharmaceutical company Orphan Medical, had been convicted at trial of conspiring to promote the drug Xyrem for uses not approved by the Food and Drug Administration ("FDA"). On appeal, Caronia advanced an argument that had been pursued by others for years, and had, in Caronia’s case, failed to persuade the district court: that the First Amendment protected his truthful promotion of a drug for indications not approved by the FDA. After over two years in which observers eagerly anticipated a ruling, the Second Circuit issued a two-to-one decision in which the majority vacated Caronia's conviction on the ground that it impermissibly criminalized protected speech and violated his First Amendment rights. [...]

Related Lawyer: Robert M. Radick

05.16.13 | Blog Posts

New Justice Department’s FIRREA Cases Against Banks: Holding The Victim Responsible

The Insider: White Collar Defense and Securities Enforcement

The government's ever-evolving response to the United States financial crisis has come full circle, as civil Justice Department Attorneys seek to rely on legislation enacted to protect financial institutions from fraud to sue those very same institutions. Recently, the United States Attorney's Office for the Southern District of New York has initiated a number of law suits under the "obscure" Financial Institutions Reform Recovery Enforcement Act (FIRREA). FIRREA was enacted in 1989 in response to the massive failure of almost half of America's savings and loan institutions. In its 24 year history, the law typically has been used to bring suit against officers and directors of failed institutions. The government now seeks to expand the statute's reach to include the institutions themselves. [...]

Related Lawyer: Robert J. Anello

05.09.13 | Blog Posts

Law Enforcement In The Health Care Industry: What Do New Cases Against Novartis Tell Us?

The Insider: White Collar Defense and Securities Enforcement

In recent years, pharmaceutical companies have faced criminal investigations and charges in regard to alleged off-label marketing of prescription drugs and kickbacks to doctors. For this reason, the filing last month of two civil cases against Novartis was noteworthy and may aid defense lawyers in their efforts to oppose criminal charges being filed against clients in the health care industry. [...]

Related Lawyer: Jonathan S. Sack

05.08.13 | Articles, Books & Journals

The IRS, Email Privacy And the Legislative Answer

New York Law Journal

Pursuant to the Electronic Communications Privacy Act of 1986, the government can obtain emails and electronic data stored by third parties like Google, Yahoo! and Facebook. Given the dramatic changes in the way people use technology over the past 27 years, Congress is presently drafting legislation aimed at bringing the rules regulating the government's access to electronic communications into the 21st century. As discussed in this article, this effort is likely to get a boost from publicity surrounding the recent release of internal IRS documents describing the agency's policies regarding how it obtains emails, text messages and other private electronic communications. While the IRS's historical practices appear to have been consistent with those applied by other law enforcement agencies, the public response to the IRS's documents and recent federal court decisions addressing the protection to be accorded emails demonstrate the need for legislative action.

Related Lawyer: Jeremy H. Temkin

05.07.13 | Articles, Books & Journals

The 'Civil-izing' of White-Collar Criminal Enforcement

New York Law Journal

In recent congressional testimony, Attorney General Eric Holder acknowledged that prosecutors would hesitate before filing criminal charges against a large financial institution because of the effect on the economy of such a prosecution. This article argues that the Attorney General's comments reflect a shift by DOJ, following the demise of Arthur Andersen, toward settlements with companies that either avoid criminal convictions or seek to mitigate their impact on innocent third parties.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

05.01.13 | Blog Posts

Bank Leumi Snafu Jeopardizes DOJ-IRS Offshore Enforcement Initiatives

The Insider: White Collar Defense and Securities Enforcement

Three times over the past four years, the IRS has given taxpayers with undisclosed offshore accounts the opportunity to come clean and avoid prosecution. While the most recent offer – the 2012 Offshore Voluntary Disclosure Program (OVDP) – remains open indefinitely, the IRS's recent decision to disqualify approximately 50 taxpayers who disclosed Bank Leumi accounts could undermine the program's continued success. [...]

Related Lawyer: Jeremy H. Temkin

04.29.13 | Articles, Books & Journals

'Concepcion's' Lasting Effects: Class Action Waivers Preempt FINRA Rules

New York Law Journal

In our June 24, 2011, article for NYLJ Outside Counsel, titled "How 'AT&T Mobility' Changes the Course of Securities Class Actions, Arbitrations," we discussed the then-recent U.S. Supreme Court decision in AT&T Mobility v. Concepcion and predicted that Concepcion, which held the Federal Arbitration Act (FAA) preempts state law defenses to contractual class action and arbitration waivers, would likely lead to a conflict between the FAA and long-standing FINRA rules prohibiting member firms from compelling class litigants to arbitrate their disputes. This article discusses an opinion issued by a FINRA Hearing Panel, in the matter of Department of Enforcement v. Charles Schwab & Co., holding that, consistent with Concepcion, the brokerage could not be penalized by FINRA for inserting a class action and arbitration waiver provision into their customer agreements.

Related Lawyers: Catherine M. Foti

04.23.13 | Blog Posts

Judging The SEC’s Division Of Enforcement With 20/20 Foresight

The Insider: White Collar Defense and Securities Enforcement

I almost feel sorry for Mary Jo White, the Chairman of the SEC, and Andrew Ceresney and George Canellos, soon to be Co-Directors of the SEC’s Division of Enforcement. Four days after Ms. White was sworn in, Gretchen Morgenson of the New York Times was reminding Ms White on page one of the Times' Sunday Business Section that time was running out on the SEC's ability to bring cases based on "questionable practices and disclosures arising from the mortgage bust of 2008." [...]

Related Lawyer:

04.17.13 | Blog Posts

Is The Medium The Message? Netflix’s Decision To Post Material Information On Social Media Channels

The Insider: White Collar Defense and Securities Enforcement

The news is out! There's a buzz in the blogosphere. It's trending on Twitter. The Securities and Exchange Commission has authorized the use of social media channels for the disclosure of material, non-public information. In a Report of Investigation released earlier this month, announcing that its Division of Enforcement determined not to pursue an enforcement action against Netflix, Inc. and its Chief Executive Officer Reed Hastings, the SEC provided guidance regarding how issuers using social media channels to disseminate material non-public information may comply with Regulation FD and the Commission's August 2008 Guidance on the Use of Company Web Sites. [...]

Related Lawyer: Catherine M. Foti

04.16.13 | Articles, Books & Journals

Allegations Supporting Diversity Jurisdiction Get Close Scrutiny

New York Law Journal

This article discusses three decisions from the U.S. District Court for the Southern District of New York pertaining to federal diversity jurisdiction. These cases serve as a reminder that the dictates of the diversity statute, 28 U.S.C §1332, may not be as plain as they appear, especially to a judiciary growing skeptical of the continued need for diversity jurisdiction as a protection against local bias by state courts.

Related Lawyers: Edward M. Spiro

04.10.13 | Blog Posts

A Trend? Another Ruling That Mailing Does Not Support Mail Fraud

The Insider: White Collar Defense and Securities Enforcement

Two decisions do not ordinarily a trend make. But when New York federal judges author two circuit court opinions, issued within approximately three months of each other, dismissing mail fraud claims for failing to satisfy the "mailing" requirement, it is worth noting. [...]

Related Lawyer: Richard F. Albert

04.05.13 | Articles, Books & Journals

Competing Approaches to FCPA Enforcement: Recent Cases Diverge

New York Law Journal

Within two weeks of each other, two judges in the SDNY reached different results in two SEC cases alleging violations of the Foreign Corrupt Practices Act. In both cases, the defendant never set foot in the United States. One judge ruled that there was personal jurisdiction over the defendant. The other ruled that there was no personal jurisdiction. A careful reading of the cases leaves the reader at a loss to articulate a guiding principle that should apply to the jurisdictional question raised in both cases.

Related Lawyer:

04.04.13 | Blog Posts

The Cahill Prosecution In Massachusetts: Vagueness Is Still A Problem After Skilling

The Insider: White Collar Defense and Securities Enforcement

Vagueness is a common problem in white-collar criminal cases. In many instances the line between legal and illegal conduct is blurry at best. This means that someone could face prosecution, a damaged reputation, loss of livelihood and prison time for conduct he or she did not know, and could not reasonably have known, was criminal. [...]

Related Lawyer: Jonathan S. Sack

04.02.13 | Articles, Books & Journals

Escaping 'Nixon's' Legacy: the Proper Standard for Rule 17(c) Subpoenas

New York Law Journal

This article discusses the courts' treatment of criminal defendants' document subpoenas to third parties under Rule 17(c) of the Federal Rules of Criminal Procedure. Over the years, the practical utility of these subpoenas has been limited because courts have tended to hold them to the demanding standard that the Supreme Court utilized in United States v. Nixon, even though that standard arose in a different context. The article discusses how in recent decisions, however, courts have properly begun to depart from the rote application of the Nixon standard.

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

03.28.13 | Blog Posts

Restatements Resurrected?: Accounting Fraud By The Numbers

The Insider: White Collar Defense and Securities Enforcement

Several months ago, I raised the question of why the large-scale accounting fraud cases of the type that had been so prevalent in the early 2000s were no longer a staple for either federal prosecutors or the SEC. In so doing, I was not the only one to have noted a dramatic shift away from such cases towards investigations involving Ponzi [...]

03.25.13 | Articles, Books & Journals

Labor Law Caught in Constitutional Crisis

New York Law Journal

President Obama and Congressional Republicans are in the midst of a constitutional showdown over the President's recess appointment power. President Obama's appointees to the National Labor Relations Board (NLRB) aggressively expanded the rights of employees and unions throughout 2012. Now in Noel Canning v. NLRB (January 25, 2013), the D.C. Circuit has held that the President's recess appointments to the NLRB are unconstitutional, likely leading to a Supreme Court resolution of this showdown that could drastically change the direction of federal labor law. This article examines the Noel Canning decision and its impact on the NLRB's recent expansion of employee rights.

Related Lawyers: Catherine M. Foti, Curtis B. Leitner

03.20.13 | Blog Posts

ProPublica's "Dollars for Docs": Will The Physician Payments Sunshine Provisions Clear The Haze?

The Insider: White Collar Defense and Securities Enforcement

On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-delayed final rule that is intended to implement the Physician Payments Sunshine provisions that were included in the Patient Protection and Affordable Care Act. Under these provisions, which were passed in March 2010 and were originally due to be implemented in 2012, doctors and teaching hospitals will be required to report the payments that they receive from pharmaceutical and device manufacturers, with the stated goal being to shed light on the financial relationships between physicians and the industry. [...]

Related Lawyer: Robert M. Radick

03.14.13 | Articles, Books & Journals

Sentencing for Tax Crimes: Giving Credit for Untaken Deductions

New York Law Journal

In criminal tax cases, the "advisory" Sentencing Guidelines are predicated on an estimate of the "tax loss" resulting from the defendant's conduct. Over the years, the United States Courts of Appeals have split on the issue of whether the "tax loss" computation should be reduced by any deductions the defendant failed to take on his original returns. This article explains the issue, the different approaches taken by the Courts of Appeals and amendments being considered by the Sentencing Commission to address the issue.

Related Lawyer: Jeremy H. Temkin

03.14.13 | Blog Posts

Harvard's Secret E-Mail Search: The Intersection of Internal Investigations and Digital Privacy

The Insider: White Collar Defense and Securities Enforcement

Earlier this week, Harvard University acknowledged the fact that, in the wake of last summer's cheating scandal that rocked the campus, it had secretly searched the e-mail accounts of 16 Resident Deans. The e-mail search was undertaken last August in an effort to determine who had leaked to the media a "confidential" internal e-mail regarding the cheating and also to determine whether any personal student information had been leaked. Harvard did not acknowledge the fact that it had searched the e-mails until this week, seven months after the searches and only after the Boston Globe broke the story. In the days since Harvard’s surreptitious e-mail search became public, the University has fallen under enormous criticism from faculty, administrators and privacy advocates, all of whom feel blindsided and violated by the University's unannounced and undisclosed search of electronic data. But Harvard's approach highlights the interesting and complex issues surrounding the competing concerns companies and institutions have in both conducting thorough internal investigations while, simultaneously, protecting the privacy interests of their employees in the digital age. [...]

