Expert Analysis

• Opinion

  The Supreme Court Can't Fix The SEC's In-House Court Issue

  

  The U.S. Supreme Court agreed to hear an appeal of the Fifth Circuit's decision in Jarkesy v. U.S. Securities and Exchange Commission that, if upheld, could shutter the in-house courts used by the SEC to litigate many of its enforcement cases, but a constitutional challenge to these courts is probably too blunt an instrument for the job, says David Slovick at Barnes & Thornburg.

• Perspectives

  Service Members Should Have Right To Unanimous Verdicts

  

  As several recent cases exemplify, service members can be convicted of crimes by nonunanimous juries in military courts and cannot appeal such verdicts, despite Supreme Court precedent from recent years — a glaring constitutional error that Congress should rectify expeditiously, says Kevin Carroll at Hughes Hubbard.

• Opinion

  Appellate Funding Disclosure: No Mandate Is Right Choice

  

  The Advisory Committee on Appellate Rules' recent decision, forgoing a mandatory disclosure rule for litigation funding in federal appeals, is prudent, as third-party funding is only involved in a minuscule number of federal cases, and courts have ample authority to obtain funding information if necessary, says Stewart Ackerly at Statera Capital.

• Halkbank Ruling Gives Gov't Leverage But Erodes Comity

  

  The U.S. Supreme Court’s recent decision in Halkbank v. U.S., denying the Turkish state-owned bank immunity from prosecution, erodes the historic principle of comity in favor of imposing domestic law on foreign states, and could potentially usher in an era of mutually assured litigation between world powers, say Solomon Shinerock and Annika Conrad at Lewis Baach.

• UCC Provisions Leave Room For Elder Financial Abuse

  

  Under the Uniform Commercial Code a bank owes no duty to second-guess a customer's payment order, a situation financial scammers work tirelessly to exploit, as in the recent Cook case in the Eastern District of Virginia, leaving elder bank customers and their family members with few options for protection, says J.P. McGuire Boyd at Williams Mullen.

• Case Law Is Mixed On D&O Coverage For Gov't Investigations

  

  As the Fourth Circuit’s recent decision in Brown Goldstein v. Federal Insurance Co. demonstrates, federal appeals courts take different approaches to determine whether government investigations are covered by directors and officers liability insurance, so companies and individuals must review their policy language, say Chloe Law, Jan Larson and Caroline Meneau at Jenner & Block.

• Justices' Test For Redacted Confessions Casts Context Aside

  

  The U.S. Supreme Court’s recent decision in Samia v. U.S., allowing co-defendant confessions with certain redactions to be admitted as evidence in a joint trial, puts form over substance by focusing on the superficial aspects of a confession, which may ultimately erode Sixth Amendment protections, says Michael McCarthy at Kendall Brill.

• Risk Readiness Steps Can Help Protect, Track Digital Assets

  

  Companies using digital assets face unique risks when it comes to cyberattacks, fraud and other financial crimes, however many tactics can be put in place to narrow the scope of potential exposures and retrieve stolen assets should the need arise, say Paul Tzur and Jennifer Achilles at Blank Rome, and Jeremy Sheridan at FTI Consulting.

• High Court Ruling Provides New Avenue For Foreign Plaintiffs

  

  The U.S. Supreme Court’s recent ruling in Yegiazaryan v. Smagin offers a new path for foreign plaintiffs attempting to enforce arbitral awards in the U.S., but it also leaves the standard for such attempts under the Racketeer Influenced and Corrupt Organizations Act unsettled, say attorneys at Wiley.

• Paltrow Win Offers Lesson In Celebs Staying On Brand At Trial

  

  Gwyneth Paltrow was recently cleared of liability for a ski collision by a Utah state jury, demonstrating why lawyers should consider the public's preexisting perception of a high-profile client and not be afraid to leverage it at trial, even if a celebrity’s persona is unrelatable, say attorneys at Winston & Strawn.

• Justices' Corruption Ruling May Shift DOJ Bank Fraud Tactics

  

  After the U.S. Supreme Court’s decision last month in Ciminelli v. U.S., curtailing a government theory of wire fraud liability, prosecutors may need to reconsider their approach to the bank fraud statute, particularly when it comes to foreign bank enforcement, says Brian Kearney at Ballard Spahr.

• Tips For Obtaining Removal From OFAC's Sanctions List

  

  To obtain interim relief or removal from the Office of Foreign Assets Control's specially designated nationals list, sanctioned individuals or entities must determine why they were designated and seek relief from OFAC, while demonstrating transparency and a willingness to remediate conduct, says Robert Seiden at Seiden Law.

• SuperValu's Lesson: Always Be Building An FCA Defense

  

  The recent U.S. v. SuperValu decision confirming that scienter is an essential element of False Claims Act liability should motivate government contractors to prepare for allegations of material misrepresentation by building a record of their honorable efforts toward regulatory compliance, say David Resnicoff and Andrew Patton at Riley Safer.

• The Current State Of The AML Act, And Where We're Headed

  

  The slow implementation of the Anti-Money Laundering Act of 2020 has stalled its intended transformation even as some progress has been made, but financial institutions should still consider how the AMLA will ultimately affect them and stay engaged in the implementation process, says Daniel Stipano at Davis Polk.

• Justices' Retrial Ruling Will Be Key In Complex Venue Cases

  

  The U.S. Supreme Court’s recent Smith v. U.S. decision, holding that defendants first tried in an improper venue may be reprosecuted in a different jurisdiction, raises several issues for criminal cases involving complex venue questions, particularly those concerning the use of technology or products located in different districts, says Matthew Koerner at Perkins Coie.