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'Loss' in the Air Will Not Do
'Loss' under ' 2B1.1 of the U.S. Sentencing Guidelines is a pivotal sentencing issue in many federal fraud cases. In securities fraud, if the sentencing judge finds that the victims collectively suffered losses over $2.5 million, this alone can generate a sentence of five years in prison for a client with no criminal record. Over $400 million in losses can increase a sentence by almost two decades. However, sky-high loss enhancements are increasingly scrutinized in a post-Booker world. Drawing on civil securities law, recent decisions in several circuits endorse an approach holding a defendant responsible for only the portion of victims' losses that was proximately caused by the offense. Although stratospheric sentences in cases like WorldCom and Enron may not be past history, some courts' critical analyses bode well for future sentencings.
Arguing Loss at Sentencing Proceedings
As the Supreme Court noted in Gall v. United States, 128 S. Ct. 586, 596 (2007), a lower advisory Guideline means a lower 'starting point' or 'initial benchmark' for determining a sentence. In securities fraud cases, many factors often contribute to investors' losses. This creates opportunities for lower loss adjustments than those based on gross losses. This is particularly true in complex cases and in cases where events occurred during a volatile market, adverse economic conditions affected a stock's price, victims were sophisticated speculators, or a fraud involved multiple stocks or those with substantial residual value after the dust from a scheme settled ' in sum, where any extrinsic factors that contributed to victims' losses might be carved out to reduce loss for sentencing purposes.
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?