Skatteforvaltningen v. Markowitz

25-916-cv Skatteforvaltningen v. Markowitz In the United States Court of Appeals for the Second Circuit August Term, 2025 No. 25-916 SKATTEFORVALTNINGEN, Plaintiff-Appellee, v. RICHARD MARKOWITZ, JOCELYN MARKOWITZ, JOHN VAN MERKENSTEIJN, ELIZABETH VAN MERKENSTEIJN, BERNINA PENSION PLAN, BASALT VENTURES LLC ROTH 401(K) PLAN, AVANIX MANAGEMENT LLC ROTH 401(K) PLAN, HADRON INDUSTRIES LLC ROTH 401(K) PLAN, CAVUS SYSTEMS LLC ROTH 401(K) PLAN, STARFISH CAPITAL MANAGEMENT LLC ROTH 401(K) PLAN, VOOJO PRODUCTIONS LLC ROTH 401(K) PLAN, AZALEA PENSION PLAN, OMINECA PENSION PLAN, BATAVIA CAPITAL PENSION PLAN, CALYPSO INVESTMENTS PENSION PLAN, ROUTT CAPITAL PENSION PLAN, RJM CAPITAL PENSION PLAN, MICHELLE INVESTMENTS PENSION PLAN, REMECE INVESTMENTS LLC PENSION PLAN, XIPHIAS LLC PENSION PLAN, TARVOS PENSION PLAN, Defendants-Appellants. On Appeal from the United States District Court for the Southern District of New York.  ARGUED: MAY 13, 2026 DECIDED: AUGUST 31, 2026 Before: NARDINI, LEE, and ROBINSON, Circuit Judges. Defendants-Appellants Richard and Jocelyn Markowitz, John and Elizabeth van Merkensteijn, and various pension funds they control appeal the entry of judgments against them following a jury verdict finding them guilty of defrauding Skatteforvaltningen (“Skat”), the tax authority of the Kingdom of Denmark, by submitting false claims for tax refunds that Skat fulfilled. Before trial in the United States District Court for the Southern District of New York (Lewis A. Kaplan, District Judge), defendants conceded that they were never entitled to the refunds they requested under the U.S.-Denmark tax treaty, but contended that they had been deceived by their London-based trading partner into believing that they owned shares of stocks in Danish companies and that Danish tax had been withheld from dividends issued by those Danish companies. In defendants’ telling, they were accordingly unaware that the tax refund claims submitted on their behalf to recover taxes purportedly paid to Skat were false. The jury evidently did not believe defendants’ side of the story. On appeal, defendants argue primarily that Skat’s entire suit is barred by the common law revenue rule, which prohibits courts from hearing actions by foreign nations to enforce their foreign tax laws. They also argue that the district court abused its discretion when it 2 excluded several pieces of evidence that supposedly showcased their non-fraudulent states of mind, and that there is insufficient evidence to support the fraud judgments against Jocelyn Markowitz and Elizabeth van Merkensteijn, the wives of Richard and John, which Skat pursued via an agency theory of liability. All of defendants’ challenges fail. Because defendants concededly never received any dividends on Danish equities and thus never owed or paid any foreign taxes, Skat’s suit does not seek to enforce foreign tax laws. Defendants may have exploited the Danish system of dividend tax withholding and the U.S.-Denmark tax treaty to defraud Skat. But that does not mean that Skat’s attempt to recover the funds it was defrauded into disbursing was a claim for the collection of foreign taxes within the meaning of the revenue rule. Likewise, we discern no abuse of discretion in the district court’s evidentiary rulings. And there was ample evidence from which the jury could have and did conclude that Jocelyn and Elizabeth formed agency relationships with their husbands and that the scope of those relationships encompassed the fraud perpetrated on Skat. Accordingly, we AFFIRM the judgment of the district court. MARC A. WEINSTEIN (Neil J. Oxford, William R. Maguire, Gregory C. Farrell, on the brief), Hughes Hubbard & Reed LLP, New York, NY, for Plaintiff-Appellee. 3  ANDREW WEINER, Kostelanetz LLP, Washington, D.C. (Nicholas Bahnsen, Kostelanetz LLP, Washington, D.C., Sharon McCarthy, Kostelanetz LLP, New York, NY, on the brief), for Defendants-Appellants. WILLIAM J. NARDINI, Circuit Judge: Defendants-Appellants Richard and Jocelyn Markowitz, John and Elizabeth van Merkensteijn, and various pension funds they control appeal the entry of judgments against them following a jury verdict finding them guilty of defrauding Skatteforvaltningen (“Skat”), the tax authority of the Kingdom of Denmark, by submitting false claims for tax refunds that Skat fulfilled. Before trial in the United States District Court for the Southern District of New York (Lewis A. Kaplan, District Judge), defendants conceded that they were never entitled to the refunds they requested under the U.S.-Denmark tax treaty, but contended that they had been deceived by their London-based trading partner into believing that they owned shares of stocks in Danish companies and that Danish tax had been withheld from dividends issued by those Danish companies. In defendants’ telling, they were accordingly unaware that the tax refund claims submitted on their behalf to recover taxes purportedly paid to Skat were false. The jury evidently did not believe defendants’ side of the story. 