White Collar Crime: Business and Regulatory Offenses

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Otto G. Obermaier, Robert G. Morvillo, Robert J. Anello, Barry A. Bohrer

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“A fundamental and essential addition to every practitioner's bookshelf.”
Stephen E. Kaufman, Former Chief of the Criminal Division,
U.S. Attorney's Office, Southern District of New York

White collar crime continues to make headlines. But many cases that may not make the headlines are just as important to you and your clients.

In White Collar Crime: Business and Regulatory Offenses, Otto G. Obermaier and Robert G. Morvillo have gathered a prestigious group of authors to counsel you on: criminal tax cases; securities fraud; RICO; mail and wire fraud; banking crimes; criminal antitrust actions; bribery and extortion; conspiracy; entrapment and government overreaching; government contract fraud; grand jury practice; perjury and false declarations; and general principles governing the criminal liability of corporations, their employees and officers.

White Collar Crime: Business and Regulatory Offenses also features a discussion of computer crime, including provisions of the Electronic Communications Privacy Act and the creation of Computer Hacking and Intellectual Property Squads designed to combat copyright theft, computer fraud and hacking. There is also valuable information on forfeiture; the Computer Fraud and Abuse Act; and the Supreme Court's interpretation of the standard of “gross proportionality” as it applies to violations of the Eighth Amendment's “excessive fines” clause.

Book #00610; looseleaf, two volumes, 1,790 pages; published in 1990, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-049-4

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  • Otto G. Obermaier

Mr. Obermaier is a principal in Martin & Obermaier, LLC with retired District Court Judge John S. Martin, Jr. He served as United States Attorney for the Southern District of New York from 1989 to 1993.

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  • Robert G. Morvillo

Mr. Morvillo (deceased) was a principal in the New York firm of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C.

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  • Robert J. Anello

Mr. Anello, a principal in the law firm of Morvillo Abramowitz Grand Iason & Anello PC, has litigated in the federal and state courts for more than thirty years. He focuses his practice on white collar criminal defense, regulatory enforcement matters, complex civil litigation, internal investigations and reviews, and appeals. Mr. Anello has been named a leading lawyer by Chambers USA: America's Leading Lawyers for Business in the area of Litigation:White Collar Crime & Government Investigations. His white collar practice involves representing defendants charged with a wide range of business crimes,regulatory and tax violations, and civil frauds. His clients include individuals and public and private companies such as financial institutions, Fortune 500 companies, defense contractors, and law firms. Mr.Anello is widely recognized for his dedication to organizations serving the legal community. He currently serves as President of the Federal Bar Council,as a Fellow of the American College of Trial Lawyers, and as a Fellow of the American Bar Foundation and the New York State Bar Foundation. Mr. Anello is an author of the White Collar Crime column for the New York Law Journal and is a regular contributor to The Insider Blog on He is a frequent contributor to numerous other publications and a speaker on topics in the areas of white collar criminal law, securities law, professional ethics, and trial tactics. He also serves on the Litigation Advisory Board of Bloomberg BNA, one of the leading sources of legal, regulatory, and business information. Mr. Anello received his law degree with magna cum laude honors from Syracuse University College of Law, where he was a member of the Order of the Coif and was the Staff Editor and Notes and Comments Editor of the Syracuse Law Review. Mr. Anello received his undergraduate degree from SUNY-Albany.

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  • Barry A. Bohrer

Mr. Bohrer, a partner in Schulte Roth & Zabel’s New York office, has extensive litigation experience handling white collar criminal and complex civil matters in federal and state courts for individual and corporate clients. Barry has successfully defended clients, including major corporations, financial institutions, political figures, corporate executives and individuals, professionals, and prominent law firms, in a wide variety of high-profile and complex cases, jury trials, regulatory actions, and investigations. He regularly represents clients in matters pertaining to securities and commodities litigation and regulatory enforcement; other forms of financial fraud; antitrust litigation; and allegations of environmental offenses. In his appellate practice, Barry has won appeals at all levels of the federal and state court systems throughout the nation, and is retained in high-stakes appellate cases where he is brought in by other legal teams specifically for his appellate proficiency. In addition to Benchmark Litigation, Barry has been recognized as a leading lawyer by Chambers USA: America’s Leading Lawyers for Business, The International Who’s Who of Investigations Lawyers and The Legal 500 United States. He was the author of the “White Collar Crime” column in the New York Law Journal from 2002 – 2013 and is on the Board of Editors of the White Collar Crime Reporter. His recent publications include “The Right of the People to Be Secure in Their Digital Papers,” published in Bloomberg BNA Privacy and Security Law Report, and “The Reporter’s Privilege in New York: A Protected Class,” a chapter in Inside the Minds: New Developments in Evidentiary Law in New York, published by Thomson Reuters/Aspatore. Barry is a Fellow of the American College of Trial Lawyers, former President of the New York Council of Defense Lawyers, and Chair of the Executive Committee of the Fund for Modern Courts and Committee for Modern Courts, non-profit organizations dedicated to judicial reform in New York State. He served on the Board of Directors of the Legal Aid Society (Chairman of the Audit Committee) and received awards in 2005 and 2006 for Outstanding Pro Bono Service for his advocacy. He received his J.D. from New York University School of Law and his B.A. from Duke University.

Volume 1

Defending the Criminal Antitrust Action

§ 1.01 The Elements of an Offense
§ 1.02 Defending a Criminal Antitrust Action: The Pre-Indictment Stage
[1] The Civil Investigation as Prelude
[2] The Grand Jury Investigation
[3] Prosecutorial Discretion
[4] The Corporate Amnesty Program
§ 1.03 Pre-Trial Motions
[1] Defects in the Initiation of the Prosecution
[2] Motion for Bill of Particulars
[3] Motion to Change Venue
[4] Motion for Severance
[5] Evidentiary Motions
§ 1.04 Pleas and Plea Bargaining
§ 1.05 Multiple Representation
§ 1.06 Sentencing
[1] Federal Sentencing Guidelines
[2] Alternative Sentencing
[3] Corporate Sentencing

Banking Crimes

§ 2.01 Introduction
§ 2.02 The Bank Secrecy Act
[1] An Outline of the CTR Filing Requirements
[2] Penalties for CTR Filing Violations
[3] Criminal Prosecution of CTR Filing Violations
[4] SAR Filing Requirements
§ 2.03 Bank Bribery
[1] The Statute
[2] The History of the Current Statute
[3] Cases Applying the Statute
[4] Administrative Guidelines
§ 2.04 Misapplication
[1] Misapplication v. Embezzlement
[2] Elements of Misapplication—Illustrative Cases
§ 2.05 False Entries in Bank Records and Reports and Unlawful Participation
[1] False Entry
[2] Entry Made or Caused by the Defendant
[3] Intent to Injure or Defraud
[4] Bank’s Deposits Were Federally Insured
[5] Unlawful Participation
§ 2.06 False Loan and Credit Applications
[1] Elements of the Offense
[2] Cases Applying the Statute
§ 2.07 Mail and Wire Fraud
[1] Mailing of Bank Statements
[2] Fictitious Banks
[3] Credit Cards
§ 2.08 Bank Fraud
[1] Scope of Statute
[2] General Principles of Interpretation
[3] Cases Applying the Statute
§ 2.09 The Banking Crimes Defined by the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and the 1990 Crime Control Act
[1] Wrongful Disclosure of Information Pertaining to a Subpoena for Financial Information
[2] Concealment of Assets From a Receiver
[3] Obstructing a Bank Examiner
[4] Operating a Continuing Financial Crimes Enterprise

Money Laundering

§ 2A.01 Introduction
§ 2A.02 Domestic and International Money Laundering: 18 U.S.C. § 1956
[1] Section 1956(a)(1): Domestic Money Laundering
[2] Section 1956(a)(2): International Money Laundering
[3] Section 1956(a)(3): Sting Operations
[4] Penalties
[5] 31 U.S.C. § 5332. Bulk Cash Smuggling Into or Out of the United States
§ 2A.03 Engaging in Monetary Transactions In PropertyDerived From Specified Unlawful Activity: 18 U.S.C. § 1957
[1] The First Element: The Defendant Engaged or Attempted to Engage
[2] The Second Element: In a Monetary Transaction
[3] The Third Element: Involving Criminally Derived Property
[4] The Fourth Element: With the Property in Fact Having Been Derived from Specified Unlawful Activity
[5] Penalties
§ 2A.04 Selected Issues Common to Sections 1956 and 1957
[1] Extraterritorial Jurisdiction
[2] Venue
[3] Constitutional Challenges
§ 2A.05 Attorneys’ Fees
[1] The Limited Statutory Exception for Attorney’s Fees
[2] The Scope of the Exception
[3] Department of Justice Guidelines
[4] The Need for Congressional Action

