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Focus on Tax Controversy and Litigation - The Unprecedented Extraterritorialization of Tax Crimes

In addition to the discussion of the recently proposed U.K. criminal tax legislation, this month’s issue features articles regarding the Tenth Circuit Court decision in McNeill v. United States discussing a managing partner’s...more

How to Respond To Third Party (Non-Government) Civil Subpoenas And Document Requests That Ask For Personal Information

Litigants in a civil dispute often use subpoenas, subpoenas duces tecum, and discovery requests to obtain personal information about individuals who may not be present in the litigation. A request for documents and...more

Insider Trading Before the Supreme Court: Dirks and Salman, Part III

This is the third part of an occasional series examining the issues in Salman v. U.S., No. 15-628, which will be argued before the Supreme Court on October 5, 2016. Petitioner’s Reply Brief centers on two themes: 1) The...more

Government Investigations - How to Respond to a Search Warrant: 10 Practical Steps

In a highly regulated industry such as health care, it’s not uncommon to be the subject of a government investigation. In-house counsel and leadership must be prepared in advance for the possibility of a search warrant being...more

New Sedona Conference Commentary Recommends Restricting the Reach of Document Requests Directed to U.S. Affiliates of Overseas Companies

Earlier this month, the Sedona Conference issued the final version of its “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control.’” The Commentary recommends adopting the “legal right” test to analyze the enforcement of subpoena and document requests, rejecting the “practical ability” standard used by some federal courts, including in New York. more

Being a Returned Fugitive from Justice May Not Be the Worst Thing

But don’t flee justice! This is not legal advice to you, but I really don’t mean to recommend avoiding problems with federal prosecutors by going to other countries where it’s hard for those prosecutors to catch up with you. Still, there’s a back story, and I have some thoughts for someone who may have fled justice in the recent past. more

Second UK Deferred Prosecution Agreement

The Serious Fraud Office has entered into its second-ever Deferred Prosecution Agreement (DPA) with a corporate. Against the backdrop of the first DPA, entered into with Standard Bank late last year, this second DPA provides further guidance on what level of cooperation is necessary from a business being investigated for financial crime to secure a DPA, the application of DPAs in particularly serious instances of bribery, and the calculation of fines in complex bribery cases (Serious Fraud Office v XYZ Ltd, 11 July 2016 (full judgment not yet published).more

Supreme Court Update: Mcdonnell V. United States (15-474) And Voisine V. United States (14-10154

Greetings, Court Fans! Though most of the attention coming out of the final decision day of OT15 has focused on Whole Woman's Health v. Hellerstedt (15-274), where a 5-3 majority held that a Texas law regulating abortion providers imposed an undue burden on a woman's right to choose, the Court also announced two important criminal-law decisions, touching on the federal government's ability to regulate guns and graft.more

Supreme Court Update: Rjr Nabisco, Inc. V. European Community (15-138), Encino Motorcars, Llc V. Navarro (14-415), Kingdomware Technologies, Inc. V. United States (14-916) And Cuozzo Speed Technologies, Llc V. Lee (15-446)

Having cleared some near-blockbusters off the table on Friday (everything's relative this term), we've still got an eight-case backlog to get through before the final decision day of OT15 on Monday. Since we've got an even split of civil and criminal cases in the queue, we're going to break them up accordingly. more

May Antitrust Bulletin

FTC, DOJ Issue Statement on Preserving Competition in the Defense Industry - On April 12, 2016, the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) Antitrust Division issued a joint statement explaining the standards they apply in reviewing proposed mergers and acquisitions in the defense industry. more

English court compels investigators to disclose information on data protection grounds

The High Court has ruled that a company conducting an investigation may be compelled to give effect to requests for information made under data protection legislation. The case serves as a stark reminder that data protection law is increasingly being used as a weapon by individuals affected by corporate investigations.more

Mike Duffy Acquittal Sheds Light on Criminal Code Corruption Offences

Last week’s acquittal of Senator Mike Duffy on fraud, corruption and bribery offences shows Ontario courts will not find “corrupt” intent lightly. The decision underscores the importance of subjective criminal intent in proving corruption offences and makes it clear that one cannot be tricked or coerced into committing these offences, while at the same time raising a warning about the conduct of payors.more

The Art of Self Defense

Corporate compliance programs come in all shapes and sizes and apply whether your company is privately owned or publicly traded. These internal controls take the form of accounting and audit procedures, import-export/regulatory policies, employment guidelines, ethics/anti-corruption initiatives and so on. The intent of any compliance program is to ensure that employees know what is expected of them and that their behavior complies with and is consistent with the “rules of the road” for your business or industry.more

SEC-USAO Charge Former Fund Principal With Fraud

A former managing principal of Blackstone Group, and a partner at Park Hill Group which raises capital for private equity, was charged by the SEC and Manhattan U.S. Attorney’s Office with fraud. The charges are based on claims that he raised millions of dollars using a shell company named to sound like a well known hedge fund. SEC v. Caspersen, Civil Action No. 16-cv-2249 (S.D.N.Y. Filed March 29, 2016).more

