Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: White Collar

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Expanding FSIA to Criminal Cases Would Not Save a Turkish Bank from U.S. Prosecution, Holds the Second Circuit

The Second Circuit recently held that a denial of a motion to dismiss a criminal indictment based on the Foreign Sovereign Immunities Act (“FSIA”) is immediately appealable under the collateral-order doctrine but concluded that even if FSIA did provide immunity from criminal prosecutions, that immunity would not extend to a foreign sovereign’s or its instrumentality’s … Continue Reading

Disgorgement Continues at the SEC

On October 12, 2021, the Fifth Circuit Court of Appeals upheld a disgorgement order issued by the SEC, in—according to the opinion— the first appellate ruling on the topic since the Supreme Court’s 2020 decision in Liu v. SEC. Commercial litigators involved in securities disputes should take note that parallel actions with the SEC can still result in … Continue Reading

The FTC’s Enforcement Power: How AMG Reshapes the Landscape

In a unanimous opinion, the U.S. Supreme Court held that Section 13(b) of the FTC Act does not authorize the Federal Trade Commission to seek monetary relief in the form of restitution or disgorgement, despite the agency’s redoubled practice of seeking such relief under the Act since 2012. The Court’s opinion significantly reshapes the FTC’s … Continue Reading

No Hearing? No Money: Second Circuit Holds the Government May Not Keep Illegally Seized Rent

The Second Circuit has recently held that the Government must account for rental income it denied a property owner during a period of illegal seizure even though the Government was able to establish probable cause at a post-seizure hearing.  The appeal stemmed from a decades-long sanctions and civil forfeiture action in which the U.S. Department … Continue Reading

Professional Relators Under False Claims Act Find No Friends in Federal Government or Seventh Circuit

Qui tam cases in American jurisprudence rely on a simple premise: help prevent nefarious actors from defrauding the government and Uncle Sam will compensate you for your efforts. With its roots in English law, the American version was adopted during the Civil War in light of alleged fraud by federal contractors skirting the proper procurement … Continue Reading

Divided Supreme Court Rules that State Jury Verdicts for Serious Crimes Must Be Unanimous

On April 20, 2020, the Supreme Court held in a 6-3 decision that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a serious offense in state courts. In so holding, the Court not only paved the way for potentially hundreds of defendants convicted by divided juries, like petitioner Evangelisto Ramos, … Continue Reading

Takeaways from Recent Remarks on the DOJ Antitrust Leniency Program

In February 2020, at the 13th International Cartel Workshop, Deputy Assistant Attorney General (DAAG) Powers provided some insight as to the DOJ’s current views about the Antitrust Division’s Leniency Program. The headline: no major changes; but there are a few interesting takeaways, which we offer below.… Continue Reading
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