4  On appeal, defendants argue primarily that Skat’s entire suit is barred by the common law revenue rule, which prohibits courts from hearing actions by foreign nations to enforce their foreign tax laws. They also argue that the district court abused its discretion when it excluded several pieces of evidence that supposedly showcased their non-fraudulent states of mind, and that there is insufficient evidence to support the fraud judgments against Jocelyn Markowitz and Elizabeth van Merkensteijn, the wives of Richard and John, which Skat pursued via an agency theory of liability. All of defendants’ challenges fail. Because defendants concededly never received any dividends on Danish equities and thus never owed or paid any foreign taxes, Skat’s suit does not seek to enforce foreign tax laws. Defendants may have exploited the Danish system of dividend tax withholding and the U.S.-Denmark tax treaty to defraud Skat. But that does not mean that Skat’s attempt to recover the funds it was defrauded into disbursing was a claim for the collection of foreign taxes within the meaning of the revenue rule. Likewise, we discern no abuse of discretion in the district court’s refusal to admit certain evidence under the hearsay exception in Federal Rule of Evidence 804(b)(1) or its exclusion of other evidence, mostly relating to defendants’ communications with their attorneys, under Rule 403. Finally, we hold that there was ample evidence from which the jury could have and did conclude that Jocelyn and Elizabeth formed agency relationships with their husbands and that the scope of those relationships encompassed the fraud perpetrated on Skat. 5  Accordingly, we AFFIRM the judgment of the district court. I. Background Unless otherwise indicated, the following background information was presented to the jury in the form of exhibits and testimony at trial. A. Factual history Defendants Richard Markowitz, a former investment banker, and John van Merkensteijn, a former corporate lawyer (except where otherwise indicated, “defendants”), along with two other individuals, formed a small investment firm called Argre Management in 2005. In 2008, Markowitz was introduced to the concept of dividend tax arbitrage, a trading strategy that exploits how a country taxes dividends issued by domestic companies to nonresident shareholders. In short, most every country has a withholding tax on passive income, including dividends. When a dividend is issued by a company in Country A to a shareholder that is a resident of Country B, the dividend is subject to Country A’s ordinary withholding tax, which is often 30%. However, treaties between countries can minimize or eliminate the withholding tax that the shareholder in Country B owes to Country A. For example, a tax treaty between Country A and Country B might stipulate that certain entities resident in Country B owe only 10% tax on dividends issued by companies in Country A. Because Country A automatically withholds 30% of dividends issued by its domestic companies, under the tax treaty, eligible Country B investors would be entitled to money representing 6 the 20% that is rightfully theirs under the tax treaty—that is, a refund of the 20% they overpaid. In some countries, including Denmark, investors receive a certificate confirming the dividend withholding tax deduction from the custodian of their shares. The investors then make a corresponding claim to the tax authority that imposed the withholding tax to claim their refund. In 2010, Markowitz spoke with London-based investor Sanjay Shah and others at Shah’s firm, Solo Capital, about an investment opportunity related to dividend arbitrage. At the time, Solo Capital was organizing the “Broadgate fund” in Ireland to capitalize on a reduced tax rate on dividends in Germany under the Germany- Ireland tax treaty. Merrill Lynch would serve as the prime broker for the transaction and Pricewaterhouse Coopers (“PwC”) would be the auditor. Argre invested approximately $10 to $15 million in the Broadgate Fund, including approximately $1 to $2 million apiece from Markowitz and van Merkensteijn. The trade turned a profit. Merrill Lynch and PwC subsequently terminated their involvement in the Broadgate trading because they were concerned that the level of borrowing was excessive relative to the contemplated transaction. In 2011, Solo Capital proposed another arbitrage transaction to Argre, this time under the U.S.-Germany tax treaty. The planned transaction would involve the purchase of shares via a non-taxable U.S. entity that was entitled to a zero-tax rate on dividends in Germany under the U.S.-Germany tax treaty (versus the merely reduced rate in the Broadgate transaction). Argre hired Michael Ben- Jacob, a lawyer at Kaye Scholer in New York, to advise on the 7 proposed transaction. 