Following weeks of protests ignited by the death of George Floyd, a storm of social media activism, and bipartisan calls for reforms to policing, the difficult issue of whether the legal doctrine of qualified immunity should survive has emerged onto the national center stage. Continue reading Destined for Demise?—The Fate of the Qualified Immunity Doctrine Remains Uncertain Amid Newest Federal and State Policing Reform Efforts
On June 22, 2020, the Supreme Court, in an 8 to 1 decision, held in Liu v. SEC that the U.S. Securities and Exchange Commission (“SEC” or “Commission”) may seek “disgorgement” in federal court actions in amounts which do not exceed a wrongdoers’ net profits and are, if possible, ultimately returned to victims pursuant 15 U.S.C. § 78u(d)(5), which authorizes the SEC to seek “equitable” relief. Continue reading All’s Fair in Crime and Disgorgement: Supreme Court Upholds SEC’s Authority to Disgorge Ill-Gotten Gains with Limitations
In the wake of national protests against police brutality surrounding the death of George Floyd, and ongoing national debate for police reform, New York lawmakers have seized the opportunity to take a stand against law enforcement’s use of a controversial surveillance technique, known as the geofence warrant, or “reverse location search.” Continue reading Scaling the (Geo)Fence: New York Lawmakers Push to Outlaw Geofence Warrants amid Ongoing National Debate for Police Reform
It did not take long. On April 3, 2020, the Small Business Administration began accepting applications for companies to participate in the Paycheck Protection Program (“PPP”). By early May, the first criminal charges began to roll in. The most attention-getting of these was filed against Maurice Fayne, better known as “Arkansas Mo” from the VH1 reality television show “Love & Hip Hop: Atlanta.” On May 12, 2020, United States Attorney for the Northern District of Georgia charged Fayne with one count of bank fraud in violation of 18 U.S.C. § 1344, alleging that he defrauded United Community Bank in connection with a loan it issued under the PPP. This is among the first prosecutions arising in connection with a PPP loan. Continue reading Reality Television Personality Amongst First Prosecuted for PPP Fraud
This past week, federal and state correctional facilities across the country have confirmed outbreaks of COVID-19 infections among inmates and staff. New York City’s primary jail, Riker’s Island, currently has the most confirmed cases, with 52 inmates and 30 employees testing positive. As this blog and other outlets have reported, crowded conditions, limited access to healthcare, and a high-risk population mean those incarcerated are particularly vulnerable to the disease.
Since the outbreak of the COVID-19 virus, law enforcement officials throughout the country have publicly committed to aggressively combatting pandemic-related fraud. Those pronouncements have translated into action focused, at least at this early stage, upon frauds which might impact consumers’ health and safety. The first federal civil enforcement action took place on Saturday, March 21, 2020. On that date, the U.S. Department of Justice, in coordination with the U.S. Attorney for the Western District of Texas, filed the first civil enforcement action against a COVID-19 related fraud. Prosecutors sought an injunction shutting down a website, which purportedly offered to provide “free” coronavirus “vaccine kits” for a $4.95 shipping and handling fee. This request for injunctive relief, which resulted in a temporary restraining order pursuant to 18 U.S.C. § 1345, is likely an omen of more to come. Continue reading U.S. Department of Justice Files Civil Complaint for COVID-19-Related Fraud
Federal and state prison officials have started releasing their action plans in response to the COVID-19 outbreak. The BOP and some states have suspended legal and/or social visits and inter-facility transfers for 30 days or more, among other changes in policy that we discussed last week. The links below will direct you to the complete guidance issued by the BOP and various state prison authorities:
As businesses and governments scramble to contain the coronavirus pandemic (“COVID-19”), one segment of society is uniquely vulnerable: the prison population. Poor hygiene, limited medical resources, overcrowding, and prohibitions on over-the-counter medical supplies such as hand sanitizer make corrections facilities and immigration processing centers very susceptible to the disease. It presents a serious threat to the prison system and could quickly escalate into a disaster if immediate steps are not taken.
The White House recently unveiled its federal budget proposal and, as expected, funding for regulatory agencies is on the chopping block once again. Under the proposal, the Consumer Financial Protection Bureau (“CFPB”) would see its budget trimmed by $110 million in 2021 while the Commodity Futures Trading Commission (“CFTC”) faces a potential budget cut of more than 20 percent.
Yet, perhaps the most surprising feature of the proposed budget is what it leaves out. The administration has proposed eliminating the Public Company Accounting Oversight Board (“PCAOB”) and reassigning its responsibilities to the Securities and Exchange Commission (“SEC”) beginning in 2022. The White House estimates the move would save the government $57 million in its first year and up to $580 million by 2030 by reducing “regulatory ambiguity and duplicative statutory authorities.” But doing away with the PCAOB will weaken the policing of auditing firms and ignores the improvements made in accounting standards and auditing quality. Continue reading Budget Proposal to Eliminate the PCAOB Could Leave Financial Markets More Susceptible to Accounting Fraud and Misconduct
Sheldon Silver, former speaker of the New York State Assembly, was convicted of a number of political corruption crimes in 2015, namely accepting bribes in exchange for favorable “official acts” that benefited some bribe payors. He appealed his conviction to the Second Circuit on two grounds: first, that the trial court erred by failing to require that the prosecution establish that he and the bribe payor had a “meeting of the minds” on the specific official act to be performed in exchange for the bribes; and second, that the trial court erred by allowing the prosecution to proceed on a theory that allowed conviction based on a “nonspecific promise to undertake official action on any future matter beneficial to the payor.” (Emphasis added.)
On January 21, 2020, the United States Court of Appeals for the Second Circuit partially reversed Silver’s conviction and remanded the case for resentencing. The court’s logic and findings are significant and merit close attention.