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Mark Harris

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Mark Harris is head of the White Collar Defense & Investigations Group and co-head of the Appellate Group. Mark is also a former federal prosecutor and law clerk at the U.S. Supreme Court. An experienced white-collar criminal defense lawyer, he represents companies and individuals in their most complex and difficult litigation matters.

Mark’s appellate cases span the gamut from intellectual property and labor relations to constitutional law and administrative law. Since 2017, Mark has represented the Financial Oversight and Management Board for Puerto Rico—the entity created by Congress to oversee Puerto Rico’s bankruptcy, the largest in American history—in dozens of appeals before the U.S. Court of Appeals for the First Circuit. In May 2023, he prevailed before the Supreme Court in an 8-1 decision that recognized the Board’s immunity from suit. He is a Fellow of the American Academy of Appellate Lawyers and a past American Lawyer Litigator of the Week.

Mark also maintains an active criminal docket in cases covering every form of financial crime and civil enforcement, including internal investigations. Clients draw on his experience as a former Assistant U.S. Attorney for the Southern District of New York, where he specialized in fraud cases and tried cases before federal juries. Mark is also a recognized expert on criminal sentencing, as a member of the Board of Editors of the Federal Sentencing Reporter, the leading legal journal devoted to the study of sentencing law and policy, for over 25 years.

Mark is the editor and lead author of Principles of Appellate Litigation: A Guide to Modern Practice (PLI Press), a comprehensive treatise on appellate practice, updated every year, which has been described as “invaluable,” “the product of deep experience and keen insights,” and “a superior appellate practice hornbook.”

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. Mark has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360, Legal Times, and other news organizations.

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. He is a graduate of Harvard College and Harvard Law School, where he was a member of the Harvard Law Review. He also serves on the Board of Trustees of the National Museum of Mathematics.

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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.

sentencing-commissionAs 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.”

ThinkstockPhotos-462759715As 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: