The Second Circuit Court of Appeals recently issued a decision that may prevent the expansion of scheme liability under the federal securities laws. The SEC brought scheme liability allegations against Rio Tinto, its CEO, and its CFO, based on their alleged failure to correct prior materially misleading statements that had
Mark Harris is a partner in the Litigation Department, co-chair of the Appellate Practice Group, and a member of the Securities Litigation and White Collar Defense & Investigations Groups. He represents institutional and individual clients in both civil and criminal litigations.
Mark is a former clerk to U.S. Supreme Court Justices John Paul Stevens and Lewis Powell, Jr., and Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit. Mark subsequently served as an Assistant U.S. Attorney for the Southern District of New York, during which he prosecuted a broad spectrum of federal crimes, including health-care fraud, financial fraud, and corporate embezzlement, and tried a number of jury trials and argued before the Second Circuit.
Mark has handled dozens of cases in the U.S. Supreme Court and other appellate courts in a variety of areas spanning criminal law, patent, copyright, labor relations, and administrative law, including:
- Representing Biosig Instruments before the U.S. Supreme Court and the Federal Circuit, in a case that redefined the standard for patent definiteness and upheld the validity of Biosig’s patent. He was named The American Lawyer’s Litigator of the Week for that result.
Obtaining reversal of the trial conviction of a former Gen Re executive in the Second Circuit.
Persuading the Second Circuit via a petition for interlocutory review and merits brief to vacate a class-certification order entered against Sprint Corporation.
Successfully representing electronic publishers before the U.S. Supreme Court in Reed Elsevier Inc. v. Muchnick, which Managing Intellectual Property Magazine named the 2010 "U.S. Copyright Case of the Year."
Successfully representing an employer before the U.S. Supreme Court in 14 Penn Plaza LLC v. Pyett, which overturned 35 years of precedents concerning the enforceability of arbitration clauses in labor agreements.
Mark has handled numerous matters involving securities fraud, tax evasion, insurance fraud, and a variety of financial crimes. Significant representations have included the following:
- John and Timothy Rigas, principals of Adelphia Communications Corp., at their resentencing and before the Second Circuit.
The president of a major international company whom federal authorities sought to extradite for tax offenses allegedly committed in the United States.
The former CEO of Princeton Economics International, whose release Mark helped win from the longest term of federal civil contempt in U.S. history.
An investor charged with securities fraud involving the conversion of a mutual savings bank to a capital stock bank.
Since 1996, Mark has been a member of the Board of Editors of the Federal Sentencing Reporter and a frequent contributor. His work on behalf of non-U.S. clients was featured in the American Lawyer's 2006 Litigation supplement. He has lectured on both criminal law and appellate practice before the International Bar Association, the National Association of Criminal Defense Lawyers, PLI, and the ABA Sections of Litigation, Criminal Law, and Employment and Labor Law, and has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360, Legal Times, and other news organizations.
He also serves on the Board of Trustees of the National Museum of Mathematics.
Large-scale corporate data breaches have unfortunately become increasingly common events, posing a variety of challenges to the companies that suffer them. A few weeks ago, a district court in Georgia dismissed one of the first shareholder derivative actions that challenged the adequacy of a corporation’s data-breach prevention strategy. While that…
Mark Harris, a partner in Proskauer’s White Collar Defense and Investigations Group, recently spoke to Joe Mont at Compliance Week to discuss the U.S. Sentencing Commission’s proposed changes to the guidelines for punishment of white collar crime. Besides his ongoing focus on white collar sentencing in his legal practice, Harris serves as a member of the Board of Editors of the Federal Sentencing Reporter, and is a contributor to the leading treatise Practice Under the Federal Sentencing Guidelines.
As previously reported on this blog here and here, the United States Sentencing Commission has proposed amendments to the widely criticized federal sentencing guidelines for economic crimes. On April 9, 2015, after hearing extensive public comment on the proposed amendments, the Commission voted to adopt an amended version of the Sentencing Guidelines which will take effect November 1st absent objection by Congress.
The changes are significant but not sweeping. Commission Chair Judge Patti B. Saris described the revisions as addressing “some problem areas, particularly at the high end of the loss table.” Despite objections by the Department of Justice and others that some of the amendments will create unwarranted leniency in the guidelines, the final amendments largely parallel those first proposed by the Commission in January.
Meanwhile, members of the defense bar argued that the changes do not go far enough in departing from an abstract numerical approach (measured by dollars and number of victims) when attempting to gauge culpability. James Felman, a defense attorney who co-chairs the American Bar Association’s criminal justice section and testified before the Commission, characterized the amendments as a “very meager response” to the problems endemic in § 2B1.1 of the Sentencing Guidelines, promising that “[w]e’ll keep lobbying the commission to do more.”
As previously reported on this blog, the U.S. Sentencing Commission has proposed several amendments to the federal sentencing guidelines for economic crimes. The amendments are designed to address criticism that § 2B1.1 of the Guidelines is vague, that it treats defendants who have secondary roles with undue harshness, and that it suggests disproportionately severe sentences for first-time offenders.
On March 18, 2015, the Sentencing Commission heard commentary and reviewed letters in response to a request for public comment on the proposed amendments. The Department of Justice asserted a vigorous opposition to several of the proposals, on the ground that they would result in unwarranted leniency for white-collar offenders. The DOJ also objected to adjusting victim losses for inflation in sentencing calculations, stating that any reduction would be contrary to “overwhelming societal consensus.”
In recent years, a growing chorus of federal judges and defense attorneys have protested that the Federal Sentencing Guidelines for economic crimes regularly recommend inconsistent and unjust sentences. Critics claim that § 2B1.1 of the Guidelines suffers from a lack of clarity, that it treats defendants who have secondary roles in large schemes with undue harshness, and that it produces suggested prison terms that are disproportionately severe for first-time offenders who are not likely to reoffend. There is no dearth of examples to fuel those fires, as seemingly inconsistent outcomes abound. Last year, Judge Jed S. Rakoff of the Southern District of New York stated that “[the] arithmetic behind the sentencing calculations is all hocus-pocus —it’s nonsensical.”
Last week, the U.S. Sentencing Commission responded with proposed amendments to § 2B1.1 that are designed to remediate some of those shortcomings. The Sentencing Commission has also solicited input from interested parties on a broad range of associated issues. The relevant provisions up for amendment are: