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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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By Kyle R. Freeny and Benjamin G. Greenberg
Over the last decade or so, anti-money laundering (AML), counter-terrorism financing (CFT), and sanctions compliance have been the subject of increased enforcement efforts. We expect this trend to accelerate in 2021 and beyond, propelled at least in part by the recent enactment of the Anti-Money Laundering Act of 2020.
By Ty E. Howard, Scarlett S. Nokes, Gene R. Besen and Jason P. Mehta
With the start of the Biden administration and a DOJ very likely led by Merrick Garland, predictions have begun about future trends in government enforcement. Two pieces of conventional wisdom emerge: First, the focus will shift to more white-collar crime enforcement actions. And second, the healthcare industry will continue to be a major focus for investigators and prosecutors.
By Robert J. Anello and Richard F. Albert
Wall Street has greeted Gary Gensler’s nomination as Chair of the SEC with some trepidation, perhaps with good reason. Congress, by contrast, may have presented him with a powerful signing bonus.
By Sozi Pedro Tulante and Joshua Drew
The increasing number of regulators and enforcement agencies bringing foreign bribery cases across the globe raises the specter of successive or “carbon copy” cases. Policymakers and practitioners need to be aware of this developing risk and take steps to mitigate it.