Leader of International Pump-and-Dump Sentenced to 216 Months

The man who orchestrated a large international microcap market manipulation involving at least 34 persons was sentenced to serve 216 months in prison after pleading guilty. Harold Gallison, pleaded guilty to two counts of conspiracy to commit wire fraud, one count of conspiracy to commit international money laundering and one count of conspiring to launder the proceeds of a number of securities fraud schemes. U.S. v. Gallison, 1:15-cr-00178 (E.D. Va.).more

This Week In Securities Litigation

This week the SEC brought six actions tied to the failure of a rapidly growing enterprise to maintain the proper internal controls. The agency also brought two proceedings tied to municipal bond offerings and one insider trading case.more

German Cum/Ex-Trades: Enhanced Risks and Industry-Wide Challenges

The German and international financial industries and their advisors have come under new pressure to investigate so-called 'cum/ex' trades conducted between 2000 and 2012. For many years, tax authorities and criminal prosecutors have pursued banks and their advisors for claiming tax refunds in connection with stock trades conducted around the time of a company's dividend date.more

SEC Prevails in Payton Insider Trading/Tipping Case

The SEC prevailed in its insider trading/tipping case against two New York brokers were Newman and its tipping standard was a key issue. SEC v. Payton, Civil Action No. 14 civ 4644 (S.D.N.Y.). On Monday a jury in New York found in favor of the SEC and against the defendants.more

SEC Partially Settles “Portfolio Manager” Insider Trading Case

The SEC partially settled what is perhaps one of its more unusual insider trading cases. It involved defendants who posed as portfolio managers who then induced investment bankers to entrust them which inside information that was then used to trade. SEC v. Fishoff (D.N.J. Filed June 3, 2015).more

Effort to Meet Earnings Target Yields SEC – DOJ Fraud Charges

The Commission has been tried to make accounting and financial fraud issues a key focus at least since the creation of the financial fraud task force two years ago. Last week the agency brought an action against Monsanto centered on its accounting practices. This week the SEC filed a four proceedings tied to a financial fraud at Marrone Bio Innovations, Inc., a seller of biologically-based products that farmers and growers use to protect crops. SEC v. Marrone Bio Innovations, Inc. (E.D. Cal. Filed February 17, 2016). The USAO filed parallel criminal charges.more

Toward More Effective SEC and DOJ Remedies

Since the market crisis there has been a continuing outcry about holding senior corporate executives responsible. From Capitol Hill to citizens across the land there has been a continuous demand for some kind of Judge Roy Bean justice – hang them high! more

SEC-USAO Bring Insider Trading Case That is “Newman-Proof”

When anyone discusses insider trading these days Newman invariably becomes a key topic. Prosecutors decry the decision and its tipping standard. Little doubt why. It has been offered as a defense in innumerable cases. A number of insider trading convictions have been undone by the Second Circuit’s decision.more

Raising the Stakes for AML Compliance Officers: Court Refuses to Rule Out Potential Liability for Role in Employer's BSA Compliance Shortcomings

Why it matters - A federal court judge in Minnesota has rejected the motion of a former chief compliance officer to dismiss the U.S. government's claim that he is liable under the federal Bank Secrecy Act for his employer's failure to comply with applicable BSA requirements. The case arises out of one of the longest-running enforcement sagas in the money services business industry but has implications for AML compliance officers of any entity subject to the AML compliance and recordkeeping and reporting requirements of the BSA. Those implications include not only exposure to substantial civil money penalties for the compliance shortcomings of their employers but also a potential permanent ban on working as AML compliance professionals in any entity subject to the BSA. The ruling was made in a complaint filed in December 2014 by the U.S. Department of Justice on behalf of the U.S. Department of the Treasury (DOT) to enforce a $1 million civil money penalty assessed by FinCEN against Thomas Haider, the chief compliance officer (CCO) for MoneyGram International from 2003 to 2008, for failure to ensure the company implemented and maintained an effective AML program and complied with Suspicious Activity Report (SAR) filing obligations. The complaint also requested an order prohibiting Haider from working—either directly or indirectly—for any financial institution.more

LIBOR acquittals: Keep calm and carry on

Here’s some information that may shock certain sections of the media: Not everyone charged with a crime will be, or should be, found guilty. Even people with a case to answer on paper can still, quite properly, be acquitted.more

January 2016: Trial Practice Update

DOJ’s New Policies Target Executives of Corporate America. The United States Department of Justice has raised the stakes in corporate criminal investigations, and general counsel, corporate executives, and board members should take note. In September 2015, the DOJ issued a policy memorandum regarding corporate executives in criminal investigations, and two months later in November, it revised the Principles of Federal Prosecution of Business Organizations to limit the ability of corporations under investigation to obtain credit for cooperating with the government. These two developments have significantly changed the legal landscape for both corporations and corporate employees who become subjects of criminal investigations.more

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