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January 20, 2022 | New York Law Journal

The SEC's Rulemaking Process: Long-Haul or Short-Cut?

This article: describes the SEC's authority to issue rules under the Securities Exchange Act of 1934 and the additional requirements for rulemaking under the Administrative Procedure Act; considers a professor's recent proposal of a "fairness" short-cut around the traditional "economic" or quantitative component of the SEC rulemaking process; and describes the exacting analytical process that has been required by courts to date in cases of SEC rulemaking.
13 minute read
January 19, 2022 | New York Law Journal

Application of the Attorney-Client Privilege to Client Identities

Earlier this Term, the Supreme Court declined to review a Fifth Circuit decision upholding a John Doe summons requiring a law firm to disclose the identities of clients to the IRS. In this edition of his Tax Litigation Issues column, Jeremy H. Temkin addresses the Fifth Circuit's opinion, and writes: By declining to take up the issue, the Supreme Court has, for the moment, left it to the lower courts to establish the appropriate limits of John Doe summonses in this context, and 'Taylor Lohmeyer' provides instructive guideposts to practitioners litigating application of the privilege to such circumstances.
9 minute read
January 06, 2022 | New York Law Journal

Property in Mail and Wire Fraud Cases: 'Kelly v. United States' and Its Aftermath

In 'Kelly v. United States', a unanimous Supreme Court held that a scheme was not intended to "obtain property" when its objective was to misuse government officials' regulatory powers, or when monetary losses were "incidental," and not the actual object of the scheme. Following 'Kelly', the meaning of property was central to two high-profile cases in the Second Circuit, 'Blaszczak' and 'Gatto'. In this edition of their White-Collar Crime column, Elkan Abramowitz and Jonathan S. Sack explain the impact of 'Kelly' on 'Blaszczak' and 'Gatto' and conclude with a brief discussion of the "right to control" theory of mail and wire fraud, which has been challenged in light of the 'Kelly' decision.
10 minute read
December 13, 2021 | New York Law Journal

When the Disclosure of Privileged Communications Does Not Constitute a Waiver

In this edition of their Southern District Civil Practice Roundup, Edward M. Spiro and Christopher B. Harwood discuss a recent decision that addressed three notable exceptions to the third-party waiver rule.
7 minute read
December 08, 2021 | New York Law Journal

Signaling Tougher Tone, Biden Administration Steps Backward

The key policy changes announced thus far appear to be more symbolism than serious efforts at effective reform. Substantively, many will see these changes as a reversion to prior policies that did not work particularly well in practice and rightly were the subject of criticism.
12 minute read
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November 17, 2021 | New York Law Journal

The Revenue Rule and International Tax Collection

In this edition of his Tax Litigation Issues column, Jeremy H. Temkin reviews the Revenue Rule and considers the apparent lack of enthusiasm for non-judicial Mutual Collection Assistance Requests designed to bypass the Rule, all pointing to the obstacles encountered by foreign governments pursuing tax revenues in the United States.
10 minute read
November 05, 2021 | New York Law Journal

DOJ's China Initiative's Three-Year Anniversary: Growing Pains and Uncertainty

After three years, it is clear that only a portion of the cases under the China Initiative actually involve charges of economic espionage or conspiracy to transmit information to the Chinese government.
8 minute read
November 03, 2021 | New York Law Journal

Who Is a Fugitive? The Second Circuit Interprets the Fugitive Disentitlement Doctrine

In this edition of their White-Collar Crime column, Elkan Abramowitz and Jonathan S. Sack explore the Second Circuit's recent decision in 'United States v. Bescond', which held that the defendant, a French citizen charged with commodities fraud, was not a "fugitive."
10 minute read
November 03, 2021 | Connecticut Law Tribune

Second Circuit Decision on Fugitive Disentitlement Allows French National to Litigate Dismissal From Home

In this edition of their White-Collar Crime column, Elkan Abramowitz and Jonathan S. Sack explore the Second Circuit's recent decision in 'United States v. Bescond', which held that the defendant, a French citizen charged with commodities fraud, was not a "fugitive."
10 minute read
October 18, 2021 | New York Law Journal

Determining the Citizenship of Trusts for Diversity Jurisdiction

In this edition of their Southern District Civil Practice Roundup, Edward M. Spiro and Christopher B. Harwood discuss a recent decision in which Magistrate Judge Robert W. Lehrburger recently addressed whether a trust's citizenship depends on the citizenship of its trustee(s), its beneficial owner(s), or both.
9 minute read

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