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Second Circuit Review: A Non-Categorical Approach to Federal Restitution

November 20, 2020

Litigation of counsel Martin Flumenbaum and firm chairman Brad Karp’s latest Second Circuit Review column, “A Non-Categorical Approach to Federal Restitution,” appeared in the November 18 issue of the New York Law Journal. The authors discuss a recent Second Circuit decision that construed “offense against property” under the Mandatory Victims Restitution Act (MVRA) by holding that a categorical approach should not apply to federal restitution orders under the MVRA, thereby making restitution contingent on the manner in which the offense was committed rather than on the crime’s elements. The Second Circuit’s decision in United States v. Razzouk signals that, despite the prevalence of the categorical approach in other contexts such as immigration and sentencing, courts may be receptive to arguments that other criminal (if not civil) statutes call for case-specific approaches. More concretely, corporations whose employees engage in bribery to the detriment of the corporation, as in Razzouk, may be entitled to restitution. Litigation associate Melina Meneguin Layerenza assisted in the preparation of this column.

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