1 Ben-Jacob introduced Argre to a charitable entity, Ezra Academy, that would serve as the non-taxable account holder and developed the structure for the transaction: Argre and other investors would provide Ezra Academy with the capital to purchase the German shares in exchange for a percentage of the profits from the dividend tax arbitrage. Deutsche Bank served as custodian for the transaction (the “Ezra transaction”). Two months into the trading, Deutsche Bank sent a termination notice to Solo Capital. As Markowitz testified, the bank “decided after an internal decision . . . that they did not want to be participating in the dividend arbitrage transactions involving German shares [due to] reputational risks to Deutsche Bank.” App’x at 688. Markowitz explained that around the time of the Ezra transaction, Germany was in the process of “altering their rules and regulations regarding dividend withholding tax . . . such that by the end of 2011” dividend arbitrage transactions would not be “consistent with the laws of the land in Germany.” Id. The Ezra transaction did not turn out to be profitable because the German government ultimately refused to issue refunds, and Ezra Academy eventually withdrew its refund requests. See App’x at 658. Although Ezra Academy had hedged its positions and was able to sell the German shares, its investors lost money due to the transaction costs involved. 1 Skat subsequently sued Ben-Jacob for his role in the fraud at issue here, but he settled shortly before trial. 8  i. The Danish trading Argre and Solo Capital turned their attention to Belgium and Denmark. 2 As relevant here, a treaty between the United States and Denmark provides for the full refund of tax withheld on dividends (at the time, 27%) to shareholders that are United States pension plans, which are exempt from taxation. In re Skat Tax Refund Scheme Litig., 356 F. Supp. 3d 300, 308 (S.D.N.Y. 2019) (“Skat I”). Argre and Solo Capital aimed to exploit this zero-tax rate, and Argre accordingly established several pension plans that would engage in this trading, preceded by the creation of sponsoring limited liability companies (“LLCs”). Because neither Merrill Lynch nor Deutsche Bank—nor any comparable institution—was willing to serve as custodian for the latest dividend arbitrage transactions, Solo Capital became a custodian registered in the United Kingdom. The contemplated trading in Belgium and Denmark differed in a key respect from the prior transactions: Unlike the other transactions, which required investors to put up the capital needed to finance the stock purchases, “Solo Capital stated that it would not require any margin or upfront funding of futures contracts.” Appellants’ Br. at 10. That is, Argre would not need to invest any money in order to reap the rewards of the trading. 2 Argre’s trading activities in Belgium spawned a lawsuit by the Belgian tax authority asserting similar claims to those at issue here. See In re Kingdom of Belgium, Fed. Pub. Serv. Fin. Pension Plan Litig., 680 F. Supp. 3d 460, 465 (S.D.N.Y. 2023). That litigation is ongoing. 9  This was—supposedly—possible thanks to a trading strategy that proceeded as follows. First, Solo Capital, on behalf of the pension plans, would purport to buy large numbers of shares in Danish companies that had announced they would pay a dividend before the ex-dividend date, which is the date on which a company determines which shareholders will be entitled to receive a dividend. The pension funds would purportedly hedge those purchases against the potential that their value would decline by selling exchange-traded futures contracts on the stock. The next day, Solo Capital (on behalf of the pension plans) would lend out that same stock to a stock borrower on a short-term basis for cash collateral that was equal to the purchase price of the stock, thereby “financing” the stock purchases just before the settlement date, which is the date on which a buyer of stock (here, the pension plans) has to provide the cash to the seller and the seller has to tender the shares to the buyer. The purpose of this transaction structure was to give the pension plans the right to a dividend at exactly the right moment—namely, the moment at which the defendants would be entitled to a dividend that would be taxed by the Danish government (i.e., the ex-dividend date). Then, the pension plans would “unwind” the transactions by selling their shares and using the proceeds to refund the cash collateral that was borrowed from the stock borrowers. We pause here to note that one of the major focuses at trial was the degree to which the mechanics of the trading—including the fact that Argre did not have to invest any money of its own in order to claim entitlements to refunds—would have made it clear to Argre 10 that the entire trading scheme was fraudulent. As discussed below in Section III.A, defendants disputed the degree to which Markowitz and van Merkensteijn were aware that the strategy did not result in the bona fide purchase of Danish stocks. For now, we merely point out that, as defendants conceded before trial, the true reason that Solo Capital did not require any upfront funding for the transaction— which would have required the (at least temporary) purchase of millions of Danish shares—was because its trading strategy did not result in the actual purchase of any Danish shares. As Skat’s expert explained, “[t]hey were closed loop, circular transactions in which a seller ‘sold’ shares it did not have to a [pension] plan that purported to cover that sale by supposedly borrowing those same shares from the plan . . . which never had the shares to begin with.” App’x at 525. As it turned out, the sellers that had supposedly sold the initial shares to the pension plans had themselves borrowed those shares from a stock loan intermediary. And from where did that stock loan intermediary source those shares? From the very same pension plans. Id. at 525–26, 529–30. The trading thus represented a closed “loop,” with no real stocks ever entering the picture: As Skat’s expert summarized, “not only were there no shares, but money didn’t move outside . . . [or] inside the Solo platform. It was all book fictitious entries.” Id. at 526. The fictitious “trading” began in August 2012, when six of the initial Argre plans (supposedly) collectively purchased tens of millions of shares of the Danish company TDC for approximately $249 million. After these initial (non-existent) trades, the Argre 11 partners created several more pension plans to participate in the scheme, including plans for which their wives were the sole beneficiaries. After Markowitz and van Merkensteijn parted ways with the other Argre partners in 2014, they created 40 new pension plans in order to continue to participate in the arbitrage “trading,” without the fear of getting sued for using plans that former partners “had worked with and worked on behalf of.” App’x at 604. As with the original pension plans, the beneficiaries of these plans included Markowitz and van Merkensteijn’s friends and family. See, e.g., id. at 607 (Markowitz confirming that several LLCs and pension plans were formed for the benefit of his sister and brother-in-law). Across all of the trading from 2012 to 2015, the pension plans purported to buy $75 billion worth of Danish stock. ii. The reclaim applications The key piece to the profitability of these structured transactions was the pension plans’ supposed receipt of dividends and concomitant reclaim applications to the Danish government. Thus, in order to submit those applications, Solo Capital-related custodian entities generated dividend statements for the pension plans that purported to list the name of a Danish security the plan owned, the number of shares, the gross dividend, the tax, and the net dividend. The statements represented that the pension plan’s account was credited with an amount equal to the net dividend—the gross dividend less 27%. The statements were subsequently submitted (via a reclaim agent) to Skat, alongside a refund claim application, a cover letter, and an IRS form that certified the pension plans’ U.S. tax 12 residency. Altogether, the documents submitted to Skat represented that the pension plans were the beneficial owners of the relevant stock on the ex-dividend date, that they had received dividends, and that they had paid taxes on those dividends. Each of those representations was false; as defendants conceded at the outset of trial, the trading strategy executed by Solo Capital did not in fact result in the beneficial ownership of any Danish shares. Nevertheless, between 2012 and mid-2015, Skat made hundreds of millions in payments corresponding to the amounts claimed by the pension plans. In July 2015, the U.K. government alerted Skat to a suspected fraud concerning dividend taxes and identified the reclaim agents and custodians involved, including those linked to Solo Capital. The scheme the U.K. authorities described was similar to a scheme described in a whistleblower complaint submitted to Skat in June 2015. On August 6, 2015, Skat halted all refund payments while it investigated the alleged fraud. B. Procedural history Between May and June 2018, Skat filed 140 complaints in eleven different federal judicial districts in the United States alleging that various defendants had defrauded it of millions of dollars by submitting reclaim applications that falsely represented they were entitled to tax refunds. On October 3, 2018, the complaints were consolidated and assigned to Judge Kaplan by the Judicial Panel on Multidistrict Litigation. Skat subsequently filed several additional complaints, including the ones against Richard and Jocelyn 13 Markowitz and John and Elizabeth van Merkensteijn, and their pension plans. Skat claimed that the MDL defendants obtained refunds of tax withholdings on dividends by fraud, aiding and abetting of fraud, and negligent misrepresentation, and sought return of the tax refunds based on mistake, unjust enrichment, and equitable recoupment. The MDL defendants moved to dismiss Skat’s claims on the basis of the common law revenue rule, which prohibits courts from hearing actions by foreign nations to enforce their foreign tax laws. The district court denied the motion to dismiss, and the MDL defendants’ subsequent motion for summary judgment, reasoning that if Skat “can prove that the defendants never in fact owned the relevant Danish stocks . . . the revenue rule would not apply because the substance of the claims would be for garden variety commercial fraud,” not for a violation of Danish tax law. Skat I, 356 F. Supp. 3d at 308; see also In re Customs and Tax Admin. of the Kingdom of Denmark (SKAT) Tax Refund Litig., 2023 WL 8039623, at *9–*10 (S.D.N.Y. Nov. 20, 2023) (“Skat II”) (summary judgment decision). As the district court explained, Skat did not allege that defendants “participated in tax evasion or otherwise violated Danish tax law.” Skat II, 2023 WL 8039623, at *10. Instead, it alleged that defendants stole money by “pretending that the plans were entitled to tax refunds because they owned Danish shares and received Danish dividends[] on which Danish tax had been paid.” Id. Such a claim, according to the district court, did not fall within the ambit of the revenue rule. 14  Skat also brought fraud claims against Solo Capital and Shah in the United Kingdom in 2018. In April 2021, Justice Andrew Baker of the English High Court dismissed Skat’s claims under the English equivalent of the common law revenue rule—termed “Dicey Rule 3”—because the claims “in substance, sought indirectly to enforce . . . Danish revenue law.” 3 Skat II, 2023 WL 8039623, at *5 (internal quotation marks omitted). In February 2022, the English Court of Appeal reversed Justice Baker’s decision, holding that Dicey Rule 3 did not bar Skat’s claims. Id. On November 8, 2023, the English Supreme Court affirmed the decision of the Court of Appeal. Id. Back in the United States, trial proceeded in January 2025 on Skat’s fraud, negligent misrepresentation, and restitution-based claims against the Markowitzes, the van Merkensteijns, and their pension plans. 4 At the beginning of trial, defendants conceded that, as a factual matter, Solo Capital did not acquire shares of Danish stock when it purported to execute the dividend arbitrage transactions that undergirded the reclaim applications filed with Skat on behalf of their pension plans. In other words, they abandoned the argument they made at summary judgment, that they were indeed the beneficial 3 The term “Dicey Rule 3” refers to a formulation of the common law revenue rule in a highly respected English treatise on the conflicts of law. See 1 Dicey, Morris & Collins on the Conflict of Laws 107 (15th ed. 2012) (“Rule 3 – English courts have no jurisdiction to entertain an action: (1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State; or (2) founded upon an act of state.”). Although the formulation of the rule remains unchanged in the latest version of the Dicey treatise, it has been renumbered as Rule 20. See 1 Dicey, Morris & Collins on the Conflict of Laws 291-92 (16th ed. 2022). 4 These defendants were selected to be the first of multiple bellwether trials for entities that defrauded Denmark via false refund claims. 15 owners of the shares, and that they therefore made no material misstatements to the Danish government. Thus, as to the fraud claims, the sole issue at trial was whether Markowitz and van Merkensteijn—individually and as agents of their wives—believed that the statements made to Skat in the form of the reclaim applications and associated documents were true when made, and whether any false statements were made negligently. (Defendants also denied making those false statements negligently.) Defendants therefore adduced evidence purporting to show—and argued to the jury—that at the time the trading was ongoing, they had been deceived by Shah into believing the stocks had actually been purchased. Markowitz and van Merkensteijn testified that they believed that shares were actually being bought, settled, and custodied at Solo Capital, including because they did not know the identity of the entities that initially sold them their shares (and thus did not know those entities were merely stock loan intermediaries that had supposedly sourced the shares from defendants’ own pension plans) and because they had no idea that the dividend statements created by Solo Capital were fabricated. Skat, for its part, lacked direct evidence that Markowitz and van Merkensteijn were aware of the fraudulent nature of the scheme. Skat therefore introduced evidence purporting to show a mountain of red flags that—it argued—would have made clear to experienced investors such as Markowitz and van Merkensteijn that the trading was fraudulent. 