Related Lawyer: Benjamin S. Fischer

03.07.13 | Blog Posts

Twists, Turns, PIPEs, And Screws: Insider Trading And Mark Cuban

The Insider: White Collar Defense and Securities Enforcement

On Tuesday, March 5, the SEC’s insider trading case against billionaire Dallas Mavericks owner Mark Cuban took a new twist when a federal district court in Texas declined to end the 2008 civil enforcement action. The SEC alleges that Cuban engaged in insider trading when he sold 600,000 shares of Mamma.com Inc., a company in which he was the largest shareholder, after learning the company intended to offer a private investment in public equity (PIPE). Although the Court characterized the evidence against Cuban as “spotty,” “brief,” and “ambiguous,” it nevertheless concluded that the case should be allowed to proceed to trial because, according to the Court, certain understandings that Cuban would not disclose or trade based upon confidential information he received, may have been “implicit” in the communications between Cuban and company insiders. Unfortunately, the Court’s decision, a self-proclaimed “close” call, further muddies the waters of insider trading law. [...]

Related Lawyer: Robert J. Anello

03.05.13 | Articles, Books & Journals

Why So Few Individuals? Government's Prosecution of Corporate Misconduct

New York Law Journal

Courts and commentators have recently questioned why the government has not more aggressively prosecuted individuals when companies have admitted or otherwise settled charges of misconduct. This article suggests that individuals have not been charged not because of timidity on the part of prosecutors but, rather, based on a realistic assessment of the difficulty of proving an individual's guilt - a difficulty that the government itself may be masking by overstating the strength of its case against companies.

Related Lawyers: Elkan Abramowitz, Jonathan S. Sack

02.27.13 | Blog Posts

Required Records, The Act Of Production And Secret Offshore Accounts

The Insider: White Collar Defense and Securities Enforcement

The Fifth Amendment dictates that no person "shall be compelled in any criminal case to be a witness against himself." While most non-lawyers (and many lawyers) might assume that this simple edict means the government cannot force an individual to produce incriminatory documents, the law is far more muddled. And lawyers representing taxpayers with undisclosed offshore accounts are asking the United States Supreme Court to clarify the scope of the privilege against self-incrimination in this important context. [...]

Related Lawyer: Jeremy H. Temkin

02.27.13 | Blog Posts

Supreme Court in Gabelli: Clock Starts Ticking When Fraud Occurs, Not When It's Discovered

The Insider: White Collar Defense and Securities Enforcement

The law requires the SEC to bring enforcement actions seeking penalties against individuals who violate the securities laws within five years. The Supreme Court issued a unanimous ruling today that rejects the SEC’s argument that the five year clock begins to tick when they discover any alleged wrongdoing rather than the date on which the wrongdoing was committed. The author previously has suggested that the application of the SEC’s proposed "fraud discovery rule" by a government agency charged with investigation and enforcement would be counter-productive and effectively would eliminate the five year statute of limitations. To put this into context, [...]

Related Lawyer: Robert J. Anello

02.20.13 | Blog Posts

The Nomination Of Mary Jo White: More Than Just Politics

The Insider: White Collar Defense and Securities Enforcement

The President's nomination of Mary Jo White to become Chairman of the SEC has generated reservations as well as praise. Naysayers wonder whether her years in private practice representing banks and bankers, including J.P. Morgan Chase, Kenneth Lewis of Bank of America andJohn Mack of Morgan Stanley, will make it impossible for her to “switch sides” and hold financial companies accountable for violations of the law. [...]

Related Lawyer: Jonathan S. Sack

02.19.13 | Articles, Books & Journals

Saved by Ambiguity: Preliminary Injunction Granted for D&O Coverage

New York Law Journal

Adequate D&O insurance coverage is indispensable protection for corporate executives and directors. However, the conduct of a single covered individual can potentially jeopardize coverage for the entire group of insureds in a way few might have anticipated. This article discusses a Southern District case, XL Specialty Insurance v. Level Global Investors, highlighting this issue.

Related Lawyers: , Edward M. Spiro

02.13.13 | Blog Posts

Down The RICO Rabbit Hole: John Reynolds And The Hospital For Special Surgery

The Insider: White Collar Defense and Securities Enforcement

To state that the federal RICO statue has long since slipped the bounds of Congress’s original intent is hardly a novel observation. Although the U.S. Attorney’s Manual points out that "the purpose of the RICO statute is 'the elimination of the infiltration of organized crime and racketeering into legitimate organizations,'" the very same paragraph of the Manual proclaims that "the statute is sufficiently broad to encompass illegal activities relating to any enterprise affecting interstate or foreign commerce." The varied range of successful federal prosecutions premised on the RICO statute only proves the point, and numerous industries, including health care, have thus come within the statute's reach. [...]

Related Lawyer: Robert M. Radick

02.06.13 | Articles, Books & Journals

EMR Adoption May Be Riskier Than Expected

Law360

Though the adoption of Electronic Medical Records (EMRs) was expected to create greater efficiencies and improvement in the quality of medical care, recent assessments of EMRs and their utility have begun to grow darker. This article discussed emerging issues regarding EMRs, and focuses in particular on the increasing concerns about their use as a means to commit health care fraud.

Related Lawyer: Robert M. Radick

02.06.13 | Blog Posts

Lance Armstrong – Rorschach Test

The Insider: White Collar Defense and Securities Enforcement

The criminal justice system – particularly at sentencing – necessarily puts an unflattering light on those who have committed crimes. Prosecutors correctly inform the sentencing court of the bad deeds that resulted in the defendant’s conviction. Probation Officers also traditionally focus on the crime, and ignore (or give short shrift) to the defendant’s good deeds. [...]

Related Lawyer:

02.05.13 | Articles, Books & Journals

The Boundaries of a Seemingly Limitless Mail Fraud Statute

New York Law Journal

The federal mail fraud statute is a broad catch-all criminal law that has been called the prosecutor's 'secret weapon.' It, however, is not without limits. This article discuss the history and jurisprudence of the mail fraud statute, and, in particular, a recent decision by the Ninth Circuit authored by none other than SDNY Judge Jed Rakoff, sitting by designation. In that case, United States v. Phillips, Judge Rakoff, who published a scholarly article on mail fraud before taking the bench, examined the requirement that the mailing be 'for the purpose of executing' the fraudulent scheme.

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

01.30.13 | Blog Posts

Mary Jo White as SEC Chairman

The Insider: White Collar Defense and Securities Enforcement

President Obama's recent naming of Mary Jo White to be Chairman of the SEC has been greeted with praise from almost all quarters. But because she is best known for her highly successful tenure as a federal prosecutor, in response to the news of her current appointment, some have raised questions about, as the New York Times put it, her “command of Wall Street arcana” because “[r]egulatory chiefs are often market experts or academics.” [...]

Related Lawyer: Richard F. Albert

01.25.13 | Articles, Books & Journals

Time to Revisit the 'Klein' Conspiracy Doctrine

New York Law Journal

Since the Second Circuit's 1957 decision in United States v Klein, defendants in criminal tax cases have commonly been charged with having conspired to "impede, impair, defeat and obstruct" the Internal Revenue Service in the "ascertainment, evaluation, assessment and collection" of income taxes. While commentators have questioned the statutory authority for the so-called Klein conspiracy, challenges to the charge have rarely gained traction. In late November 2012, however, the Second Circuit decided United States v Coplan in which it recognized "infirmities in the history and deployment" of the conspiracy statute to efforts to impede or obstruct the IRS. This article discusses the Coplan decision, the continuing validity of the Klein doctrine, and the possibility that the Supreme Court will address the issue.

Related Lawyer: Jeremy H. Temkin

01.23.13 | Blog Posts

White Collar Practice In 2013: An Old Look For A New Year?

The Insider: White Collar Defense and Securities Enforcement

2012 was a big year in the government's pursuit of white collar crime. 2013 – the five year anniversary of the financial crisis – brings new legislators, new regulators, and the possibility that a looming statute of limitations may compel authorities to act or forever abandon certain investigations that arose as a result of the economic crisis. Nevertheless, the landscape of white collar enforcement and financial regulation in the coming year is likely to look familiar. [...]

Related Lawyer: Robert J. Anello

February 2013 | Articles, Books & Journals

Corporate Criminal Liability: When Is Enough Too Much?

Business Crimes Bulletin

Aggressive prosecutions of corporate misdeeds and complaints by the public that companies and their executives are not being punished enough both are in vogue. This article discusses the evolution of corporate criminal liability in the United States and the manner in which the government typically holds a corporation accountable for employee misconduct. The article concludes that the government's increased reliance on deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) is reasonable given the harshness of judicially-created law deeming corporate entities criminally liable for the acts of even a few wrongdoers.

Related Lawyer: Robert J. Anello

01.16.13 | Blog Posts

It's Time For The SEC To Join The Digital Age: Why The SEC's Attempted Crackdown On The Use Of Social Media Is Misguided

The Insider: White Collar Defense and Securities Enforcement

Early last month, Netflix disclosed the fact that it and its Chief Executive Officer, Reed Hastings, had received “Wells Notices” from the Staff of the Securities and Exchange Commission. Those Wells Notices threatened civil claims and cease and desist proceedings against the company and Mr. Hastings predicated on Mr. Hastings' June 2012 Twitter post touting the fact that Netflix users had streamed more than 1 billion hours of video that month. The SEC believes that Mr. Hastings' post potentially violated SEC Regulation Fair Disclosure (Regulation FD), which requires companies and their representatives to disclose material nonpublic information through the filing of a Form 8-K [...]

Related Lawyer: Benjamin S. Fischer

01.09.13 | Blog Posts

Will The NLRB’s Protection Of Water Cooler Conversations Trump A Company’s Right To Keep Its Investigations Confidential?

The Insider: White Collar Defense and Securities Enforcement

Over the past year, the National Labor Relations Board has issued a series of decisions that have significantly expanded the rights of non-supervisory employees, including non-unionized employees, to discuss information that many employers would consider confidential, and even post this confidential information on social media sites. This expansion includes an employee's right to discuss the content of investigative interviews, even when an employer directs an employee to keep the interview confidential. Although the NLRB has yet to directly opine on the subject, these decisions may have serious implications for the corporate attorney-client privilege. [...]

Related Lawyer: Catherine M. Foti

01.07.13 | Articles, Books & Journals

Privacy and Technology: Balancing Competing Interests

New York Law Journal

The law regarding the Fourth Amendment's application to digital evidence continues to evolve as each branch of government tries to keep pace with society's increased reliance on technology, with legislators and the courts working to frame the limits of government access while balancing competing societal privacy expectations. This article looks at circumstances under which the government can obtain digital information.

Related Lawyer: Elkan Abramowitz

12.19.12 | Blog Posts

The Fiscal Cliff And A Call For A Simpler Internal Revenue Code

The Insider: White Collar Defense and Securities Enforcement

President Obama and Speaker Boehner’s discussions aimed at avoiding the fiscal cliff will almost certainly result in the government collecting more taxes: either by increasing the rates paid by upper-income Americans, by closing loopholes that favor the wealthy, or a combination of the two. Both sides of this debate invoke “fairness” in support of their position, but based on the dialogue (or lack thereof) in Washington, it appears that fairness, like beauty, is in the eye of the beholder. [...]

Related Lawyer: Jeremy H. Temkin

12.18.12 | Articles, Books & Journals

Whistleblowers: A Dilemma For The Defense

Law360

The Securities and Exchange Commission’s whistleblower bounty program, which has been in effect for just over a year, has prompted a drastic increase in the number of individuals providing information of potential wrongdoing to the SEC. This article discusses the challenges that the prevalence of whistleblowers and the special protections offered to them creates for defense attorneys and the companies they represent.

Related Lawyer: Catherine M. Foti

12.18.12 | Articles, Books & Journals

Mediation Confidentiality: Meaningful but Not Absolute

New York Law Journal

Mediation plays an important role in resolving litigation at all levels of complexity yet the promise of confidentiality for mediation materials while broad, is not guaranteed. This article examines the recent Southern District decision in Dandong v. Pinnacle Performance which, guided by the Second Circuit's 2011 opinion in In re Teligent, discusses the extraordinary need a third party must show in order to obtain disclosure of mediation materials.

Related Lawyers: Edward M. Spiro

12.12.12 | Blog Posts

Is the Current Wave of Insider Trading Cases a Deterrent to Others?

