In a decision last week in the government’s FIRREA action against Wells Fargo (previous coverage here), Judge Furman ruled that, at least in civil cases, an individual cannot force his former employer to waive privilege so the employee can assert an advice-of-counsel defense.  Judge Furman found that allowing a forced waiver in these circumstances would make the privilege “intolerably uncertain”:
Continue Reading Judge Furman: Employee Cannot Assert Advice-of-Counsel Defense When Employer Refuses to Waive Privilege

In an opinion today, Judge Furman largely denied Wells Fargo’s motion to dismiss a government lawsuit relating to its underwriting of government-insured mortgage loans. Judge Furman joined Judges Rakoff and Kaplan in holding that the Financial Institutional Reform, Recovery, and Enforcement Act (“FIRREA”), which allows the government to pursue civil charges against those who commit crimes like mail or wire fraud “affecting a federally insured financial institution,” applies even where the conduct at issue is a bank “affecting” itself.  (See our prior posts on the issue here and here, and see here for a longer version of these posts at Columbia University’s CLS Blue Sky Blog). One of the predicate acts the government alleged against Wells Fargo involved alleged violations of paragraph 4 of 18 U.S.C. § 1005, which criminalizes receiving funds from a bank with the intent to defraud the government. Wells Fargo argued that paragraph 4 is limited to bank insiders, and a 2011 decision from Judge Marrero, United States v. Rubin/Chambers, supports that interpretation.  Judge Furman disagreed with the Rubin decision:
Continue Reading Judge Furman Joins Consensus Endorsing “Self-Affecting” Theory of FIRREA; Splits with Judge Marrero on Scope of Predicate Bank Fraud Law