The Second Circuit Loosens The Reins On Insider Trading Prosecutions

By Jovalin Dedaj

After an intervening decision by the United States Supreme Court last year and a rare rehearing of oral argument in March, the Second Circuit has affirmed the conviction of Matthew Martoma, a former portfolio manager at S.A.C. Capital Advisors. In doing so, the Second Circuit has signaled a substantial shift in insider trading law by reversing course from its 2014 decision, which made prosecuting insider trading cases more difficult. Continue reading The Second Circuit Loosens The Reins On Insider Trading Prosecutions

Back to the Future (Part II) – The Expansion of Civil Asset Forfeiture

By Michael E. Clark and Amanda L. Bassen

In yet another modification by the Department of Justice (“DOJ”) to Obama administration policies, on July 19, 2017, Attorney General Jefferson Sessions announced a policy reviving the criticized civil asset forfeiture practice that allows the DOJ to forfeit assets seized by state or local law enforcement.  The Attorney General’s order (the “Order”) authorizes the federal forfeiture of property seized under state law by state and local law enforcement agencies when alleged criminal conduct purportedly violates federal law (referred to by the DOJ as “federal adoption”).  The Order allows for the seizure of cash and other personal property from individuals suspected of crimes, but not yet convicted or charged.  Continue reading Back to the Future (Part II) – The Expansion of Civil Asset Forfeiture

Back to the Future

By Michael E. Clark and Amanda L. Bassen

On May 12, 2017, Attorney General Jeff Sessions issued a memorandum, dated May 10, 2017 (the “Sessions Memorandum”), ordering stricter charging and sentencing policies to the Department of Justice (“DOJ”) in conducting federal prosecutions.  The Sessions Memorandum announced that the DOJ must charge and pursue “the most serious, readily provable” offenses.  Attorney General Sessions defined such offenses as those carrying the greatest sentence under the United States Sentencing Guidelines (“USSG”), including sentences carrying mandatory minimum terms of incarceration.  Continue reading Back to the Future

Reining in the SEC: The Supreme Court Limits Disgorgement to a Five-Year Statute of Limitations

By Mauro M. Wolfe and Jovalin Dedaj

In yet another setback for the SEC, the Supreme Court unanimously decided that disgorgement actions, a cornerstone of SEC enforcement, are subject to a five-year statute of limitations. Continue reading Reining in the SEC: The Supreme Court Limits Disgorgement to a Five-Year Statute of Limitations

Ninth Circuit Hands Defense an Important Brady Win

Defense attorneys in the Ninth Circuit are celebrating the appellate court’s recent decision in United States v. Liew for its explication of the Brady doctrine and its implicit recognition that sometimes FBI agents are not as forthcoming as they should be.  Continue reading Ninth Circuit Hands Defense an Important Brady Win

Home-Field Advantage? Scrutinizing the Independence of the SEC’s ALJs

By Eric R. Breslin, Mauro M. Wolfe, and Jovalin Dedaj

In the last few weeks, the SEC and its administrative law judges (“ALJs”) have tested the truthfulness of the old adage, “There’s no such thing as bad publicity.”

On May 3, 2017, the United States Court of Appeals for the Tenth Circuit denied the SEC’s request to rehear a decision, in which the Court determined that the SEC’s administrative law judges were unconstitutional appointments. That decision was just another setback for the SEC in a high-stakes constitutional debate which could potentially put the issue of how the SEC appoints its ALJs before the Supreme Court. Later this month, much to the dismay of the SEC, the United States Court of Appeals for the D.C. Circuit will rehear arguments in its decision, which initially held in favor of the SEC. Continue reading Home-Field Advantage? Scrutinizing the Independence of the SEC’s ALJs

Melissa Geller Named A “New Leader of the Bar” by New Jersey Law Journal

Melissa GellerDuane Morris associate Melissa Geller has been named one of the New Jersey Law Journal‘s “New Leaders of the Bar.” With this list, the Law Journal “endeavors to identify attorneys representing the future of the legal profession in New Jersey.”

The honorees will be recognized at the Law Journal’s Professional Excellence event on June 20.

Department of Health and Human Services, Office of Inspector General Issues Compliance Effectiveness Guide, which has Broad Implications for Health Care Compliance Programs

By Michael E. Clark and Amanda L. Bassen

On March 27, 2017, the U.S. Department of Health and Human Services, Office of Inspector General (“OIG”) issued a 53-page resource guide on compliance program effectiveness, titled “Measuring Compliance Program Effectiveness: A Resource Guide” (“Compliance Guide”). The Compliance Guide is broken into seven compliance program elements, each containing numerous suggestions on how and what to measure with respect to each element. The OIG explained that its purpose in issuing the Compliance Guide was to provide health care organizations with as many ideas as possible for measuring the elements of their compliance programs, which would allow any type of health care organization to choose those that best suit its needs. The OIG cautions that the Compliance Guide should not be used as a “checklist” but rather be tailored to an organization’s particular needs in any given year.  Continue reading Department of Health and Human Services, Office of Inspector General Issues Compliance Effectiveness Guide, which has Broad Implications for Health Care Compliance Programs

Time is Running Out for the SEC: The Circuit Split on Limiting SEC Disgorgement to a Five-Year Statute of Limitations Signals an Impending Major Change

By Mauro M. Wolfe and Jovalin Dedaj

Under the new Administration, we have been promised a new tone regarding how Government interfaces with the market.  This “change” is of particular interest to those who defend matters before the SEC.  Will we see a change from “broken windows” enforcement where everything matters to a more traditional, and possibly, more friendly regulatory environment?  Winding its way through the courts is an SEC life-altering moment: does the SEC concede that there is a five-year statute of limitations on enforcement cases including disgorgement?  As far as penalties and fines are concerned, the Supreme Court has already ruled on that issue and said it does.  The SEC lost that one.  The question remaining is whether the Supreme Court will apply the same limitation to disgorgement and how the new SEC leadership will respond.  The short answer is that such a limitation should apply.  Continue reading Time is Running Out for the SEC: The Circuit Split on Limiting SEC Disgorgement to a Five-Year Statute of Limitations Signals an Impending Major Change

Healthcare Fraud Takedowns

As a former federal prosecutor in Chicago, I am well acquainted with the phrase “takedowns.”  For the unwary, a subject-area “takedown” is a practice used by federal prosecutors to send a message to a given industry.  Prosecutors investigate and prepare to charge cases in a given industry sector and then release the charges nationally on the same day along with a press release.  The idea is that such public “takedowns” serve as a deterrent to future criminal activity in the industry. For example, almost every April 15th, prosecutors across the country release charges in dozens of tax-fraud cases. Continue reading Healthcare Fraud Takedowns