John G. Martin, a partner at Garfunkel Wild, writes: The concepts of fraud and fraudulent intent seem simple enough to apply, at least on the surface. But something about placing the words “health care” in front of these terms tempts federal prosecutors to broaden the definitions, and to seek to include within their reach conduct which, although admittedly wrong on some level, is already addressed through regulatory prohibition and punishment, and to substitute prison sentences for the fines and debarments historically used to sanction such conduct.
Benjamin Gruenstein and Jeff Izant of Cravath, Swaine & Moore write: In ‘United States v. Newman’, the U.S. Court of Appeals for the Second Circuit will likely answer a question that has divided courts in insider trading cases: whether, under the so-called “classical” theory of insider trading, a tippee must have knowledge of the personal benefit the tipper derived from the scheme.
Randy Zelin, a partner at Moritt Hock & Hamroff, writes: There are specific ways in which a lawyer can actually maximize the odds that his or her notes from a proffer session will be viewed by the court as an “attorney work product” and therefore will not be discoverable.
Margery Feinzig, Melissa Fernandez and Joseph Martini of Wiggin and Dana explore the basis for defending against a restitution claim or Guidelines loss calculation when victims fail to mitigate losses based on a recent concurrence in a U.S. Supreme Court decision.