16  For example, as Skat argued to the jury during closing arguments, (1) Solo Capital (and other entities Shah created) served as custodian for these transactions—rather than a large bank—and began to do so only after the custodians (and auditors) for the prior transactions pulled out; (2) although the pension plans that Argre set up had zero or negative balances, the first “trade” supposedly purchased over $530 million in stock (a strategy that repeated over the remaining trades); (3) the trades were implausibly large for the no-name broker that was used as a middleman; (4) the terms of the purported stock loans (the supposed existence of which Markowitz and van Merkensteijn relied on for their claim that they were unaware that Danish stock had not actually been purchased) were highly irregular; (5) liquidity “magically appeared for every trade,” such that “[e]very time [defendants] supposedly bought stock, it just so happened that some stock loan counterparty in the Cayman Islands was interested in borrowing that same amount of shares for the same amount of money,” App’x at 931; (6) as to the transactions that supposedly hedged the risk of the stock supposedly being bought, no party ever posted any margin (i.e., collateral); (7) in each instance where the pension plans supposedly lent their share purchases to (newly-created) stock borrowers, the cash collateral was exactly equal to the purchase price of the shares, notwithstanding changes in market price between the date the stocks were purchased and the date they were lent; (8) and the sheer amount of shares Solo purported to purchase was implausible, such as one set of March 2013 trades in which the Argre plans supposedly purchased approximately 10% of all the outstanding shares of the Danish company Novo Nordisk, a 17 feat that only very large financial institutions, such as BlackRock, State Street, and Bank of New York Mellon, might have been able to do. Skat also put on evidence of what it described as efforts by Markowitz and van Merkensteijn to disguise the nature of the scheme, which would constitute evidence of knowledge and intent. For example, as Skat likewise argued to the jury, (1) there is no legitimate reason for a single person to have multiple pension plans open in his or her name—much less six, the maximum number Argre signed an individual up for in the course of this trading—because the limits on 401(k) contributions are per person and not per plan; (2) Markowitz and van Merkensteijn instructed their lawyers to name their newly formed LLCs (and concomitant pension plans) with “dissimilar” names that were not all “financial sounding,” like “capital” and “management,” and to instead use words incorporating “rocks” or “fish” and to append “manufacturing, productions, [or] technology” to the LLC names, App’x at 605; and (3) email evidence suggested that the real reason for the numerous pension plans was to keep the reclaims below one million euros per stock so as to avoid raising suspicion. In turn, defendants put on evidence and argued to the jury that “the so-called red flags were not as suspicious as [Skat’s expert] made them out to be and further that they relied in good faith on countervailing information that the trading was legitimate.” Appellants’ Br. at 16. Nevertheless, the jury found each of the defendants liable on all of Skat’s claims. 18  The district court entered judgments against the individual defendants and their numerous pension plans totaling over $476 million based on Skat’s gross payments on their reclaim applications plus prejudgment interest and minus credits for sums Skat had recovered through other means. In its memorandum concerning the judgment, the district court explained that “[t]he amounts of the money judgments warranted as a matter of law on the fraud claims are exactly equal to those that would be warranted on the negligent misrepresentation claims and would exceed those that would be warranted on the restitution claims,” so it entered judgment “on the fraud claims alone.” Dist. Ct. Dkt. 1526, at 1. It also held that “in the hypothetical absence of liability on the fraud claims, it would enter judgments for the plaintiff and against each consolidated defendant in the precise amounts on the negligent misrepresentation claims.” Id. It additionally stated that “in the hypothetical absence of liability on both the fraud and negligent misrepresentation claims, it would enter judgments in the appropriate cases for the plaintiff and against each consolidated defendant on the restitution claims” in a manner laid out in a series of tables. Id. at 1–2. Defendants now appeal, arguing primarily that the common law revenue rule bars this entire suit. They also argue that the district court committed evidentiary errors warranting a new trial, and that there is insufficient evidence to support the fraud verdicts against Jocelyn