The Insider: White Collar Defense and Securities Enforcement

As sentences in insider trading cases have grown longer, insider trading has continued, apparently at historically high rates, with increasingly longer sentences being meted out. However, the longer sentences do not appear to deter insider trading. What does deter insider trading is the likelihood of getting caught. And the likelihood of getting caught is largely a function of Congressional funding of investigations and prosecutions of white collar crime. [...]

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12.11.12 | Blog Posts

Does Misdemeanor Misbranding Survive Caronia?

The Insider: White Collar Defense and Securities Enforcement

The Court of Appeals for the Second Circuit sent shockwaves through the pharmaceutical industry with its decision in United States v. Caronia. Alfred Caronia was a pharmaceutical sales representative convicted of a misdemeanor conspiracy to introduce a misbranded drug. When promoting Xyrem, a prescription narcolepsy drug, Caronia made comments to a doctor about various uses of the drug that had not been approved by the Food and Drug Administration. The government did not contest at trial the truthfulness of the comments to the doctor. Though it was, and is, lawful and common for doctors to prescribe medication "off-label" [...]

Related Lawyer: Jonathan S. Sack

12.05.12 | Blog Posts

EMRs: The New Health Care Fraud Frontier?

The Insider: White Collar Defense and Securities Enforcement

Whether referred to as electronic medical records, electronic health records, or electronic patient records, there is no doubting the tremendous potential benefits that the digitization of medical data holds for the health care industry and the public at large. EMRs can make a patient’s medical information readily accessible to a range of treating professionals, whether for routine visits or emergencies in which a patient cannot personally provide the critical information practitioners require. EMRs also permit doctors to preserve information [...]

Related Lawyer: Robert M. Radick

12.04.12 | Articles, Books & Journals

Rajaratnam, 'Necessity' and the Path for Future Wiretaps

New York Law Journal

Although the "pioneering nature" of the use of wiretaps in the insider trading case of United States v. Rajaratnam has received a great deal of media attention, the statutory prerequisites to wiretapping have received little prior close legal scrutiny in white-collar cases. This article discusses the wiretap law's "necessity" requirement, which is intended to limit the government's use of wiretaps. The article suggests that the Second Circuit use the opportunity presented by Rajaratnam to define this requirement more rigorously than it has in prior decisions.

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

11.21.12 | Blog Posts

The Government's War Against Financial Industry Crimes Continues with a Record-Breaking Insider Trading Case, But It's Still Too Soon to Declare a Winner

The Insider: White Collar Defense and Securities Enforcement

The Department of Justice and Securities Exchange Commission loudly have trumpeted victories achieved in their renewed battle against insider trading and Wall Street malfeasance, repeatedly warning that there are more cases to come. Just yesterday, the United States Attorney for the Southern District of New York announced “the most lucrative insider trading scheme ever charged” against a former portfolio manager of the well-known hedge fund, SAC Capital Advisors. [...]

Related Lawyer: Robert J. Anello

11.16.12 | Blog Posts

First Year Anniversary of the Dodd-Frank Whistleblower Program: Not Much More than Paper

The Insider: White Collar Defense and Securities Enforcement

The Securities Exchange Commission’s Annual Report on the Dodd-Frank Whistleblower Program for Fiscal Year 2012 (the “Report”), released yesterday, reveals a number of things. The SEC has received a lot of tips, complaints, and referrals: A total of 3,001 in fiscal year 2012 with the lowest number (166) in November 2011 and the highest number (313) in May 2012. Those tips, complaints, and referrals came from [...]

Related Lawyer: Catherine M. Foti

11.14.12 | Blog Posts

Accounting Fraud Cases Are Dead. Long Live Accounting Fraud Cases.

The Insider: White Collar Defense and Securities Enforcement

For defense lawyers of a certain vintage, the early 2000s were a veritable golden age for accounting fraud cases. The marquee cases and investigations of the day – Enron, Computer Associates, Xerox, Adelphia, WorldCom, and Royal Ahold, among many others – were big, complex, and resource-intensive. They also were interesting and nuanced. And while many did result in guilty verdicts or onerous SEC settlements, [...]

11.14.12 | Articles, Books & Journals

Getting Right With the IRS: The ‘Fresh Start’ Program

New York Law Journal

The Great Recession has severely impacted many Americans, leaving them with overwhelming financial burdens. Beginning in February 2011 the IRS adopted a "Fresh Start" initiative to provide individuals and small businesses with a number of options to mitigate their outstanding tax obligations. This article addresses the IRS's initiative and how it impacts taxpayers and practitioners representing them.

Related Lawyer: Jeremy H. Temkin

11.06.12 | Articles, Books & Journals

The Debate About Deferred And Non-Prosecution Agreements

New York Law Journal

In recent years, the Justice Department and other government agencies have increasingly turned to deferred prosecution agreements and non-prosecution agreements as means for combating corporate crime. This article examines the ongoing debate over the efficacy of DPAs and NPAs and the government’s expanding reliance on these agreements.

Related Lawyer: Elkan Abramowitz

10.25.12 | Articles, Books & Journals

Forced Waiver of the Corporate Attorney-Client Privilege

Corporate Counsel

This article discusses the growing line of cases allowing individual defendants—largely former corproate officers and directors—to overcome an assertion of the attorney-client privilege by their former companies in order to defend themselves in civil and criminal litigation.

Related Lawyers:

10.24.12 | Blog Posts

Financial Institutions: How Much More Will You Have to Spend on Anti-Money Laundering Programs to Avoid Criminal Prosecution?

The Insider: White Collar Defense and Securities Enforcement

The price of doing financial business in the United States has just gone up. The Department of Justice is taking a new tack in its efforts to track and prosecute money laundering that occurs through financial institutions. Rather than focusing on money laundering that results from substantive criminal violations [...]

Related Lawyer: Robert J. Anello

10.17.12 | Articles, Books & Journals

Who Would Have Thought? Removal Of Non-Diverse State Law Claims

New York Law Journal

This article discusses the recent decision in Reserve Management v. Willkie Farr & Gallagher, permitting removal of claims traditionally thought to be within the exclusive province of state courts, even in the absence of diversity jurisdiction.

Related Lawyers: , Edward M. Spiro

10.17.12 | Blog Posts

Filing Late Tax Returns: Reducing Penalties and the Risk of Prosecution

The Insider: White Collar Defense and Securities Enforcement

April 15 is commonly viewed as “Tax Day” in the United States, but approximately 11 million taxpayers take advantage of the automatic extension that allows them to file their returns by October 15. While many taxpayers file for this six month extension because of unavoidable delays in obtaining information from third parties, for some taxpayers the decision to “go on extension” [...]

Related Lawyer: Jeremy H. Temkin

10.09.12 | Articles, Books & Journals

Analyzing Selective Waiver of Privilege Under New York Law

New York Law Journal

"Selective" waiver of attorney-client privilege and work product protection has been considered extensively by federal courts. In contrast, New York state case law is sparse, even as high-profile investigations of white-collar offenses by state agencies are on the rise, and companies often find themselves in parallel civil litigation in state courts. This article discusses New York state court decisions on selective waiver and contrasts them with federal case law.

Related Lawyer: Jonathan S. Sack

10.03.12 | Blog Posts

Insider Trading: What Happens When the Victim Says That There Was No Crime?

The Insider: White Collar Defense and Securities Enforcement

Under the “misappropriation theory” of insider trading, a person violates the securities laws by breaching a fiduciary duty to keep information confidential. But what happens when the entity to whom the fiduciary duty was owed concludes, after the fact, that the person at issue did not violate any fiduciary duty? Can the SEC still sue that person for insider trading? [...]

Related Lawyer:

10.02.12 | Articles, Books & Journals

Justice Department Flexes Muscle In Anti-Money Laundering by Banks

New York Law Journal

Recent money laundering prosecutions illustrate nascent attempts to criminalize regulatory non-compliance by focusing on what the government believes are improper banking procedures or compliance weaknesses. Financial institutions long used to measuring their anti-money laundering program against the norms established by bank regulators will now have to consider whether their programs measure up to Justice Department standards, enforced by the threat of criminal prosecution. This article discusses new trends in anti-money laundering investigations, and what this means for the banking industry and other financial institutions.

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

09.25.12 | Blog Posts

Claims Data and Health Care Fraud: The Controversy Continues

The Insider: White Collar Defense and Securities Enforcement

While there may be truth to the old saying that there are “lies, damn lies, and statistics,” the use of claims data to detect fraud in the health care industry has often been thought to be beyond reproach. Data mining techniques and investigations that stem from billing anomalies have been the bread and butter of the federal government’s Medicare Fraud Strike Force; prosecutions that have arisen from claims data have resulted in significant prison sentences for those convicted of defrauding public health care programs and private insurers; and press releases issued by Department of Justice officials trumpet the importance of claims data [...]

Related Lawyer: Robert M. Radick

09.19.12 | Blog Posts

Would $104 Million IRS Whistleblower Get Stiffed Under Dodd-Frank?

The Insider: White Collar Defense and Securities Enforcement

The recent announcement that the IRS granted a $104 million whistleblower award to convicted former UBS banker Bradley Birkenfeld generated front-page news coverage. Birkenfeld, the U.S.-bred former private banker who provided the government with detailed information regarding a program catering to U.S. taxpayers seeking to hide assets in Swiss accounts, may be correct in proclaiming himself  “the most famous whistleblower in the world.” As has been discussed in detail elsewhere, [...]

Related Lawyer: Richard F. Albert

09.13.12 | Articles, Books & Journals

Protecting Privileged Communications With a Kovel Accountant

New York Law Journal

Because tax cases frequently turn on complex accounting principles, one of the first steps a defense lawyer takes in any investigation is to retain an accountant to assist in representing the client. In United States v. Kovel, the U.S. Court of Appeals for the Second Circuit held that certain kinds of work done by such an accountant is privileged. As discussed in this article, it is important for counsel to take care to ensure that the accountant's work in fact falls within the Kovel doctrine and that the privilege is not waived.

Related Lawyer: Jeremy H. Temkin

09.05.12 | Blog Posts

Regulatory Enforcement and Criminal Investigations in a World of Limited Resources: Marginal Cases and Missed Opportunities

The Insider: White Collar Defense and Securities Enforcement

Over the past several years, it has become commonplace to hear the general public and pundits alike grouse about the lack of criminal prosecutions or regulatory enforcement proceedings arising out of the financial dislocations of 2007 and 2008. There are many reasonable responses to these complaints, and almost all of them – as representatives of the Department of Justice and SEC emphasized in recent media statements – start with the actual facts and evidence. Not surprisingly, [...]

09.04.12 | Articles, Books & Journals

Different Strokes: Interpreting Computer Fraud and Abuse Act

New York Law Journal

Since being enacted in 1984 to address the growing problem of computer hacking, the Computer Fraud and Abuse Act has been used to prosecute a wide variety of behavior, including the violation of a non-compete agreement by a former employee, the leak of classified government materials, and cyber-bullying. This article examines recent court decisions and legislative efforts that seek to clarify the CFAA and its scope.

Related Lawyer: Elkan Abramowitz

08.23.12 | Blog Posts

Insider Trading: Are "Relationships of Trust and Confidence" the Last Line of Defense?

The Insider: White Collar Defense and Securities Enforcement

On Monday, a jury convicted Doug Whitman of insider trading, extending the government’s unbeaten streak in its recent sweeping crackdown on insider trading, which has resulted in more than 75 convictions and guilty pleas. In this recent round of insider trading cases, brought by the United States Attorney’s Office for the Southern District of New York beginning in 2009, juries have rejected practically every defense proffered by defendants. In the case against hedge fund billionaire Raj Rajaratnam, the jury rejected [...]

Related Lawyer: Benjamin S. Fischer

08.21.12 | Articles, Books & Journals

Predictive Coding And Judicial Advocacy

New York Law Journal

This article discusses Da Silva Moore v. Publicis Groupe, a case in which the parties are using predictive coding to aid in ediscovery. In a recent decision in that matter, the Magistrate Judge declined to recuse himself notwithstanding his public advocacy of predictive coding. His decision explores the interesting issue of whether a judge’s strongly held and publicly expressed views on an aspect of litigation should be grounds for disqualification.