The Federal Law of Bribery and Extortion

§ 3.01 Introduction
§ 3.02 The Federal Statutory Framework
[1] 18 U.S.C. § 201: Bribery of Public Officials and Witnesses
[2] 18 U.S.C. § 666: Federal Program Bribery
[3] 18 U.S.C. § 1951: The Hobbs Act
[4] The Travel Act: 18 U.S.C. § 1952
[5] Deprivation of the Intangible Right to Honest Services: 18 U.S.C. § 1346
[6] The Foreign Corrupt Practices Act: 15 U.S.C. § 78dd-1, 2, 3
§ 3.02A Constitutional Framework
[1] Article I, Section 9, Cl. 8: The Foreign Emoluments Clause
§ 3.03 Sentencing Guidelines
§ 3.04 Conclusion

Defending Charges of Conspiracy

§ 4.01 Introduction
§ 4.02 Basic Principles of the Law of Conspiracy
[1] The Nature of the Crime of Conspiracy and Its Corollaries
[2] Statutes Involved
[3] Requirements of the Indictment
[4] Overt Acts
[5] Venue
[6] The Required Plurality
[7] Joinder
[a] “Wheel-Spoke” and “Chain” Conspiracies
[8] Single and Multiple Conspiracies
[9] Intent
[10] Evidence Admissible to Prove the Conspiracy
[11] Statute of Limitations
[12] Duration, Termination, and Withdrawal
[13] Conspirator’s Liability for Substantive Crimes (The Pinkerton Doctrine)
[14] Merger, Prior Adjudications, and Sentencing
§ 4.03 Techniques
[1] Introduction
[2] Pre-Trial Techniques
[3] Trial Techniques
§ 4.04 Conclusion

General Principles Governing the Criminal Liability of Corporations, Their Employees and Officers

§ 5.01 Introduction
§ 5.02 The Modern Acceptance of Entity Criminal Liability
§ 5.03 The Development of Corporate Criminal Liability Rules
[1] The Black Letter Law Rule
[2] Criticism of the Black Letter Rule
[3] Corporate Compliance Programs
[4] Developing a Second Track: The Organization as Actor
§ 5.04 The Liability of Corporate Employees and Officers
[1] The General Issues: Responsibility and Intent
[2] Managerial Liability
[3] Subordinate Liability
§ 5.05 Prosecutorial Policies
[1] Introduction: Principles of Federal Prosecution of Business Organizations
[2] The Use of Non-Prosecution and Deferred Prosecution Agreements
[3] Special Problems of Internal Corporate Investigations
§ 5.06 Conclusion

The Law of Entrapment and Governmental Overreaching

§ 6.01 Introduction
§ 6.02 Development of Entrapment Law
[1] Common Law
[2] United States Development
[3] Entrapment: Subjective Versus Objective Theories
§ 6.03 Subjective Entrapment
[1] The Elements and Burdens
[2] Vicarious/Derivative Entrapment
[3] Inconsistent Defenses
[4] Entrapment by Estoppel§ 6.04 Objective Entrapment: Government Overreaching
[1] Nature of the Defense
[2] Question of Law
[3] Sex as an Inducement
§ 6.05 Due Process and Related Considerations
[1] Sting Operations
[2] Prosecutor Involvement
[3] Contingency Fee Informers
[4] Sentence Entrapment
[5] Entrapment and Terrorism
[6] Cyberspace: The New Frontier
§ 6.06 Practitioner’s Corner
[1] Discovery Materials
[2] Guidance on Entrapment as an Alternative Defense
[3] Motions for Judgment of Acquittal or Post-Verdict Raising Entrapment
[4] Jury Instructions
§ 6.07 Conclusion

Civil and Criminal Forfeitures

§ 6A.01 Introduction
§ 6A.02 Federal in Rem Seizures, Restraints, and Forfeitures of Private Property
[1] In Rem Forfeiture Statutes
[2] Statutory Procedures for Seizing Property in Rem
[3] The Scope of Property Subject to Seizure and Forfeiture in Rem
[4] Stays of in Rem Proceedings
[5] Assistance of Counsel for in Rem Proceedings
[6] Post-Judgment Awards of Attorney Fees for and Fines Against Claimants
[7] Department of Justice Rules on Remission or Mitigation
[8] Statute of Limitations for in Rem Proceedings
§ 6A.03 Federal Criminal Seizures, Restraints, and Forfeitures of Private Property
[1] Criminal Forfeiture Statutes
[2] Statutory Procedures for Restraining Property
[3] The Scope of Property Subject to Restraint
§ 6A.04 Third-Party Interests
[1] Asserting Third-Party Claims in Criminal Proceedings
[2] The “Innocent Owner” Defense for in Rem Claims
[3] Ownership of Partial Interests
[4] Rights of Relief Defendants
[5] Civil Forfeitures Applied to Foreign Banks Under the Patriot Act
§ 6A.05 Extraterritorial Application of Forfeiture Laws
§ 6A.06 Constitutional Issues
[1] Procedural Due Process
[2] Substantive Due Process
[3] Taking Without Just Compensation
[4] The Eighth Amendment
[5] Double Jeopardy
[6] The Fourth Amendment
[7] The Seventh Amendment Jury Trial Right
[8] Inapplicability of the Sixth Amendment Jury Trial Right to Forfeitures

Government Contract Fraud: Understanding and Mitigating the Risk

§ 7.01 Introduction
§ 7.02 How Contract Fraud Happens
[1] Fraud Offenses
[2] Fraud in the Contracting Stages
§ 7.03 The Arsenal of Government Remedies
[1] Criminal Proceedings
[2] Civil Proceedings
[3] Administrative Suspension and Debarment Proceedings
[4] Simultaneous Proceedings
§ 7.04 Preventive and Responsive Measures
[1] Before the Government Investigates
[2] Response to an Investigation

Grand Jury Practice

§ 8.01 Introduction
§ 8.02 Composition of the Grand Jury
[1] In General
[2] Objections to Composition
§ 8.03 Grand Jury Secrecy
[1] In General
[2] Court Orders Requiring Witnesses to Keep Their Testimony Secret
[3] Disclosure of Grand Jury Material
[4] Impermissible Disclosure of Grant Jury Matters
§ 8.04 Rights and Privileges of Grand Jury Witnesses
[1] Fifth Amendment Privilege
[2] Attorney-Client Privilege and Attorney Work Product
[3] Joint Defense Privilege
[4] Previously Issued Protective Orders
[5] Other Privileges
§ 8.05 Subpoenas to Attorneys
[1] Attorney-Client Privilege
[2] Attorney Work Product
[3] Relevance and Necessity
[4] Sixth Amendment
§ 8.06 Objections to the Grand Jury Process
[1] Indictments Based on Hearsay
[2] Illegal Search and Seizure
[3] Indictments Based on Perjury
[4] Failure to Disclose Exculpatory Evidence
[5] Use of Grand Jury to Gather Evidence for Already Pending Indictment
[6] Grand Jury Subpoenas Duces Tecum and Ad Testificandum
[7] Quorum Requirement
[8] Prosecutorial Misconduct
§ 8.07 Testifying Before the Grand Jury
[1] Preparation
[2] Testifying
[3] Memorializing the Testimony

The Federalization of Fraud: Mail and Wire Fraud Statutes

§ 9.01 Introduction
§ 9.02 The Elements of the Crime
[1] The Meaning of “Scheme to Defraud”
[2] The Jurisdictional Means
§ 9.03 Intent to Defraud
§ 9.04 Defenses and Tactics
[1] The Good Faith Defense
[2] Puffing
[3] Lack of Authority
[4] Constructive Frauds
[5] Statute of Limitations
[6] Preemption
[7] Tactics: Injunctions and Discovery
§ 9.05 Conclusion

Volume 2

Crimes of Dishonesty: Perjury, False Statement and Obstruction of Justice

§ 10.01 Perjury: The Cover-Up That Is the Crime
[1] Introduction
[2] Background
[3] Subornation of Perjury (18 U.S.C. § 1622)
[4] Elements of Sections 1621 and 1623 
[5] Implications of Immunity
[6] Defenses
[7] Sentencing Implications
[8] Ethical Considerations
[9] Counsel for Counselors
§ 10.02 False Statements
[1] Introduction
[2] Background
[3] Elements
[4] Defenses
[5] Statute of Limitations
[6] Venue
[7] Sentencing
[8] Other False Statement Statutes
[9] Advising Clients
§ 10.03 Obstruction of Justice
[1] Statutory Scheme 
[2] Interplay of Obstruction Statutes
[3] Guidelines Enhancement for Obstruction
[4] Collateral Consequences
[5] Advising Clients

