Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
In the Courts
Foreign Banking Records
On Dec.19, 2013, the U.S. Court of Appeals for the Second Circuit upheld an order to compel foreign banking records under a grand jury subpoena and subsequent contempt order by the district court, rejecting the respondent's argument that the Fifth Amendment privilege against self-incrimination applied to the act of producing the records sought. In Re Grand Jury Subpoena Dated February 2, 2012, No. 12-cv-00553 (JFB), 2013 WL 6670733 (2d Cir. Dec. 19, 2013). The respondent, known as John Doe, received a grand jury subpoena for “records that the Bank Secrecy Act ('BSA') requires Doe to maintain” with respect to “any foreign bank accounts in which Doe has a financial interest.” Id. at *1. Doe challenged the subpoena, arguing that the Fifth Amendment privilege against self-incrimination applied to protect him from being being compelled by the government to produce the records requested. Id. The district court held that an exception to the Fifth Amendment privilege known as the “required records exception” applied in this case and compelled production. Id. Doe persisted in his refusal to produce the records and the district court subsequently held him in contempt. Id.
On appeal, Doe argued that the Fifth Amendment applied because compliance with the subpoena would require him to either produce documents that might incriminate him or confirm that he had violated the BSA's record-keeping requirements. Id. The argument is founded on a concept known as the “act of production doctrine,” under which “the Fifth Amendment privilege might protect an individual from being required to produce documents ' when the witness's simple act of producing the documents could be used against the witness.” Id. at *2 (citing Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)).
In response, the government argued that the records sought in this case fell under an exception to the act of production doctrine for “required records,” which nullifies Fifth Amendment protection where the records sought are required to be maintained by law. Id. at 3 (citing Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948).) This exception is subject to a three-factor test known as the Grosso test, requiring that the records sought must: 1) be essentially regulatory; 2) be customarily kept; and 3) “have assumed 'public aspects' which render them at least analogous to public documents.'” Id. (citing Grosso v. United States, 390 U.S. 62, 67'68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).)
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?