Related Lawyers: Edward M. Spiro

08.08.12 | Blog Posts

What Does The Flap Over Romney’s Tax Returns Suggest About Disclosure of His Swiss Account?

The Insider: White Collar Defense and Securities Enforcement

As the “will he or won’t he” controversy continues to swirl around demands that Mitt Romney release multiple years of his federal income tax returns, some commentators have speculated that Governor Romney’s reluctance to produce those returns relates to his Swiss bank account. Some have gone so far as to suggest that Governor Romney may have failed to disclose that account on his original returns and [...]

Related Lawyer: Jeremy H. Temkin

08.07.12 | Articles, Books & Journals

Keeping the Indictment Out of the Jury Room

New York Law Journal

A recent Second Circuit decision provides guidance against the practice of providing a copy of the indictment to the jury during deliberations. This article discusses issues presented by "speaking indictments," the court's decision in United States v. Esso, and its guidance, which is particularly apt in white collar cases.

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

August, 2012 | Articles, Books & Journals

Clients in Cross-Border Investigations: Considerations Relating to Privilege

Business Crimes Bulletin

Along with the increase in the application of white collar criminal laws of various countries to companies' international operations, multinational corporations facing international investigations have faced a confusing array of laws that govern the confidentiality of communications involving in-house and outside counsel. This article examines the myriad of laws that apply in the United States and abroad and offers strategies to maximize protection of the attorney client privilege.

Related Lawyer: Robert J. Anello

07.12.12 | Articles, Books & Journals

New Offshore Voluntary Disclosure Program: a Carrot Without a Stick?

New York Law Journal

The Internal Revenue Service recently touted the success of its 2009 Offshore Voluntary Disclosure Program and 2011 Offshore Voluntary Disclosure Initiative and provided long-awaited guidance regarding its 2012 Offshore Voluntary Disclosure Program. This article discusses both significant aspects of the new guidance and an IRS initiative to bring taxpayers living overseas into compliance with their U.S. tax obligations.

Related Lawyer: Jeremy H. Temkin

07.11.12 | Blog Posts

Some Reflections on Three Recent High Profile Trials: Clemens, Edwards and Gupta

The Insider: White Collar Defense and Securities Enforcement

Drawing conclusions as to precise reasons for the result of any particular trial is notoriously difficult and subjective, even for those who sat through the proceeding in the courtroom. But the coincidental timing of the verdicts in three high profile federal criminal trials – the acquittal of Roger Clemens, the effective acquittal of John Edwards [...]

Related Lawyer: Richard F. Albert

07.03.12 | Articles, Books & Journals

‘Brady’ Reform at the Congressional Level

New York Law Journal

Instances of government prosecutorial misconduct related to ‘Brady’ Disclosures in criminal cases have been well documented in the media. This article details recent efforts in Congress to reform the procedures surrounding Brady Disclosure.

Related Lawyer: Elkan Abramowitz

06.27.12 | Blog Posts

Why do people have a negative view of cooperators?

The Insider: White Collar Defense and Securities Enforcement

In the more than 36 years I have practiced criminal defense law, I have had many occasions to represent people who, out of self-interest, chose to cooperate with law enforcement against others in order to avoid criminal prosecution or obtain leniency. Often, the choice to cooperate is a difficult one in which the client weighs [...]

Related Lawyer:

06.19.12 | Articles, Books & Journals

Obtaining Discovery From Foreign Litigants: Competing Views on Comity

New York Law Journal

Foreign litigants in U.S. courts can find themselves caught between broad federal discovery orders and far more restrictive privacy-driven laws of the countries in which they are located. This article discusses two recent cases in which U.S. courts had to balance foreign privacy laws with U.S. discovery requests.

Related Lawyers: , Edward M. Spiro

06.14.12 | Blog Posts

Medicaid Claims Data: Is it Really Health Care Fraud?

The Insider: White Collar Defense and Securities Enforcement

Less than a week ago, in testimony before Congress, a representative of the United States Department of Health and Human Services (“HHS”) offered a strikingly negative assessment of the reliability of data that the government uses to detect fraud in the Medicaid program. As HHS Regional Inspector General Ann Maxwell stated to the House Committee [...]

Related Lawyer: Robert M. Radick

06.05.12 | Articles, Books & Journals

Denying Bail To the 'Economically Dangerous'

New York Law Journal

Recent high-profile prosecutions of serial fraudsters like Bernard Madoff have fanned the flames of a debate regarding whether economic danger can be the basis for imposing detention to protect the financial safety of the community. This article discusses two recent district court opinions addressing misbehavior by white collar defendants while released on bail and the implications for defense attorneys.

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

05.30.12 | Blog Posts

The Case for Investing in the IRS Part 2: Combating Identity Theft

The Insider: White Collar Defense and Securities Enforcement

This past weekend’s New York Times cover story describing the dramatic rise in identity thieves targeting the United States Treasury is old news to tax practitioners. In my January 25, 2012 post, I discussed the National Taxpayer Advocate’s lament regarding the IRS’s need for additional funding. While that post focused on the impact underfunding has [...]

Related Lawyer: Jeremy H. Temkin

05.16.12 | Blog Posts

In praise of Legal Aid lawyers (by a white collar criminal defense practitioner)

The Insider: White Collar Defense and Securities Enforcement

Who are some of society’s most under-appreciated members? Teachers always seem to be at the top of the list, and with good reason. We put our cherished children in their capable hands and pay them a fraction of what “professionals” like lawyers and doctors make. Teachers, however, have the pleasure of helping children learn, which [...]

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05.10.12 | Articles, Books & Journals

Will FCPA Investigations Lead to Tax Charges?

New York Law Journal

As the recent publicity surrounding the Wal-Mart investigation has demonstrated, the Foreign Corrupt Practices Act is a major law enforcement priority. This article discusses the tax implications of payments made to foreign officials. While there is a risk that such payments may give rise to criminal tax charges, counsel should not assume that all such payments are not deductible.

Related Lawyer: Jeremy H. Temkin

05.02.12 | Blog Posts

Jurors Behaving Badly

The Insider: White Collar Defense and Securities Enforcement

A closely watched white collar criminal case poses an interesting question in a challenging context: just how egregious do a juror’s lies during jury selection have to be in order to warrant a new trial? United States v. Daugerdas is the third and final of a series of criminal prosecutions brought by federal prosecutors against partners [...]

Related Lawyers: Richard F. Albert, Richard F. Albert

05.01.12 | Articles, Books & Journals

The Wire: Higher Likelihood Innocent Conversations Are Being Intercepted

New York Law Journal

According to government data, the number of wiretaps authorized by courts has more than doubled in the past decade. The number of individuals interecepted by wiretaps also has increased significantly. Yet, the percentage of authorizations resulting in incriminating evidence and convictions has steadily declined. The inevitable conclusion is that the number of innocent people being wiretapped over the past decade has increased. Despite this trend, federal courts have been inconsistent in their application of federal wiretap law intended to protect the crucial interests at stake.

Related Lawyer: Elkan Abramowitz

04.25.12 | Blog Posts

"Taking the Fifth" Between the Devil and the Deep Blue Sea

The Insider: White Collar Defense and Securities Enforcement

The rituals associated with asserting Fifth Amendment rights are, by now, familiar ones. We see them on television when crime show detectives issue Miranda warnings to the “perps” they are handcuffing and loading into squad cars. We see them when government officials or corporate executives are called before Congress to testify regarding illegal arms sales [...]

04.24.12 | Articles, Books & Journals

Can Internal Investigations be Kept from Shareholders?

Executive Counsel

Though internal investigations conducted by in-house counsel or an outside law firm are usually protected by attorney-client privelege, shareholders have been permitted to obtain privileged information when a "fiduciary exception" can be established. This article examines the tension between a company's need for confidentiality and shareholders' right of of access as exlempified in a recent case involving the computer giant HP.

Related Lawyer: Jonathan S. Sack

04.23.12 | Articles, Books & Journals

In Witness Preparation, Relationships Matter

New York Law Journal

The opportunity to meet with a non-party witness before that witness is deposed can be extremely valuable to a litigant. This article discusses recent cases warning that the substance of such meetings often will be fair game for opposing counsel.

Related Lawyers: Edward M. Spiro

04.09.12 | Articles, Books & Journals

Insider Trading and the World of Private Funds

Investment Week

Since 2008, private investment funds, which may have flown under the radar only a few short years ago, are now finding themselves in the cross-hairs of federal and international regulators. At the International Bar Association's 13th Annual International Conference on Private Investment Funds in London, the private investment community revealed their response to the political and regulator spotlight shining on both hedge funds and private equity funds.

Related Lawyer: Benjamin S. Fischer

04.04.12 | Blog Posts

Tax Day 2012: Does The Government's P.R. Campaign Increase Compliance?

The Insider: White Collar Defense and Securities Enforcement

More than any other area of the criminal law, enforcement of the tax laws is associated with a specific date: April 15. Over the next two weeks, accountants will be working feverishly to complete their clients’ tax returns, millions of Americans will be filing their returns and, if history is any indication, the Tax Division [...]

Related Lawyer: Jeremy H. Temkin

04.03.12 | Articles, Books & Journals

New Federal Sentencing Data: Comparing Chalk and Cheese

New York Law Journal

The recent public release of federal sentencing data on a judge-specific basis has generated significant media attention. This article points out the flaws in some of the analysis of this new development.

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

03.26.12 | Articles, Books & Journals

Is There Ever a Reason to Know? A Comparison of the Contributory Liability "Knowledge" Standard for Websites Hosting Infringed Trademarked Content Versus Infringed Copyrighted Content

The Pepperdine University School of Law’s Journal of Business, Entrepreneurship and the Law

03.20.12 | Blog Posts

What Does The Current Heightened Regulatory Environment Mean For Private Investment Funds?

The Insider: White Collar Defense and Securities Enforcement

Last week I attended the International Bar Association’s 13th Annual International Conference on Private Investment Funds in London, England. Heading into the conference, I was interested in gauging the private investment community’s response to the political and regulatory spotlight shining on both hedge funds and private equity funds. For the most part, the speakers and [...]

Related Lawyers: Benjamin S. Fischer, Benjamin S. Fischer

03.15.12 | Articles, Books & Journals

The Incredible Shrinking Expectation of Online Privacy

Bloomberg Technology and Law Report

With the ever-expanding use of e-mail, cloud computing, and social networks, vast amounts of private data are increasingly stored online, and thereby entrusted to the custody of third parties. Unfortunately, although our digital footprint has never been more expansive, the legal framework governing the privacy of that information remains sorely outdated, incomplete, and poorly understood. This article provides an overview of the regulatory scheme and reviews recent case law affecting the ability of government and private actors to compel disclosure of e-mail or other electronic user data stored online by entities like Google, Hotmail, Yahoo!, Twitter, Facebook, LinkedIn, or their equivalents.

Related Lawyer: Jacob W. Mermelstein

03.13.12 | Articles, Books & Journals

The Personal Benefit Test in Misappropriation Cases

Law Journal Newsletters Business Crimes Bulletin

Courts apply the personal benefit test in tipping cases brought under the "classical" theory of insider trading. Prosecutors and regulators argue that the test does not apply in misappropriation cases and some courts have agreed. But careful examination of the purpose for the test and the requirements of misappropriation liability suggests that the government's opposition is misguided.

Related Lawyers: Jodi Misher Peikin, Jodi Misher Peikin

03.08.12 | Articles, Books & Journals

Supreme Court Clarifies Collateral Consequences of Tax Convictions

New York Law Journal

This article discusses the Supreme Court's recent decision in Kawashima v. Holder, which resolved a circuit split and held that a conviction for filing a false tax return is a deportable offense. Kawashima provides important guidance to defense counsel advising their alien clients of the immgration consequences of a tax conviction.

Related Lawyer: Jeremy H. Temkin

03.07.12 | Blog Posts

Policing Dishonest Prosecutors -- The Criminal Justice System's Oxymoron

The Insider: White Collar Defense and Securities Enforcement

Last week, the New York Times ran an editorial entitled “Justice and Open Files.” The gist of the editorial was that prosecutors should provide more and earlier pre-trial discovery to defense lawyers than they currently do in order to make the criminal justice system fairer and more reliable. Discovery in criminal cases traditionally includes all [...]

