Category Archives: U.S. Supreme Court (SCOTUS)

Recent Developments in the Law of Federal Property Fraud: It’s a Long and Winding Road

by James Joseph Benjamin Jr., Katherine R. Goldstein, Michael A. Asaro, and Parvin Daphne Moyne 

Left to right: James Joseph Benjamin Jr., Katherine R. Goldstein, Michael A. Asaro, and Parvin Daphne Moyne (photos courtesy of Akin Gump Strauss Hauer & Feld LLP)

In two recent high-profile decisions, Chastain v. United States and Johnson v. United States, the U.S. Court of Appeals for the Second Circuit reversed wire fraud convictions that were based on theories resembling insider trading.[1] In both cases, the government invoked the wire fraud statute, and not a securities fraud statute, because the products at issue (non-fungible tokens and spot foreign currency) were not securities. These cases mark the latest developments in a long-running, ongoing and sometimes head-spinning debate in the courts concerning the breadth of the federal property fraud statutes.

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Second Circuit Reinstates FIFA Bribery Convictions, Reviving Honest Services Fraud Prosecutions for Foreign Commercial Bribery

by David A. Last, Rahul Mukhi, Victor L. Hou, Lisa Vicens, Matthew M. Yelovich, and Sarah Pyun

From left to right:  David A. Last, Rahul Mukhi, Victor L. Hou, Lisa Vicens, Matthew M. Yelovich, and Sarah Pyun (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

In a significant decision with broad implications for companies and individuals operating internationally, the U.S. Court of Appeals for the Second Circuit has reversed the acquittal of a former media executive and a sports marketing company in the long-running FIFA bribery investigation.[1]  The ruling reinstates jury convictions for honest services wire fraud and money laundering conspiracy, holding that the federal honest services fraud statute, 18 U.S.C. § 1346, can apply to foreign commercial bribery schemes.[2]

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Experts Discuss the Implications of the Supreme Court’s Recent Expansion of Federal Fraud Liability

Editor’s Note: PCCE has been following the Supreme Court’s recent decision in Kousisis v. United States, which, unlike recent cases narrowing the scope of white collar crimes, appears to have expanded the reach of the federal mail and wire fraud statutes. In this post, PCCE invited leading white collar practitioners to discuss the implications of the Court’s decision.

Photos of the authors

Left to right: Robertston Park, Alexandra Marinzel, Helen Cantwell, Winston Paes, and Mark Krotoski (photos courtesy of the authors)

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Supreme Court Rejects Heightened Test for “Reverse Discrimination” Claims Under Title VII

by Matthew M. Yelovich, Jennifer Kennedy Park, Christopher R. Kavanaugh, and Ethan Singer

From left to right: Matthew M. Yelovich, Jennifer Kennedy Park, Christopher R. Kavanaugh, and Ethan Singer (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

On June 5, 2025, the Supreme Court unanimously ruled in Ames v. Ohio Department of Youth Services that plaintiffs who belong to a majority group do not face a heightened burden to establish a disparate treatment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Court’s holding resolves a significant circuit split and affirms that Title VII’s protections apply equally to all individuals. This decision arrives as the Trump Administration has launched significant new initiatives to bring Title VII and civil rights investigations and claims against employers with diversity, equity, and inclusion (“DEI”) programs that the Administration views as unlawful. In light of this decision and the various DEI-related Executive Orders, employers should consider the following:

  • Employers should continue to carefully scrutinize human resource related programs that consider demographic characteristics in any way.
  • Employers should review their whistleblower programs, policies, and practices to ensure they are robust around discrimination-related issues.
  • Notably, the Ames decision considered a disparate treatment claim, and the Administration has ordered the Equal Employment Opportunity Commission (“EEOC”) and other agencies to cease pursuing disparate impact investigations and claims.[1]

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Supreme Court Upholds Expansive Reading of Wire Fraud Statute

by David A. Last, Rahul Mukhi, Joon H. Kim, Matthew M. Yelovich, and Michael Cronin

From left to right: David A. Last, Rahul Mukhi, Joon H. Kim, Matthew M. Yelovich, and Michael Cronin (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

On May 22, 2025, the Supreme Court unanimously upheld the wire fraud conviction of a government contractor in Kousisis v. United States, rejecting the argument that federal wire fraud requires proof of economic loss to the victim. In so holding, the Court endorsed the “fraudulent inducement” theory of wire fraud, marking a victory for federal prosecutors after several recent decisions that narrowed the scope of federal fraud statutes. This decision takes on added significance given the current administration’s renewed emphasis on False Claims Act (“FCA”) enforcement, as companies now face heightened exposure under both criminal fraud and civil FCA theories for false representations to government agencies, even absent demonstrable financial harm.

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The Fallout from SEC v. Jarkesy: Is There a Right to a Jury Trial in Administrative Enforcement Actions Brought by NYDFS?

by Matthew L. Levine

Photo of the author

Photo courtesy of author

Legal developments emerging in the wake of the Supreme Court’s decision in SEC v. Jarkesy, 603 U.S. 109 (2024), present an important question for entities licensed by the New York State Department of Financial Services (NYDFS):  in an administrative enforcement action brought by NYDFS, does Jarkesy entitle the targeted entity to a jury trial?

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Confronting Percoco and Full Play: The Limitations of Honest Services Fraud and the Travel Act as an Alternative Source of Liability for Commercial Bribery

by Hector Correa Gaviria and Berke Gursoy

Photos of the authors

Left to Right: Hector Correa Gaviria and Berke Gursoy (photos courtesy of authors)

On September 1st, 2023, District Court Judge Pamela Chen delivered a startling decision, overturning the honest services fraud convictions of Hernán Lopez, former Fox executive, and FullPlay Group, S.A., an Argentine sports marketing company. Lopez and FullPlay were convicted of federal wire fraud for bribing employees of the Fédération Internationale de Football Association (FIFA) and CONMEBOL (the South American soccer federation under the umbrella of FIFA) to secure lucrative broadcasting contracts for some of Latin America’s most prestigious soccer tournaments and World Cup qualifying matches.

In United States v. Full Play,[1] a federal jury found that Lopez and FullPlay used U.S. wires to defraud FIFA by depriving the international soccer organization of the right to its employees’ faithful and honest services in violation of 18 U.S.C. §§ 1343 and 1346 (jointly referred to as honest services wire fraud “HSF”). However, soon after this conviction, the Supreme Court in Percoco v. United States limited the scope of HSF.[2] They did so by restricting the sources of fiduciary duty that can support an HSF conviction, holding that a limited number of on-point pre-McNally cases was insufficient to sustain an HSF conviction.[3] Through this ruling, Percoco essentially established a limiting principle for HSF; however, it did not articulate a test for when an actionable fiduciary duty under HSF could be found.[4]

In the wake of Percoco, the defendants in Full Play filed a motion for acquittal on their honest services charges.  They argued that under Percoco, honest services fraud does not cover foreign commercial bribery because the statute requires defendants to induce a violation of the bribe-recipient’s fiduciary duty to the victim organization and because the type of fiduciary duty alleged in this case, a duty owed by foreign employees to a foreign employer, is not cognizable under §1346. Judge Chen agreed, holding that there was not “even a smattering” of pre-McNally cases to support the defendants’ HSF convictions.[5]

Though this case is under appeal, the judge’s ruling represents the difficulties of post-Percoco commercial bribery prosecutions through § 1346.[6] This article will argue that the Travel Act, 18 USC § 1952, represents an effective substitute for § 1346 that allows federal prosecution of commercial bribery through both HSF and state-level commercial bribery statutes.