Racketeer Influenced and Corrupt Organizations (RICO)

§ 11.01 Introduction
§ 11.02 The RICO Statute
§ 11.03 Applicability to White Collar Offenses
§ 11.04 Elements of the RICO Offense
[1] The Existence of an Enterprise
[2] The Effect of the Enterprise on Commerce
[3] Defendants’ Commission of Predicate Acts
[4] The Acts Must Constitute a Pattern of Racketeering Activity
[5] Actions Prohibited by RICO
§ 11.05 Criminal Forfeiture
§ 11.06 Forfeiture of Attorney’s Fees
§ 11.07 The Federal Government’s Use of the Civil RICO Provisions
[1] The Difference Between Criminal RICO and Civil RICO
[2] The Difference Between Private Civil RICO Litigation and Civil RICO Actions Brought by the Government
[3] Civil Remedies Available for the Federal Government
[4] Civil RICO Suits Brought by the Federal Government
§ 11.08 Conclusion

Securities Fraud

§ 12.01 Introduction
§ 12.02 Federal Criminal Securities Fraud Investigations and Trials
[1] The Federal Statutory Framework Governing Criminal Offenses
[2] Representative Securities Fraud Prosecutions
[3] Defending Securities Fraud Cases
§ 12.03 SEC Investigations and Enforcement Actions
[1] Overview of Securities and Exchange Commission Investigations and Enforcement Actions
[2] The Interplay Between Civil and Criminal Investigations and the Criminal Reference Process
§ 12.04 Enforcement by Self-Regulatory Organizations
[1] In General
[2] FINRA Investigations
§ 12.05 Overview of Criminal Securities Fraud Laws in New York, Illinois, and California
[1] New York: The Martin Act
[2] Illinois Securities Law of 1953
[3] California Corporate Securities Law of 1968

Insider Trading

§ 12A.01 Introduction
§ 12A.02 The Applicable Statutes and Rules
§ 12A.03 Judicial Interpretations of Section 10(b) and Rule 10b-5
[1] Classical Theory
[2] Misappropriation Theory
§ 12A.04 SEC Rules 10b5-1 and 10b5-2
[1] Rule 10b5-1
[2] Rule 10b5-2
§ 12A.05 Tippee Liability
§ 12A.06 Civil Liability
§ 12A.07 Criminal and Civil Penalties
[1] Criminal Penalties
[2] Civil Penalties
§ 12A.08 Private Right of Action
§ 12A.09 Pending Insider Trading Legislation

Criminal Tax Cases

§ 13.01 Introduction
§ 13.02 Tax Evasion
[1] Elements
[2] Defenses to Tax Evasion
§ 13.03 False Statements
§ 13.04 Failure to File a Return, Supply Information, or Pay a Tax
§ 13.05 Corrupt or Forcible Interference with IRS
§ 13.06 Other Tax Crimes
[1] Tax Crimes and Mail Fraud and Wire Fraud
[2] Conspiracies Under 18 U.S.C. § 371
§ 13.07 Criminal Tax Investigations
[1] CID and DOJ
[2] Kovel and Attorney-Client Privilege
[3] IRS’s Summons Power
[4] Voluntary Disclosure
§ 13.08 Statutes of Limitations
§ 13.09 Venue
§ 13.10 Collateral Estoppel and the Civil Fraud Penalty
§ 13.11 Double Jeopardy
§ 13.12 Forfeiture
§ 13.13 Conclusion

Environmental Crimes

§ 14.01 Introduction
§ 14.02 Enforcement Offices
§ 14.03 Federal Statutes
[1] Overview
[2] General Behavior Proscribed
§ 14.04 Case Selection Criteria
§ 14.05 Potential Defendants
[1] Officers and Directors
[2] Supervisory Employees
[3] Corporations
§ 14.06 Mens Rea
[1] Scienter and the Elements of an Offense
[2] Proof of Knowledge
[3] Negligent Violations
§ 14.07 General Federal Criminal Provisions
[1] RICO Implications
[2] False Statements
[3] The Sarbanes-Oxley Act Implications
§ 14.08 Crime Victims Rights Act Implications
§ 14.09 Collateral Consequences of a Conviction—Debarment
§ 14.10 State Environment Statutes
[1] Hazardous Wastes
[2] Water Pollution
[3] Air Pollution
§ 14.11 Potential Defenses
[1] Constitutional Defenses
§ 14.12 Compliance Programs and Voluntary Disclosure
[1] Compliance Programs
[2] Voluntary Disclosure
§ 14.13 Internal Investigations

Corporate Sentencing Under the Federal Guidelines

§ 15.01 Overview: The Evolving Law of Sentencing and the Role of Corporate Counsel
§ 15.02 Underlying Theories of Corporate Liability and Sanctions
§ 15.03 Corporate Sentencing Prior to the Organizational Guidelines
[1] Fines
[2] “Corporate Probation”
[3] Corporate Probation in the Shadow of the Guidelines
§ 15.04 The Sentencing Reform Act, The Sentencing Commission, and the Guidelines
[1] Introduction
[2] The Guidelines
[3] The Guidelines in the Supreme Court
[4] The Statutory Scheme of the Sentencing Reform Act: Available Corporate Sentences
§ 15.05 The Sentencing Commission and Its Early Proposals for Organizational Guidelines
§ 15.06 The Organizational Guidelines
[1] When the Guidelines Are Applicable
[2] Restitution, Remedial Orders, Community Service, Orders of Notice to Victims
[3] Determining the Fine
[4] Probation
[5] Special Assessments, Forfeitures, and Costs
§ 15.07 Offenses not Solely Within the Organizational Fine Guidelines
[1] Antitrust Convictions
[2] Bribery Convictions and Related Offenses
[3] Other Offenses Not Covered Under Section 8C2.1

The Foreign Corrupt Practices Act

§ 16.01 Introduction
§ 16.02 The Anti-Bribery Provisions
[1] The Basic Prohibition
[2] Payments to Agents or Third Parties
[3] Definitions
[4] Affirmative Defenses and Exception
[5] Regulator Guidance
[6] Enforcement of the Anti-Bribery Provisions
[7] Charitable Contributions
[8] Minority-Held Subsidiaries and Other Entities
[9] DOJ Proceedings
[10] SEC Enforcement
[11] Alternative Statutes for Prosecuting Conduct Related to Foreign Bribery
§ 16.03 The Accounting Provisions
[1] SEC Chairman Williams’ January 13, 1981 Speech
[2] The 1988 Amendments to the Accounting Provisions
[3] SEC Regulations Regarding the Accounting Provisions
[4] Exception for National Security
[5] Enforcement of the Accounting Provisions
§ 16.04 Compliance Programs
[1] Compliance Programs
[2] Third Parties, Intermediaries, Agents and Representatives
§ 16.05 Conclusion

The Joint Defense Agreement

§ 17.01 Introduction
§ 17.02 The Joint Defense Privilege Defined
§ 17.03 Government Challenges
[1] Challenges to the Existence of the Agreement
[2] Motions to Compel Production of Certain Communications/Documents
[3] Motions for Production of the Agreement
[4] Motions to Disqualify Counsel
§ 17.04 Advantages of a Written Agreement
§ 17.04A Dangers of Non-Disclosure of Conflict
§ 17.05 Elements of a Joint Defense Agreement
[1] The Parties Share Common Issues and Interests
[2] The Purpose of the Agreement Is to Promote Effective Representation
[3] All Shared Communications, Documents and Memoranda Fall Within the Attorney Client and Work Product Privileges
[4] Both the Attorney and the Client Are Covered by the Agreement
[5] The Material Shared May Not Be Disclosed to Others Outside the Agreement
[6] Materials Shared May Be Used Only by Counsel to Prepare a Defense in the Current Investigation or Any Related Future Investigation
[7] Disclosure Requires the Consent of the Supplying Parties
[8] While Good Faith Sharing of Information Is Desirable, Each Lawyer’s Obligations to His or Her Own Client May Prevent the Sharing of All Information
[9] Agreement Not to Utilize Documents or Waive the Privilege in Future Civil Actions
[10] Specific Remedies to Enforce Confidentiality
[11] Procedures for Withdrawal from the Agreement and Return of Documents
[12] Should One Party Agree to Plead, No Disclosure without Written Permission
[13] Should One Party Agree to Cooperate, No Conflict of Interest Is Created That Would Result in the Disqualification of Any Attorney
[14] Counsel Is Not Limited from Disclosing Documents Obtained from His Own Client or Independently of the Agreement
[15] Demands by the Government for Any Joint Defense Materials Must Be Immediately Communicated to All Counsel
[16] The Agreement Does Not Affect Independent and Separate Representation of Each Client
[17] The Duty of Loyalty Is Limited to Each Attorney’s Individual Client
[18] Provision for Return or Disposal of Documents Once the Matter Is Concluded
[19] Amendments Must Be in Writing, Unanimously Approved
§ 17.06 Sample Agreements
[1] Confirmation of Agreement Regarding Confidentiality of Joint Defense Information
[2] Joint Agreement Among Counsel for Parties with Common Defense
[3] Joint Defense Agreement
§ 17.07 Conclusion