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03.06.12 | Articles, Books & Journals

Passwords, Encrypted Hard Drives, Constitutional Rights and Privileges

New York Law Journal

A recent case from the Eleventh Circuit addresses the intersection of the Fifth Amendment's privilege against self-incrimination and digital evidence. While courts may seek to insure that criminals cannot use encryption techniques to hide digital evidence and defeat otherwise valid subpoenas and warrants, the case examines to what extent a citizen can be expected to cooperate in these efforts through the provision of passwords or decrypted hard drives without waiving his own constitutional protections.

Related Lawyer: Elkan Abramowitz

02.28.12 | Articles, Books & Journals

Protecting Copyright Holders And Potential Infringers

New York Law Journal

As use of the Internet grows, so too does the prevalence of cyber torts and related litigation. One of the biggest challenges facing potential plaintiffs in these cases often lies in identifying who the defendants are and where they are located. These determinations present distinct if not unique procedural wrinkles and have become something of a proving ground for new approaches to classic problems. This article discusses two recent cases that explore these interesting and important issues.

Related Lawyers: Edward M. Spiro

02.21.12 | Blog Posts

Today's Common Investigative Side Effect: Getting Fired By Your Banker

The Insider: White Collar Defense and Securities Enforcement

Banks’ heightened concerns about their own exposure for facilitating client activities that could be claimed to constitute money laundering have resulted in what has become a very common new collateral consequence for individuals and small to mid-sized businesses that are touched by white collar criminal or regulatory investigations. There is a very high likelihood that [...]

Related Lawyers: Richard F. Albert, Richard F. Albert

02.10.12 | Articles, Books & Journals

Info Gathering In The Google Age: Notes On The SCA

Law360

Despite the increasing importance of internet communication in today's world, there is no comprehensive federal legislation protecting the privacy of electronic information. The principal federal statute regulating users’ privacy is the Stored Communications Act (“SCA”), a part of the Electronic Communications Privacy Act of 1986, a statutory scheme that has been almost universally criticized as a “dense and confusing” mess. This article explores the deficiencies of the SCA and discusses way to improve it.

02.07.12 | Articles, Books & Journals

Jurors Behaving Badly: How Courts Respond

New York Law Journal

Historically, courts have been reluctant to overturn a conviction on the grounds of juror misconduct. This article reviews recent decisions and pending matters helping to define the role of the courts in addressing juror misconduct.

Related Lawyer: Robert J. Anello

01.25.12 | Blog Posts

The Case For Investing in the IRS

The Insider: White Collar Defense and Securities Enforcement

Most American taxpayers would not consider the IRS to be underfunded, let alone the IRS’s need for more resources to be the most serious problem they face. Given the growing “tax gap” (i.e., the amount of all unpaid tax liabilities), however, a persuasive case can be made that the government should invest more [...]

Related Lawyer: Jeremy H. Temkin

01.12.12 | Articles, Books & Journals

Another Catch-22 For Swiss Accountholders

New York Law Journal

This article addresses the requirement, set forth in 18 U.S.C. § 3506, that U.S. citizens challenging the government's efforts to obtain evidence abroad provide copies of their foreign filings to the Department of Justice. In light of the government's focus on getting records from Swiss banks, the requirements of section 3506, and the possible sanctions for non-compliance, are important considerations for both clients and defense counsel.

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

01.11.12 | Blog Posts

Offshore Voluntary Disclosure Part III -- Yet Another Last Chance for Taxpayers

The Insider: White Collar Defense and Securities Enforcement

The IRS just announced plans to reopen its Offshore Voluntary Disclosure Program (the “OVDP”) giving taxpayers a third “last” chance to come clean with their previously undisclosed offshore accounts. While the IRS’s two previous programs generated 33,000 disclosures and $4.4 billion in revenues, it is reasonable [...]

Related Lawyer: Jeremy H. Temkin

01.10.12 | Articles, Books & Journals

Be Careful What You Wish For: How Deferred and Non-Prosecution Agreements Can Be Used in Civil Litigation

Bloomberg Securities Law Report

Criminal investigations of companies are commonly resolved through deferred prosecution or non-prosecution agreements which allow companies to avoid indictment and trial but impose a number of burdens, including a binding admission of wrongdoing. This article reviews the current use and impact of these agreements in parallel civil litigation.

Related Lawyers: Jonathan S. Sack, Jonathan S. Sack

01.06.12 | Articles, Books & Journals

Grand Jury Secrecy: Discretionary Limits

New York Law Journal

On July 29, 2011, a federal district court judge ruled that transcripts of Richard M. Nixon's grand jury testimony related to the Watergate scandal--given with the expectation that it would remain secret--should be released to the public. Since the decision the Justice Department has proposed an amendment to Rule 6(e) of the Federal Rules of Criminal Procedure in an attempt to confine a court's discretion to release secret grand jury materials. This article reviews the law of grand jury secrecy and instances in which a federal court may order the release of grand jury records.

Related Lawyer: Elkan Abramowitz

12.28.11 | Blog Posts

Has the DOJ Been Too Soft on White Collar Crime?

The Insider: White Collar Defense and Securities Enforcement

60 Minutes recently televised an interview with President Obama in which the President was asked to comment on the lack of criminal prosecutions relating to the financial crisis. In an earlier 60 Minutes piece, Lanny Breuer, the Assistant Attorney General for the Criminal Division of the Department of [...]

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12.20.11 | Articles, Books & Journals

Southern District Launches Pilot Project for Complex Civil Cases

New York Law Journal

The U.S. District Court for the Southern District of New York launched a pilot project aimed at improving pretrial case management of complex civil cases. This article highlights some of the key aspects of the project, which was designed to address concerns pertaining to costs and delays voiced by clients and members of the bar, and impose some proportionality on the time and resources spent by the courts and parties alike.

Related Lawyers: , Edward M. Spiro, Edward M. Spiro

12.13.11 | Blog Posts

Thoughts on the SEC’s Public Response to Judge Rakoff

The Insider: White Collar Defense and Securities Enforcement

The November 28, 2011 decision of Judge Jed S. Rakoff to reject the proposed settlement of the SEC’s enforcement action against Citigroup Global Markets, Inc. for alleged misdeeds in connection with a particular collateralized debt obligation (“CDO”) has been the subject of much attention. The [...]

Related Lawyer: Richard F. Albert

12.06.11 | Articles, Books & Journals

Media: Defendant’s Friend or Foe?

New York Law Journal

Although the presumption of innocence is one of the bedrocks of our criminal justice system, quite often suspects are tried and condemned in the court of public opinion before even being charged in a court of law. This article discusses how to deal with the media, both tactically and ethically when a client is in the public eye, in order to rebalance a sometimes tilted playing field.

Related Lawyers: Robert J. Anello, Robert J. Anello

11.30.11 | Blog Posts

The Ghosts of Prosecutions Past: Cooperating Defendants and the Ravages of Time

The Insider: White Collar Defense and Securities Enforcement

As practitioners who have represented cooperating witnesses in complex, white-collar criminal cases can attest, the lifespan of such cases typically is measured in years. With occasional exceptions, cooperating witnesses often plead guilty at the outset of a case, but their sentencing is put off until after the trials [...]

11.16.11 | Blog Posts

The SEC Should Focus On Fraud, Not Negligence

The Insider: White Collar Defense and Securities Enforcement

In recent cases brought under sections 17(a)(2) and 17(a)(3) of the Securities Act, the Securities and Exchange Commission has alleged that there was fraudulent conduct but does not allege that the defendant acted with scienter. The Supreme Court has held that scienter -- the intent to defraud -- [...]

Related Lawyer: Lawrence Iason

11.10.11 | Articles, Books & Journals

Fifth Amendment and Government’s War on Offshore Accounts

New York Law Journal

Under Treasury Department regulations, taxpayers are required to keep records relating to accounts they maintained at foreign financial institutions. Faced with a subpoena for such records, a taxpayer who did not disclose a foreign account on his income tax returns and on FBARs faces a difficult dilemma: producing the records will demonstrate that his previously filed returns were false, while denying that he has the records could subject him to prosecution for failure to keep required records. This article discusses two recent decisions--one out of the Ninth Circuit and one from the United States District Court for the Southern District of Texas--addressing taxpayers' assertion of their rights under the Fifth Amendment in response to such subpoenas.

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

11.09.11 | Blog Posts

Substituting “Moral Equivalence” for Actual Knowledge in Criminal Tax Cases

The Insider: White Collar Defense and Securities Enforcement

The “conscious avoidance” doctrine has long confounded criminal defense lawyers and their clients. In most criminal cases, the government need only prove the defendant knowingly engaged in the conduct at issue, not that he knew the conduct violated a specific law. This burden of proving criminal intent is often relaxed through [...]

Related Lawyer: Jeremy H. Temkin

11.08.11 | Articles, Books & Journals

Computer Fraud And Abuse Act: Finding the Line In the Sand

Law Journal Newsletters

Related Lawyer: Elkan Abramowitz

11.01.11 | Articles, Books & Journals

Era of Post-‘Booker’ Sentencing: Whither the Guidelines

New York Law Journal

Related Lawyer: Elkan Abramowitz

10.21.11 | Articles, Books & Journals

How to Conduct Internal Investigations

Executive Counsel

Managing internal investigations is one of the most important responsibilities of in-house counsel. This article offers suggestions for conducting thorough, and cost-effective, investigations.

Related Lawyers: Jonathan S. Sack, Jonathan S. Sack

10.21.11 | Articles, Books & Journals

Insights from US anti-bribery enforcement

The Lawyers Weekly

Related Lawyer: Richard F. Albert

10.19.11 | Blog Posts

Trying to Define ‘Fraud” Under Federal Criminal Law

The Insider: White Collar Defense and Securities Enforcement

In the past few years, Congress, the press and commentators have debated the wisdom of passing more federal criminal laws to deal with financial crime. However, lost in this debate is the fact that the current federal criminal laws dealing with white collar crime may already provide prosecutors with too [...]

Related Lawyer:

10.18.11 | Articles, Books & Journals

Work E-Mail: Clients Beware

New York Law Journal

Related Lawyers: , Edward M. Spiro

10.11.11 | Articles, Books & Journals

Energy Markets: Enforcement in an Age of Rising Prices

New York Law Journal

This article concerns the increased focus by federal and state regulators on the energy markets, as well as potential competition among regulators in this area.

10.05.11 | Blog Posts

Fools Rush In: The Best Potential Whistleblowers Have the Most to Fear

The Insider: White Collar Defense and Securities Enforcement

The “bounty” program included in the securities whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act has garnered a great deal of attention since the law’s July 2010 passage. These statutory provisions, which entitle whistleblowers to 10% to 30% of the sanctions exceeding $1 million collected by [...]

Related Lawyer: Richard F. Albert

10.04.11 | Articles, Books & Journals

International Prison Transfer Program

New York Law Journal

Extradition laws are of increasing relevance in white collar practice due to the cross-border nature of most business transactions. A related issue is the transfer of foreign citizens convicted in the United States to their home countries to serve their sentence and the real governmental benefits that attend such transfers. This article details the administration of such transfers in and out of the United States by the Justice Department's International Prison Transfer Unit.

Related Lawyer: Robert J. Anello

09.21.11 | Blog Posts

Janus Capital Group Inc. v. First Derivative Traders and the Law of Unintended Consequences

The Insider: White Collar Defense and Securities Enforcement

They share common features and rely on some of the same statutes, but private securities claims and SEC enforcement actions often get a radically different reception in the courts. For some time now, the Supreme Court and lower appellate courts have been an unforgiving place for private securities litigants. By [...]

09.08.11 | Articles, Books & Journals

Dual Prosecution for Tax Offenses: Closing the 'Helmsley Loophole'

New York Law Journal

New York State recently amended its double jeopardy statute, creating the possibility that prosecutors will pursue state tax charges against defendants previously convicted of federal tax offenses. This article discusses the effect of this new statute and the options available to defense counsel once it takes effect.

Related Lawyer: Jeremy H. Temkin

09.08.11 | Blog Posts

The SEC -- A Troubled Agency

The Insider: White Collar Defense and Securities Enforcement

The SEC has been faced with an unusually large number of problems recently. The SEC’s notorious failure to detect Bernie Madoff’s Ponzi scheme is even more distressing in view of the repeated warnings the SEC received about Madoff. The Commission’s Enforcement Division also failed to bring charges again Mark Stanford [...]

Related Lawyer: Lawrence Iason

09.06.11 | Articles, Books & Journals

‘Brady’ Obligations: Codification and Clarification

New York Law Journal

Related Lawyer: Elkan Abramowitz

08.16.11 | Articles, Books & Journals

Consulting With Your Client During Deposition

New York Law Journal

This article concerns the markedly different rules in different jurisdictions governing consultations between attorneys and their clients during depositions.

Related Lawyers: , Edward M. Spiro

08.02.11 | Articles, Books & Journals

Increased Extradition For Business Crime

New York Law Journal

Related Lawyer: Robert J. Anello

08.02.11 | Articles, Books & Journals

Asserting The 5th During SEC Investigations

Law360.com

Related Lawyer:

07.14.11 | Articles, Books & Journals

‘Conscious Avoidance’ and Government’s Burden of Proving Willfulness

New York Law Journal

Related Lawyer: Jeremy H. Temkin

07.11.11 | Articles, Books & Journals

How Strong a Nexus Required for Witness Tampering?

New York Law Journal

Related Lawyers: Curtis B. Leitner, Jonathan S. Sack

06.24.11 | Articles, Books & Journals

How ‘AT&T Mobility’ Changes the Course Of Securities Class Actions, Arbitrations

New York Law Journal

Related Lawyers: Catherine M. Foti

06.21.11 | Articles, Books & Journals

Clock Ticks On: No ‘American Pipe’ Tolling of Statutes of Repose

New York Law Journal

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06.07.11 | Articles, Books & Journals

Crossroads Between Grand Jury Subpoenas and Civil Protective Orders

New York Law Journal

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05.12.11 | Articles, Books & Journals

FATCA: New Front in the IRS’s Battle Against Offshore Accounts

New York Law Journal

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05.03.11 | Articles, Books & Journals

‘Brady’ Obligations In the Twenty-First Century

New York Law Journal

Related Lawyer: Elkan Abramowitz

04.19.11 | Articles, Books & Journals

Broad Judgment Enforcement In New York Federal Courts

New York Law Journal

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04.05.11 | Articles, Books & Journals

Statute of Limitations In SEC Enforcement Actions

New York Law Journal

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03.01.11 | Articles, Books & Journals

Search and Seizure of Digital Evidence: Evolving Standards

New York Law Journal

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02.17.11 | Articles, Books & Journals

Voluntary Disclosure of Offshore Accounts: Yet Another ‘Last’ Chance

New York Law Journal

This article discusses recently announced plans by the IRS to reopen its Offshore Voluntary Disclosure Program (the "OVDP") giving taxpayers a third "last" chance to come clean with their previously undisclosed offshore accounts.

Related Lawyer: Jeremy H. Temkin

02.15.11 | Articles, Books & Journals

Gatekeepers and Critics: Judicial Scrutiny of Arbitration

New York Law Journal

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02.14.11 | Articles, Books & Journals

Revival of the Responsible Corporate Officer Doctrine

New York Law Journal

Related Lawyers: Robert M. Radick, Robert M. Radick, Jonathan S. Sack, Jonathan S. Sack

02.01.11 | Articles, Books & Journals

Overview of Federal Wiretap Law In White-Collar Cases

New York Law Journal

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01.13.11 | Articles, Books & Journals

IRS Whistleblower Program: Road Map for Dodd-Frank?

New York Law Journal

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01.04.11 | Articles, Books & Journals

Overcriminalization And the Fallout From ‘Skilling’

New York Law Journal

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01.03.11 | Articles, Books & Journals

What Goes Up Can Come Down

Business Crimes Bulletin

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2011 | Articles, Books & Journals

Civil Practice in the Southern District of New York, 2d. Ed.

West Thomson Reuters 2011

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12.07.10 | Articles, Books & Journals

In International Investigations, All Lawyers Are Not Created Equal

New York Law Journal

Related Lawyers: Robert J. Anello, Robert J. Anello

12.01.10 | Articles, Books & Journals

Amendment of Expert Discovery Rules

New York Law Journal

Related Lawyers: , Edward M. Spiro, Edward M. Spiro

11.12.10 | Articles, Books & Journals

Schedule UTP: Greater Transparency Or Undermining Privilege?

New York Law Journal

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

11.08.10 | Articles, Books & Journals

Bucking Conventional Wisdom: Disclosing Defense Arguments to the Prosecution Before Trial

Prosecution Notes, New York University School of Law, Center on the Administration of Criminal Law

Related Lawyers: Elkan Abramowitz, Elkan Abramowitz

11.02.10 | Articles, Books & Journals

Prosecutions Arising Out of Troubled Asset Relief Program

New York Law Journal

Related Lawyer: Elkan Abramowitz

10.14.10 | Articles, Books & Journals

Whistleblower Laws: Protections for Employees, Risks to Corporations

International Comparative Legal Guide

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10.12.10 | Articles, Books & Journals

Internal Investigations: Start Off on the Right Foot

New York Law Journal

Related Lawyer: Jonathan S. Sack

10.07.10 | Articles, Books & Journals

SLUSA’s ‘In Connection With’ Rule: How Close Is Close Enough?

New York Law Journal

Related Lawyers: , Edward M. Spiro

10.05.10 | Articles, Books & Journals

Alternatives to Honest Services Fraud

New York Law Journal

Related Lawyer: Robert J. Anello

09.15.10 | Articles, Books & Journals

Civil Liability of Rating Agencies: Past Success, Future Danger?

New York Law Journal

Related Lawyer: Jonathan S. Sack

09.10.10 | Articles, Books & Journals

Too Big to Fail: Is Federal Criminal System in Need of Overhaul?

New York Law Journal

Related Lawyer: Elkan Abramowitz

09.09.10 | Articles, Books & Journals

Enhancing Sentences in Tax Cases: Whose Trust Is Abused?

New York Law Journal

Related Lawyer: Jeremy H. Temkin

08.05.10 | Articles, Books & Journals

U.S. Discovery in Foreign Proceedings: Section 1782 and Chevron in Ecuador

New York Law Journal

Related Lawyers: , Edward M. Spiro

08.03.10 | Articles, Books & Journals

The Evolving Mystery Of Illegal Insider Trading

New York Law Journal

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07.09.10 | Articles, Books & Journals

Honest Services Fraud: ‘Morris,’ ‘Skilling’ and the Martin Act

New York Law Journal

Related Lawyer: Elkan Abramowitz

07.08.10 | Articles, Books & Journals

Greater Clarity for the Economic Substance Doctrine

New York Law Journal

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06.03.10 | Articles, Books & Journals

Flexibility Within Limits: Federal Rules Governing Service of Process

New York Law Journal

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06.01.10 | Articles, Books & Journals

Terms and Conditions Of Supervised Release

New York Law Journal

Related Lawyer: Robert J. Anello

05.04.10 | Articles, Books & Journals

The Ever-Expanding Martin Act: Has It Reached Its Limit?

New York Law Journal

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04.06.10 | Articles, Books & Journals

Federal RICO Statute: Extraterritorial Reach and Other Recent Issues

New York Law Journal

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04.01.10 | Articles, Books & Journals

Some Nuts and Bolts Of Attorney’s Fees Applications

New York Law Journal

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03.31.10 | Articles, Books & Journals

Stays in Parallel Proceedings

Business Crimes Bulletin

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03.11.10 | Articles, Books & Journals

Give Me a Break: Deducting Fees, Financial Penalties in Criminal Cases

New York Law Journal

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02.04.10 | Articles, Books & Journals

Depositions of Organizations Under Rule 30(b)(6)

New York Law Journal

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02.02.10 | Articles, Books & Journals

Renewing Efforts to Enforce ‘Brady v. Maryland’

New York Law journal

Related Lawyers: Robert J. Anello, Robert J. Anello

01.14.10 | Articles, Books & Journals

Offshore Banking: the End Of the World as We Know It?

New York Law Journal

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

01.05.10 | Articles, Books & Journals

Further Developments On Privacy Rights in an Electronic Era

New York Law Journal

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12.03.09 | Articles, Books & Journals

Can Disqualification Be Avoided?

New York Law Journal

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12.01.09 | Articles, Books & Journals

U.S. Supreme Court Term: Cases Affecting White Collar Practitioners

New York Law Journal

Related Lawyers: Robert J. Anello, Robert J. Anello

11.19.09 | Articles, Books & Journals

Uncharged Act Evidence In Criminal Tax Cases

New York Law Journal

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

11.03.09 | Articles, Books & Journals

Personal Attorney-Client Privilege In Internal Investigations

New York Law Journal

Related Lawyers: Elkan Abramowitz, Elkan Abramowitz

10.21.09 | Articles, Books & Journals

Continuing Medical Education: Criminal Risks in Sponsorship

New York Law Journal

Related Lawyer: Robert M. Radick

10.06.09 | Articles, Books & Journals

Implications of Asserting The Fifth Amendment

New York Law Journal

Related Lawyer: Robert J. Anello

10.01.09 | Articles, Books & Journals

Preliminary Injunctions In Non-Compete Cases

New York Law Journal

Related Lawyers: Edward M. Spiro

09.17.09 | Articles, Books & Journals

The Next Chapter in ‘Textron’ Over Protection for Work Papers

Related Lawyer: Jeremy H. Temkin

09.01.09 | Articles, Books & Journals

Loss Calculation in Sentencing For Securities Fraud Cases

New York Law Journal

Related Lawyer: Elkan Abramowitz

08.06.09 | Articles, Books & Journals

Limited Confidentiality Under Protective Orders

New York Law Journal

Related Lawyers: Edward M. Spiro

08.04.09 | Articles, Books & Journals

Supreme Court Review: The 2008-2009 Term

New York Law Journal

Related Lawyer: Robert J. Anello

07.16.09 | Articles, Books & Journals

Privilege Against Self Incrimination And Income Tax Filings

New York Law Journal

Related Lawyer: Jeremy H. Temkin

07.07.09 | Articles, Books & Journals

Grand Jury Witness Access To Testimony Transcripts

New York law Journal

Related Lawyer: Elkan Abramowitz

06.04.09 | Articles, Books & Journals

The Increasingly Important Venue Transfer Motion

New York Law Journal

Related Lawyers: Edward M. Spiro

06.02.09 | Articles, Books & Journals

Assessing Developments On Criminalization of Legal Advice

New York Law Journal

Related Lawyer: Robert J. Anello

05.31.09 | Articles, Books & Journals

How to Use and Not Lose Experts in Criminal Cases

Business Crimes Bulletin

Related Lawyers: Jodi Misher Peikin, Jodi Misher Peikin

05.14.09 | Articles, Books & Journals

One Last Chance For Offshore Account Holders

New York Law Journal

Related Lawyer: Jeremy H. Temkin

05.05.09 | Articles, Books & Journals

‘Adnarim’ Warnings in Corporate Internal Investigations

New York Law Journal

Related Lawyer: Elkan Abramowitz

04.07.09 | Articles, Books & Journals

The Need for ‘Second Chances’ After Suffering a Federal Conviction

New York Law Journal

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04.02.09 | Articles, Books & Journals

Invoking the Selection And Compilation Doctrine

New York Law Journal

Related Lawyers: Edward M. Spiro

03.12.09 | Articles, Books & Journals

The IRS Still Wants Your Company’s Workpapers

New York Law Journal

Related Lawyer: Jeremy H. Temkin

03.03.09 | Articles, Books & Journals

Targeting Law Enforcement To Improve the Economy

New York Law Journal

Related Lawyers: Elkan Abramowitz, Elkan Abramowitz

02.05.09 | Articles, Books & Journals

'The New Black': Meditations on Metadata

New York Law Journal

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02.03.09 | Articles, Books & Journals

‘Batson’ Update: Second Circuit Cases Highlight Issues in Making Challenges

New York Law Journal

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01.15.09 | Articles, Books & Journals

New IRS Focus Is on the Conduct Of Taxpayers’ Representatives

New York Law Journal

Related Lawyer: Jeremy H. Temkin

01.06.09 | Articles, Books & Journals

Pretrial Publicity in Criminal Cases: Media Sound Bites, Justice?

New York Law Journal

Related Lawyer: Elkan Abramowitz

2009 | Articles, Books & Journals

Knight's Saga: A Court Rejects the SEC's Theory of “Best Execution”

The Review of Securities & Commodities Regulation 2009

Securities traders are obligated to provide “best execution” to their customers. Knight Securities, a public market making firm, settled charges with the SEC alleging a scheme to overcharge its customers on large securities trades. In SEC v. Pasternak and Leighton, the SEC charged two former executives of Knight with overseeing a scheme to overcharge customers and make excessive profits on numerous institutional orders to buy and sell large blocks of stock, thereby failing to provide best execution. In a recent opinion, the district court rejected the SEC’s charges, holding that the SEC had failed to formulate a viable legal theory, much less prove a violation of the securities laws. The ruling not only clarifies issues surrounding “best execution”; it also underscores the difficulty that companies have, in the present environment, of challenging government claims of wrongdoing.

Related Lawyer: Jonathan S. Sack

2009 | Articles, Books & Journals

Regulatory Investigations and the Credit Crisis: The Search for Villains

46 Am. Crim. L. Rev. 225

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12.08.08 | Articles, Books & Journals

When Is Once Enough? Collateral Estoppel in Criminal Cases

New York Law Journal

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12.04.08 | Articles, Books & Journals

N.Y. Attorney-General Probes, Proper Role of Federal Courts

New York Law Journal

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11.20.08 | Articles, Books & Journals

The Promise of ‘Booker’: Probationary Tax Sentences

New York Law Journal

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11.04.08 | Articles, Books & Journals

Expert Testimony in Criminal Cases

New York Law Journal

Related Lawyers: Elkan Abramowitz, Elkan Abramowitz

10.07.08 | Articles, Books & Journals

Calculating Loss Under the Guidelines

New York Law Journal

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10.02.08 | Articles, Books & Journals

Heightened Requirements for Class Certification

New York Law Journal

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09.29.08 | Articles, Books & Journals

Seeking Restitution for the Costs of Internal Investigations

New York Law Journal

Related Lawyer: Brian A. Jacobs

09.18.08 | Articles, Books & Journals

Criminal Fraud: Second Circuit Aligns With Other Courts

New York Law Journal

Related Lawyer: Jeremy H. Temkin

09.06.08 | Articles, Books & Journals

Preserving the Corporate Attorney-Client Privilege: Here and Abroad

27 Penn State International Law Review, vol. 27, 291 2008

Related Lawyers: Robert J. Anello, Robert J. Anello

09.02.08 | Articles, Books & Journals

Justice and Corporate Prosecutions: The Continuing Saga

New York Law Journal

Related Lawyer: Elkan Abramowitz

08.07.08 | Articles, Books & Journals

Discovery in Aid of Foreign Proceedings

New York Law Journal

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08.05.08 | Articles, Books & Journals

Attorney-Client Privilege in International Investigations

New York Law Journal

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07.17.08 | Articles, Books & Journals

The Internal Revenue Service’s Offshore Tax Initiative

New York Law Journal

Related Lawyer: Jeremy H. Temkin

07.01.08 | Articles, Books & Journals

The U.S. Supreme Court: Money-Laundering Decisions

New York Law Journal

Related Lawyer: Elkan Abramowitz

06.30.08 | Articles, Books & Journals

Judicial Roulette: Recusal Motions in Criminal Cases

Business Crimes Bulletin

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06.05.08 | Articles, Books & Journals

Procedural Aspects of Challenging Punitive Damages

New York Law Journal

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06.03.08 | Articles, Books & Journals

Dangers of Proffering Information to the Government

New York Law Journal

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05.15.08 | Articles, Books & Journals

The Wesley Snipes Trial

New York Law Journal

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05.06.08 | Articles, Books & Journals

Expansion of Border Searches to Laptops, Electronic Items

New York Law Journal

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04.03.08 | Articles, Books & Journals

Constitutional Limitations on Punitive Damages Awards

New York Law Journal

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04.01.08 | Articles, Books & Journals

Show Me the Money

New York Law Journal

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03.20.08 | Articles, Books & Journals

When Prosecution Is Outsourced to the Private Bar

New York Law Journal

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03.19.08 | Articles, Books & Journals

‘Boulware’: High Bar Set for Criminal Tax Prosecutions

New York Law Journal

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

03.04.08 | Articles, Books & Journals

The Rule of Lenity in Sentencing

New York Law Journal

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02.07.08 | Articles, Books & Journals

Uses, Limitations, Pitfalls of Routine Discovery Devices

New York Law Journal

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02.05.08 | Articles, Books & Journals

Impact of U.S. Prosecutions on Foreign Affairs

New York Law Journal

Related Lawyers: Robert J. Anello, Robert J. Anello

01.17.08 | Articles, Books & Journals

When Can Feds Charge Tax, Nontax Crimes Together?

New York Law Journal

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01.10.08 | Articles, Books & Journals

Thoughts on Federal Plea Bargaining, Trials, Acquittals

New York Law Journal

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01.10.08 | Articles, Books & Journals

Defamation, the Internet, and Personal Jurisdiction

New York Law Journal

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2008 | Articles, Books & Journals

Rethinking the Narrative on Judicial Deference in Student Speech Cases

83 N.Y.U. L. Rev. 1282

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2008 | Articles, Books & Journals

Preserving the Corporate Attorney-Client Privilege: Here and Abroad

27 Penn State International Law Review, Vol. 27, 291 2008

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2008 | Articles, Books & Journals

Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts

29 Berkeley J. Empl. & Lab. L. 269

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12.06.07 | Articles, Books & Journals

The Quest for Expansion of Insider Trading Liability

New York Law Journal

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11.15.07 | Articles, Books & Journals

When the IRS Violates Its Own Rules on Criminal Probes

New York Law Journal

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11.06.07 | Articles, Books & Journals

Federal Money-Laundering Statutes: Course Correction?

New York Law Journal

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11.05.07 | Articles, Books & Journals

Rating Agencies: Civil Liability Past and Future

New York Law Journal

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10.31.07 | Articles, Books & Journals

Defendants’ Pretrial Access To Documents In White Collar Prosecutions

Business Crimes Bulletin

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10.05.07 | Articles, Books & Journals

‘Stoneridge’: Answered and Unanswered Questions

New York Law Journal

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10.04.07 | Articles, Books & Journals

Attorneys Under Fire

New York Law Journal

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10.02.07 | Articles, Books & Journals

Options Backdating and the Brocade Trial

New York Law Journal

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09.20.07 | Articles, Books & Journals

The ‘New and Improved’ Whistleblower Statute

New York Law Journal

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09.04.07 | Articles, Books & Journals

Privilege Waivers: The Pendulum Swings

New York Law Journal

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08.07.07 | Articles, Books & Journals

The Cost of Defense

New York Law Journal

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08.02.07 | Articles, Books & Journals

The Supreme Court’s Pleading Trilogy

New York Law Journal

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07.19.07 | Articles, Books & Journals

Sanctions for Tax Professionals

New York Law Journal

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07.17.07 | Articles, Books & Journals

The Internal Revenue Service’s Offshore Tax Initiative

New York Law Journal

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07.03.07 | Articles, Books & Journals

Beyond Harmless Error: ‘Trivialty’ of Intrusions

New York Law Journal

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06.07.07 | Articles, Books & Journals

Governmental Privileges in the Post-9/11 Era

New York Law Journal

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06.05.07 | Articles, Books & Journals

Ancillary Jurisdiction in Criminal Cases

New York Law Journal

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05.16.07 | Articles, Books & Journals

Tax Accrual Workpapers May Be Discoverable

New York Law Journal

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05.10.07 | Articles, Books & Journals

Scandal: Subprime Meltdown, Securitization Accounting

New York Law Journal

05.01.07 | Articles, Books & Journals

Conscious Avoidance: A Substitute for Actual Knowledge?

New York Law Journal

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04.05.07 | Articles, Books & Journals

Class Action Litigation Reform Update

New York Law Journal

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04.03.07 | Articles, Books & Journals

Outer Limits of Federal Mail, Wire Fraud Prosecutions

New York Law Journal

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03.15.07 | Articles, Books & Journals

Tax Prosecutions: More Jail Time and Penalties

New York Law Journal

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03.06.07 | Articles, Books & Journals

Reasonableness Review After ‘Booker’

New York Law Journal

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02.06.07 | Articles, Books & Journals

Status of Out-of-Court Statements After ‘Crawford’

New York Law Journal

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02.01.07 | Articles, Books & Journals

Anti-Suit Injuctions in Aid of Arbitration

New York Law Journal

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01.18.07 | Articles, Books & Journals

Accountant’s Obligation to Maintain Client Confidences

New York Law Journal

Related Lawyers: Jeremy H. Temkin, Jeremy H. Temkin

01.17.07 | Articles, Books & Journals

Disqualification of Counsel After ‘Gonzalez-Lopez’

New York Law Journal

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01.02.07 | Articles, Books & Journals

The Defense of Corporate America: The Year in Review

New York Law Journal

Related Lawyers: Elkan Abramowitz, Elkan Abramowitz

2007 | Articles, Books & Journals

Federal Corporate Sentencing: Compliance and Mitigation, Rev. Ed.

Law Journal Seminars Press 2007

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01.01.07 | Articles, Books & Journals

Penance But No Absolution - The Paradox of Corporate Criminal Liability

Business Crimes Bulletin

Related Lawyers: Jodi Misher Peikin, Jodi Misher Peikin

12.14.06 | Articles, Books & Journals

Cost-Shifting in Discovery

New York Law Journal

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12.05.06 | Articles, Books & Journals

Preserving Your Job While Asserting the Fifth Amendment

New York Law Journal

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11.16.06 | Articles, Books & Journals

Sanctions for Lawyers Who Commit Tax Crimes

New York Law Journal

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11.07.06 | Articles, Books & Journals

The Fourth Amendment in the Age of Computers

New York Law Journal

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10.05.06 | Articles, Books & Journals

2006 Amendments to the Federal Rules of Civil Procedure

New York Law Journal

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10.03.06 | Articles, Books & Journals

Criminalization of Political Processes

New York Law Journal

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09.21.06 | Articles, Books & Journals

Indictment of Tax Crimes Under Fraud Statutes

New York Law Journal

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09.05.06 | Articles, Books & Journals

Assault on Thompson Memo: KPMG and Beyond

New York Law Journal

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08.03.06 | Articles, Books & Journals

Standing to Bring Derivative Actions

New York Law Journal

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08.01.06 | Articles, Books & Journals

Regulation and Prosecution of Hedge Funds

New York Law Journal

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07.19.06 | Articles, Books & Journals

Further Restrictions on the Role of Auditors of Public Companies

New York Law Journal

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07.06.06 | Articles, Books & Journals

Special Responsibilities: Proposed Changes to Prosecutorial Ethics

New York Law Journal

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06.06.06 | Articles, Books & Journals

Fiduciary Duty Not Always Easy to Determine

New York Law Journal

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06.01.06 | Articles, Books & Journals

What’s become of ‘Rooker-Feldman’?

New York Law Journal

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05.18.06 | Articles, Books & Journals

Sentencing in Criminal Tax Cases Post-‘Booker’

New York Law Journal

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05.02.06 | Articles, Books & Journals

Handling Witnesses: The Boundaries of Proper Witness Preparation

New York Law Journal

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04.06.06 | Articles, Books & Journals

Removal Jurisdiction—A Continuing Conundrum

New York Law Journal

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04.05.06 | Articles, Books & Journals

Potential Defense Counsel Responses to Consumer Fraud Enforcement

New York Law Journal

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04.04.06 | Articles, Books & Journals

‘Graymail’ or the Right Defense?