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The Supreme Court’s Business Docket: October Term 2023 in Review

by John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Akua Abu

Photos of the authors

Left to right: John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Akua F. Abu. (Photos courtesy of the authors)

In early July, the Supreme Court concluded its most consequential Term in years, with a flood of decisions on contentious issues ranging from abortion access to the regulation of social media companies and gun possession to presidential immunity. The Court’s business docket was no less active. While the Consumer Financial Protection Bureau narrowly survived a constitutional challenge to its funding mechanism, the Court’s conservative majority elsewhere struck body blows to the administrative state—including the long-anticipated reversal of the Chevron doctrine of judicial deference to agency interpretation of ambiguous statutes. Beyond this headline-grabbing showstopper, the Court issued a string of commercially significant decisions, affecting bankruptcy, arbitration, securities, and employment law. We summarize below the key business decisions from this Term and flag a few key cases to watch in the coming Term.

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Supreme Court Punches SEC APs Right in the Seventh Amendment

by Andrew J. Ceresney, Charu A. Chandrasekhar, Arian M. June, Robert B. Kaplan, Julie M. Riewe, Kristin A. Snyder, and Jonathan R. Tuttle

Photos of the authors

Top left to right: Andrew J. Ceresney, Charu A. Chandrasekhar, Arian M. June, and Robert B. Kaplan. Bottom left to right: Julie M. Riewe, Kristin A. Snyder, and Jonathan R. Tuttle. (Photos courtesy of Debevoise & Plimpton LLP)

Recently, in a long-awaited ruling with significant implications for the securities industry and administrative agencies more generally, the U.S. Supreme Court affirmed the Fifth Circuit’s decision in Jarkesy v. SEC, holding that the Seventh Amendment right to a jury trial precluded the U.S. Securities and Exchange Commission (the “SEC”) from pursuing monetary penalties for securities fraud violations through in-house administrative adjudications. The key takeaways are:

  • The Court’s ruling was limited to securities fraud claims, but other SEC claims seeking legal remedies may be impacted, as well as claims by other federal agencies that may have been adjudicated in-house previously.
  • We expect that the SEC will continue its practice of bringing new enforcement actions in district court, except when a claim only is available in the administrative forum.
  • Because of the majority decision’s focus on fraud’s common-law roots, the decision raises questions about whether the SEC may bring negligence-based or strict liability claims seeking penalties administratively.
  • The Court did not resolve other constitutional questions concerning the SEC’s administrative law judges, including whether the SEC’s use of administrative proceedings violates the non-delegation doctrine and whether the SEC’s administrative law judges are unconstitutionally protected from removal in violation of Article III.
  • We anticipate additional litigation regarding these unresolved issues.

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CFPB “Firing On All Cylinders” After Surviving Constitutional Challenge To Funding Structure

by Nowell D. Bamberger, Elsbeth Bennett, and Andrew Khanarian

photos of the authors

From left to right: Nowell D. Bamberger, Elsbeth Bennett and Andrew Khanarian. (Photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

The Supreme Court recently upheld the Consumer Financial Protection Bureau’s funding structure in a 7–2 decision that will likely pave the way for renewed regulatory activity by the agency in the near future. 

Enacted as part of the Dodd-Frank Act, the CFPB’s unique funding structure permits the agency to annually request an unspecified portion of funds from the Federal Reserve System, subject to an inflation-adjusted cap. In rejecting a constitutional challenge to this funding structure by several trade associations, the Supreme Court held in Consumer Financial Protection Bureau v. Community Financial Services Association of America that the Appropriations Clause merely requires Congress to identify the source and purpose of federal funds, and that Congress’s one-time appropriation for the CFPB in the Dodd-Frank Act meets that minimal constitutional standard. The seven-member majority largely aligned in their reasoning that the Constitution’s text and history, as well as early congressional practice, endorsed funding mechanisms such as this one, and thus provided broad legal support for the fiscal independence of agencies that are delegated substantial powers. As a practical matter, this decision will likely jumpstart long-delayed regulatory and enforcement work at the CFPB, including the vacated payday lending rules that were the subject of this litigation.

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