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Judge Jed Rakoff famously noted that, “[t]o federal prosecutors of white collar crime, the mail fraud statute is our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart — and our true love.” Jed S. Rakoff, The Federal Mail Fraud Statute (Part 1), 18 Duq. L. Rev. 771 (1980). This effusive enthusiasm for the federal mail and wire fraud statutes is rooted largely in their “adaptability.” Id. In recent decades, the federal prosecutors of the Second Circuit have demonstrated, and the Second Circuit has affirmed, that adaptability by broadly using the federal fraud statutes to penalize even conduct that does not and could not result in a transfer of tangible property from the victim to the defendant. These prosecutions have relied on the theory that a defendant can fraudulently deprive a victim of the intangible “right to control” its assets, even if the victim is not deprived of any tangible money or property. While this theory has been repeatedly affirmed by the Second Circuit, it is incompatible with a series of recent Supreme Court cases in which the Court has narrowed the scope of federal white-collar criminal statutes by adopting narrow definitions of the term “property.” Given the Second Circuit’s crucial role in defining the law for the prosecution of complex white-collar criminal cases, this discrepancy looms large: the Supreme Court should eliminate the Second Circuit’s dubious right to control doctrine.
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Developments in Federal Whistleblowing Programs: What Compliance Officers Need to Know
By Jonathan B. New, Patrick T. Campbell and Lauren Lyster
This article examines recent developments and trends concerning federal whistleblower programs that compliance officers need to know and provides best practices recommendations for ensuring that your company maintains a robust whistleblower and anti-retaliation program in light of increased whistleblower activity.
OFAC Asks Non-U.S. Persons to Advance U.S. Foreign Policy
By Harry Sandick and Gautam Rao
In recent years, U.S. prosecutors and regulators have shown increasing interest in prosecuting people and entities with little or no connection to the United States. This trend has been especially pronounced in the context of the Foreign Corrupt Practices Act (FCPA) and has also extended beyond the FCPA to the prosecution of white-collar crime more generally.
Preserving the Privilege In the Corporate Setting
By Jonathan S. Feld and Kevin Connor
Assessing the risks and liabilities of a potential transaction requires frank and open communication between the parties, including legal counsel. Understanding the scope and limitations of this privilege in transactional settings and who “holds” it is vital to its preservation.
Scared of Your Clients’ Involvement With Cryptocurrency?
By Ross Benson and Robert N. Driscoll
Given the rapid expansion of interest and participation in cryptocurrency transactions, it’s not a matter of whether you have an interest in crypto, think it’s all a bizarre techno-bubble, the eventual replacement for fiat currency, or somewhere in between. The fact of the matter is your clients, and future clients, are more likely than ever to have a connection to this market, and a brief review of the headlines can make this prospect seem terrifying.
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