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A little over 100 years ago, the Supreme Court declined to extend the Fifth Amendment privilege against self-incrimination to corporations responding to grand jury subpoenas for documents, establishing what has been termed the “collective entity doctrine.” Hale v. Henkel, 201 U.S. 43, 74-76 (1906) (corporate officer, who had been immunized in his individual capacity, attempted to assert Fifth Amendment right on behalf of his employer). Some Justices have expressed discomfort with the application of the collective entity doctrine to small corporations responding to grand jury subpoenas, and recent decisions by the Court have extended First Amendment rights to corporations that had previously been limited to individuals. These developments suggest that the Court, particularly with the arrival of Justice Neil M. Gorsuch, might be receptive to reconsidering the scope of the collective entity doctrine, a rule whose principal virtue seems to be that it is a bright-line, particularly in the context of small, closely-held corporations.
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By Robert J. Anello and Richard F. Albert
Despite the broad language of the Espionage Act, the DOJ has faced significant hurdles in pursuing prosecutions outside the traditional espionage context, and particularly where the alleged foreign agent’s activity involves ostensibly legitimate international business dealings.
Cryptocurrency: Rich In Investment Opportunity; Ripe for Fraud Schemes
By Melissa Davis and Mark Parisi
The recent implosion of FTX Trading leaves investors and their advisers wondering whether any crypto investment is safe. There have been dozens of cryptocurrency-related fraud schemes in recent years including Ponzi schemes and investment schemes using crypto and the blockchain to facilitate the fraud scheme.
What the SEC May Be Signaling Through Its Approach to NFTs and F-NFTs
By Mark Cianci, Charles Humphreville, Kelley Chandler and Ty Owen
Recent actions by the U.S. Securities and Exchange Commission (SEC), together with certain statements by SEC commissioners, may indicate a shift in approach toward a rebuttable presumption that digital assets are securities, without deference to formal legal tests.
Impact of ‘Hoskins’ Cases on the FCPA and White-Collar Law
By Elkan Abramowitz and Jonathan Sack
This article examines the impact of Hoskins on three issues of importance to white-collar practitioners: the scope of the FCPA; the interpretation of white-collar criminal statutes; and the authority of the district court to consider at the outset of a prosecution threshold questions of the reach of the law to foreign individuals.
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