Health Care Fraud and Abuse

§ 19.01 Introduction
§ 19.02 Criminal and Civil False Claims Liability
[1] False Statement or Representations Involving Federal Health Care Payors (42 U.S.C. § 1320a-7b(a))
[2] False Statements (18 U.S.C. § 1001)
[3] The Criminal False Claims Act (18 U.S.C. § 287)
[4] The Civil False Claims Act (31 U.S.C. § 3729)
§ 19.03 The Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b))
[1] Overview: Elements of the Offense
[2] Case Law Developments
[3] Statutory and Regulatory Developments
§ 19.04 Civil Money Penalties and Exclusion
[1] Civil Money Penalties (42 U.S.C. § 1320a-7a)
[2] Mandatory Exclusion (42 U.S.C. § 1320a-7(a))
[3] Permissive Exclusion (42 U.S.C. § 1320a-7(b))
[4] Overpayments

Chapter 20

Chapter 21
Computer Crime in the 21st Century

§ 21.01 Introduction
[1] What Is Computer Crime?
[2] How Frequent Is Computer Crime?
§ 21.02 Government Response to Computer Crime
[1] Government Agencies
§ 21.03 Computer Fraud and Abuse Act—18 U.S.C. § 1030
[1] Background and Key Definitions
[2] Substantive Prohibitions—18 U.S.C. § 1030(a)
§ 21.04 Electronic Communications Privacy Act
[1] Introduction to the ECPA
[2] Interception of Communications Versus Retrieval of Stored Electronic Communications
[3] Interception of Electronic Communications
[4] Unlawful Access of Stored Electronic Communications—18 U.S.C. § 2701 et seq.
[5] Voluntary Disclosure of the Contents of Electronic Communications
[6] Required Disclosure of the Contents of Electronic Communications to Government Entities
[7] Disclosure of Informational Records Concerning Stored Electronic Communications
[8] Private Rights of Action and Limitation of Liability for the Disclosure of Information
[9] Proposed Amendment to the ECPA
§ 21.05 Other Statutes
[1] Economic Espionage Act
[2] Defend Trade Secrets Act
[3] National Stolen Property Act
[4] Mail and Wire Fraud
[5] State Laws
§ 21.06 Second Circuit Case Law Illustration of the Economic Espionage Act, the National Stolen Property Act and the Computer Fraud and Abuse Act

Copyright Infringement, Trademark Counterfeiting and Intellectual Property Crime

§ 22.01 Introduction
[1] Trademark Overview
[2] Copyright Overview
§ 22.02 State Statutes
§ 22.03 The Trademark Counterfeiting Act
[1] The Elements
[2] Proof Not Required
[3] Defenses
[4] Jury Instructions
[5] Penalties
[6] Trademark Counterfeiting and Other Criminal Statutes
§ 22.04 Criminal Copyright Infringement—Introduction
§ 22.05 Criminal Copyright Infringement
[1] The Elements
[2] Defenses—Generally
[3] Jury Instructions
[4] Penalties
[5] Copyright Infringement and Other Criminal Statutes
§ 22.06 Pseudo-Copyright Statutes
[1] Trafficking in Counterfeit Labels, Illicit Labels, or Computer Program Documentation or Packaging
[2] Unauthorized Fixation of and Trafficking in Sound Recordings and Music Videos of Live Performances
[3] Digital Millenium Copyright Act
[4] Fraudulent Copyright Notice and Removal of Such Notices
[5] False Representation in Application to Register Copyright