New York Law Journal

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03.16.06 | Articles, Books & Journals

The United States’ Role in Foreign Tax Evasion Cases

New York Law Journal

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03.07.06 | Articles, Books & Journals

Unindicted Co-Conspirators, Due Process, and Government Targets

New York Law Journal

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02.07.06 | Articles, Books & Journals

Use of Unusual Trial Management Procedures by District Courts

New York Law Journal

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02.02.06 | Articles, Books & Journals

Directors and Waiver of the Attorney-Client Privilege

New York Law Journal

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01.26.06 | Articles, Books & Journals

How the IRS Recoups Unpaid Taxes in Criminal Tax Cases

New York Law Journal

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2006 | Articles, Books & Journals

Hepatitis C in Prisons: Evolving Toward Decency Through Adequate Medical Care and Public Health Reform

54 UCLA L. Rev. 465

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12.08.05 | Articles, Books & Journals

Rule 12(e)—New Life for the Motion for a More-Definite Statement

New York Law Journal

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12.06.05 | Articles, Books & Journals

Criminal Contempt Prosecution by Civil Litigants—A Step Too Far?

New York Law Journal

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11.17.05 | Articles, Books & Journals

IRS Offers Taxpayers a “Break” in Its Battle Against Tax Shelters

New York Law Journal

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11.01.05 | Articles, Books & Journals

Waiver of Corporate Attorney-Client and Work Product Protection

New York Law Journal

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10.05.05 | Articles, Books & Journals

To Stay or Not to Stay

New York Law Journal

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10.04.05 | Articles, Books & Journals

Beyond ‘Upjohn’: Necessary Warnings in Internal Investigations

New York Law Journal

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09.14.05 | Articles, Books & Journals

Revenge of the Tax Protesters

New York Law Journal

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09.06.05 | Articles, Books & Journals

Supreme Court Review: The 2004–2005 Term

New York Law Journal

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08.11.05 | Articles, Books & Journals

Personal Jurisdiction and the Internet

New York Law Journal

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08.09.05 | Articles, Books & Journals

A Bad Fit—Criminal Forfeiture of Substitute Assets, the Lis Pendens

New York Law Journal

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08.03.05 | Articles, Books & Journals

Causation in Civil RICO: Mrs. Palsgraf, ‘Rough Justice’

New York Law Journal

08.02.05 | Articles, Books & Journals

Post-‘Booker’ Sentencing: Not What We Might Have Expected

New York Law Journal

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07.21.05 | Articles, Books & Journals

The Supreme Court and Taxes: The 2004-2005 Term

New York Law Journal

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07.04.05 | Articles, Books & Journals

The ‘Andersen’ Decision: Its Effects on 18 USC §1519 and Attorneys

New York Law Journal

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06.07.05 | Articles, Books & Journals

Criminal-Case Compensation of Fees: Not a Defendant’s Right?

New York Law Journal

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06.02.05 | Articles, Books & Journals

‘Daubert’ Update: A Word of Caution to Plaintiffs

New York Law Journal

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05.19.05 | Articles, Books & Journals

IRS: Quick, Simultaneous Enforcement Over Long-Time Practices

New York Law Journal

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04.29.05 | Articles, Books & Journals

Defense Witness Immunity—Toward a More-Level Playing Field

New York Law Journal

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04.07.05 | Articles, Books & Journals

Personal Jurisdiction Over Foreign Co-Conspirators

New York Law Journal

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04.05.05 | Articles, Books & Journals

Prosecutorial Limitations in Cross-Border Investigations

New York Law Journal

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03.17.05 | Articles, Books & Journals

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New York Law Journal

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03.08.05 | Articles, Books & Journals

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New York Law Journal

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02.03.05 | Articles, Books & Journals

Privacy and Protective Orders in High-Profile Litigation

New York Law Journal

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02.01.05 | Articles, Books & Journals

State Enforcement: An Interview with Eliot Spitzer

Business Crimes Bulletin

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02.01.05 | Articles, Books & Journals

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New York Law Journal

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01.20.05 | Articles, Books & Journals

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New York Law Journal

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01.04.05 | Articles, Books & Journals

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New York Law Journal

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01.03.05 | Articles, Books & Journals

Conflicts Analysis in a New Age

New York Law Journal

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12.20.04 | Articles, Books & Journals

Sarbanes-Oxley’s Wake Up Call to Attorneys

Penn State International Law Review

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12.07.04 | Articles, Books & Journals

Corporate Compliance Programs: No Longer Voluntary

New York Law Journal

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12.02.04 | Articles, Books & Journals

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New York Law Journal

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11.18.04 | Articles, Books & Journals

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New York Law Journal

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11.02.04 | Articles, Books & Journals

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New York Law Journal

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10.14.04 | Articles, Books & Journals

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New York Law Journal

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10.07.04 | Articles, Books & Journals

Available Discovery From Non-Parties in Arbitration Proceedings

New York Law Journal

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Fall 2004 | Articles, Books & Journals

They Were Shocked, Shocked: The ‘Discovery’ of Analyst Conflicts on Wall Street

70 Brooklyn L. Rev. 98, Fall 2004

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09.16.04 | Articles, Books & Journals

Limitations on State Tax Prosecutions

New York Law Journal

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09.07.04 | Articles, Books & Journals

High Court Roundup

New York Law Journal

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08.05.04 | Articles, Books & Journals

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New York Law Journal

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08.03.04 | Articles, Books & Journals

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New York Law Journal

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07.15.04 | Articles, Books & Journals

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New York Law Journal

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07.06.04 | Articles, Books & Journals

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New York Law Journal

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07.01.04 | Articles, Books & Journals

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Report of the Federal Bar Council, Committee on Second Circuit Courts

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July 2004 | Articles, Books & Journals

Department of Justice Charging, Plea-Bargaining and Sentencing Policies Under Attorneys General Thornburgh, Reno and Ashcroft

Report of the Federal Bar Council Committee on Second Circuit Courts, July 2004

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06.03.04 | Articles, Books & Journals

Recent Developments in Removal Jurisdiction

New York Law Journal

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06.01.04 | Articles, Books & Journals

Allowing Use of Proffer Statements at Trial

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05.20.04 | Articles, Books & Journals

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New York Law Journal

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05.04.04 | Articles, Books & Journals

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04.06.04 | Articles, Books & Journals

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New York Law Journal

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04.01.04 | Articles, Books & Journals

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03.18.04 | Articles, Books & Journals

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New York Law Journal

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03.02.04 | Articles, Books & Journals

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New York Law Journal

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02.05.04 | Articles, Books & Journals

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02.03.04 | Articles, Books & Journals

Sentencing Guidelines in 2004

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01.15.04 | Articles, Books & Journals

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01.06.04 | Articles, Books & Journals

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New York Law Journal

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2004 | Articles, Books & Journals

Sarbanes-Oxley’s Wake Up Call to Attorneys

22 Penn State International Law Review, Vol. 4, 545 2004

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January 2004 | Articles, Books & Journals

Trademark Dilution on the Constitutional Edge

104 Colum. L. Rev. 161, 2004.

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12.04.03 | Articles, Books & Journals

New Amendments to the Federal Rules of Civil Procedure

New York Law Journal

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12.02.03 | Articles, Books & Journals

Mens Rea for Criminal Securities Prosecutions

New York Law Journal

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11.20.03 | Articles, Books & Journals

Federal-State Cooperation in Tax Investigations

New York Law Journal

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11.04.03 | Articles, Books & Journals

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New York Law Journal

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10.07.03 | Articles, Books & Journals

Joint Defense Agreements, Insider Trading Misappropriation Theory

New York Law Journal

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10.02.03 | Articles, Books & Journals

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New York Law Journal

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09.02.03 | Articles, Books & Journals

Issues Ripe for U.S. Supreme Court Review

New York Law Journal

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08.07.03 | Articles, Books & Journals

‘Worldcom’: Jurisdiction, Case Management in Complex Litigation

New York Law Journal

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07.17.03 | Articles, Books & Journals

IRS Steps Up Investigations of Payroll Tax Abuses

New York Law Journal

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07.01.03 | Articles, Books & Journals

The Hyde Amendment: Five Years Later

New York Law Journal

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06.05.03 | Articles, Books & Journals

Timing, Lies and Videotape

New York Law Journal

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06.03.03 | Articles, Books & Journals

Waiver Issues in Corporate Investigations

New York Law Journal

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05.15.03 | Articles, Books & Journals

Tax Opinions by District Courts in the Second Circuit

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05.06.03 | Articles, Books & Journals

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New York Law Journal

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04.03.03 | Articles, Books & Journals

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New York Law Journal

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04.01.03 | Articles, Books & Journals

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New York Law Journal

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03.20.03 | Articles, Books & Journals

IRS Misconduct: What Happens When the IRS Cheats at Trial?

New York Law Journal

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03.04.03 | Articles, Books & Journals

Principles of Federal Prosecution of Business Organizations

New York Law Journal

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02.04.03 | Articles, Books & Journals

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New York Law Journal

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02.04.03 | Articles, Books & Journals

Attorney Client Privilege and Work Product Protection

New York Law Journal

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01.16.03 | Articles, Books & Journals

The ‘New’ IRS Voluntary Disclosure Policy

New York Law Journal

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01.07.03 | Articles, Books & Journals

Throwing the Book (The Guidelines) at Corporate Criminals

New York Law Journal

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12.03.02 | Articles, Books & Journals

Risk to Confidentiality When Work-Product Is Shown to Auditors?

New York Law Journal

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12.03.02 | Articles, Books & Journals

Increasing Use of Undercover Stings in White-Collar Investigations

New York Law Journal

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11.21.02 | Articles, Books & Journals

Accountants and the Attorney-Client Privilege

New York Law Journal

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11.05.02 | Articles, Books & Journals

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New York Law Journal

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10.10.02 | Articles, Books & Journals

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New York Law Journal

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10.03.02 | Articles, Books & Journals

Class Certification Withheld: Failure to Show ‘Typicality, Adequacy’

New York Law Journal

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09.19.02 | Articles, Books & Journals

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New York Law Journal

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09.03.02 | Articles, Books & Journals

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New York Law Journal

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08.08.02 | Articles, Books & Journals

Private Civil RICO Plaintiffs May Seek Injunctive Relief

New York Law Journal

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08.06.02 | Articles, Books & Journals

Limiting Venue for Business Crime Prosecutions

New York Law Journal

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07.11.02 | Articles, Books & Journals

The Supreme Court’s 2001-2002 Term

New York Law Journal

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07.02.02 | Articles, Books & Journals

Andersen Jury Instruction: A New Collective Corporate Liability?

New York Law Journal

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06.06.02 | Articles, Books & Journals

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New York Law Journal

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06.04.02 | Articles, Books & Journals

Foreign Corrupt Practices Act: An Update

New York Law Journal

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05.16.02 | Articles, Books & Journals

IRS Struggles to Equalize Enforcement Efforts

New York Law Journal

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2001 | Articles, Books & Journals

Justice Under Attack: The Federal Government’s Assault on the Attorney-Client Privilege

1 Cardozo Public Law, Policy and Ethics Journal, Vol. 1, 203 2001

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10.27.99 | Articles, Books & Journals

Litigation Stemming From Hiring Decisions: The Defense Perspective

New York Law Journal

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08.01.99 | Articles, Books & Journals

Gotham Unbound: How New York City Was Liberated from the Grip of Organized Crime

New York University Press, Aug 1, 1999

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11.24.97 | Articles, Books & Journals

Measures to Prevent Trade Secret Theft

New York Law Journal

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February 1997 | Articles, Books & Journals

Securities Litigation Reformed?

Review of Securities & Commodities Regulation, Vol. 29, No. 4, February 1997

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1993 | Articles, Books & Journals

Federal Corporate Sentencing: Compliance and Mitigation

Law Journal Seminars Press 1993

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1993 | Articles, Books & Journals

Using Expert Testimony to Enhance a White Collar Criminal Defense

American Bar Association, White Collar Crime Institute, 1993

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1991 | Articles, Books & Journals

Corporate Sentencing: A Current Perspective

New York State Bar Association, 1991

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1989 | Articles, Books & Journals

RICO 1989 Course Handbook — Vicarious Liability Under Civil RICO

Practicing Law Institute, 1989

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1989 | Articles, Books & Journals

The Government’s Use of RICO in Recent Cases

Practicing Law Institute, Broker Dealer Institute, 1989

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1979 | Articles, Books & Journals

The Constitutionality of Conditions of Pretrial Detention: The Government’s Burden

5 New England Journal on Prison Law, Vol. 2, 1979

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Articles, Books & Journals

United States v. Jean Boustani