Category Archives: General

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.

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

Supreme Court Hears Argument In Honeycutt

The Honeycutt brothers run an operation selling iodine to methamphetamine dealers.  One brother makes $269,000 in total profits.  The other brother gets paid a weekly salary, but otherwise takes home nothing.  They are both charged in a drug conspiracy.  The first brother reaches a plea deal with the government, and as a result gets to keep most of the money he made.  The second brother loses at trial.  At his sentencing, the trial court orders the second brother to forfeit (i.e. give back to the government) an amount equal to the total $269,000 in profits – even though he never saw a dime. Continue reading Supreme Court Hears Argument In Honeycutt

New Scrutiny of Civil Forfeiture Laws

The Inspector General of the U.S. Department of Justice (“DOJ”) released a report on March 29, 2017, faulting the DOJ for failing to systematically evaluate its forfeiture data to determine the extent to which seizures benefit law enforcement efforts or present potential risks to civil liberties.  While the Inspector General’s (“IG’s”) report specifically focused on the forfeiture activities of the federal Drug Enforcement Agency (DEA), its conclusions may likely be extended to other arenas in which the federal government initiates civil forfeiture activities, including white collar crime.  Continue reading New Scrutiny of Civil Forfeiture Laws

Changes Are Coming to the SEC Enforcement Division – What Does It All Mean?

This week reports surfaced that a major shift in the SEC enforcement division had taken place – behind the scenes.  The timing is quite interesting as the agency’s annual seminar and SEC Alumni dinner will occur at the end of the month.  No doubt this will be a topic, among many, of the annual SEC cocktail regulars in DC.

The reports indicate that the Acting Chairman Michael Piwowar has centralized the power of the enforcement division to “issue subpoenas or formally launch probes,” as Reuters put it.  The question that has been asked is – What does all of this really mean, really?  Continue reading Changes Are Coming to the SEC Enforcement Division – What Does It All Mean?

The Supreme Court of New Jersey Clarifies “Plain View” Seizures (Sort of): State v. Gonzales

“(P)lain view” seizures were recognized by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971).  The doctrine is true to its name: it permits warrantless seizures of illegal contraband that is in the “plain view” of law enforcement.   This is the law in New Jersey too.  State v. Bruzzese, 94 N.J. 210 (1983).

There is common sense at work here.  If law enforcement finds evidence out in the open, it would be unduly burdensome and illogical to require the State to leave the evidence in place while it secures a warrant to support the necessary seizure.

But this exception to the Fourth Amendment’s warrant requirement requires a dash of kismet and a dollop of good luck: law enforcement must be in the right place, at the right time, to discover and seize the evidence. If they are not, then they cannot.

Yet, what if such a happy fortuity is more than luck, but is also the product of some prior planning or scheming?  What if law enforcement’s actions are challenged as pre-textual?  When and how is the subjective intent of the police to be considered in evaluating the validity of a “plain view” seizure? Continue reading The Supreme Court of New Jersey Clarifies “Plain View” Seizures (Sort of): State v. Gonzales

Supreme Court of New Jersey Increases Protections for Cellphone Billing Records in State of New Jersey v. Lunsford

By Eric R. Breslin

Cellular telephone billing records are another mundane aspect of modern life. They arrive monthly in the mail or online and hardly anyone I know (at least) spends any great amount of time reviewing them for accuracy or content. In most households, they go into the “to be paid” pile, where they reside until processing.

But telephones are no longer just telephones and cellular telephone bills, if parsed thoroughly and knowingly, can reveal on their face a startling amount of personal information and can provide entrée to much more. In 2016, cellular telephones must be viewed as small super computers and cellular telephone bills can yield as much information as banking or credit cards records can, if not more. Continue reading Supreme Court of New Jersey Increases Protections for Cellphone Billing Records in State of New Jersey v. Lunsford