Markowitz and Elizabeth van Merkensteijn. We address each argument in turn. 19 II. The common law revenue rule Defendants argue that the common law revenue rule bars this suit because the substance of Skat’s claims seeks to enforce foreign (i.e., Danish) tax law. We review this purely legal argument—raised and denied at the motion to dismiss and summary judgment stages of this litigation—de novo. See Keeling v. Hars, 809 F.3d 43, 47 (2d Cir. 2015). A. Legal background The common law revenue rule is a principle inherited—as the name suggests—from English courts that “barred courts from enforcing the tax laws of foreign sovereigns.” Pasquantino v. United States, 544 U.S. 349, 352 (2005). “Since the late 19th and early 20th century, courts have treated the common-law revenue rule as a corollary of the rule that, as Chief Justice Marshall put it, ‘[t]he Courts of no country execute the penal laws of another.’” Id. at 360–61 (quoting The Antelope, 10 Wheat. 66, 123, 6 L.Ed. 268 (1825)). As Justice Thomas explained in Pasquantino, the most recent Supreme Court case addressing the revenue rule: The rule against the enforcement of foreign penal statutes . . . tracked the common-law principle that crimes could only be prosecuted in the country in which they were committed. The basis for inferring the revenue rule from the rule against foreign penal enforcement was an analogy between foreign revenue laws and penal laws. 20  Courts first drew that inference in a line of cases prohibiting the enforcement of tax liabilities of one sovereign in the courts of another sovereign, such as a suit to enforce a tax judgment. The revenue rule’s grounding in these cases shows that, at its core, it prohibited the collection of tax obligations of foreign nations. Unsurprisingly, then, the revenue rule is often stated as prohibiting the collection of foreign tax claims. Id. at 361 (internal footnotes and citations omitted). In Pasquantino, the Court considered whether a federal wire fraud prosecution targeting defendants for their scheme to smuggle liquor into Canada to evade Canada’s alcohol import taxes was barred by the common law revenue rule. The Court first determined that defendants’ conduct fell within the meaning of the wire fraud statute, 18 U.S.C. § 1343, because it involved the use of domestic wires to perpetrate a scheme to defraud Canada of its property—namely its right to uncollected excise taxes. Id. at 355–59. Turning to defendants’ revenue rule argument, the Court held that the prosecution was not barred because no common law revenue rule cases decided by the date of enactment of the wire fraud statute “held or clearly implied that the revenue rule barred the United States from prosecuting a fraudulent scheme to evade foreign taxes,” id. at 360, and because the purposes of the revenue rule did not otherwise suggest that the prosecution was improper, id. at 368. In its review of relevant common law cases, the Court emphasized that the case before it involved “a criminal prosecution brought by the United 21 States in its sovereign capacity” to deter and punish domestic criminal conduct—namely, use of domestic wires to perpetrate fraud, rather than to recover a foreign tax liability, id. at 362, 364, rendering it fundamentally different from cases the object of which was to collect “money that would pay foreign tax claims,” id. at 364. As relevant here, the Court also noted that the suit “enforce[d]” Canadian tax law “in an attenuated sense” insofar as it, like earlier cases voiding contracts aimed at circumventing foreign tax law, “encouraged the payment of foreign taxes.” Id. at 366–67. But, as the Court explained, the “revenue rule never proscribed all enforcement of foreign revenue law,” at times permitting “indirect recognition” of foreign tax laws. Id. at 366, 368. Having concluded that common law precedent did not pose a “clear bar” to the prosecution, the Court turned to “whether the purposes of the revenue rule, as articulated in the relevant authorities, suggest differently.” Id. at 368. The Court concluded that they did not. The “prosecution pose[d] little risk of causing the principal evil against which the revenue rule was traditionally thought to guard: judicial evaluation of the policy-laden enactments of other sovereigns.” Id. And although the prosecution required the “recogni[tion of] foreign law to determine whether the defendant violated U.S. law,” the Court deferred to the Executive branch’s conclusion, in electing to bring the prosecution, that such recognition did not threaten “international friction.” Id. at 369. 22  B. Discussion Pasquantino and this Circuit’s cases teach that revenue rule issues are resolved on a case-by-case, fact-specific basis rather than by reflexive application of categorical rules. We ask, first, whether the substance of the suit seeks to enforce foreign tax law. This inquiry is informed by analogous common law cases (if any). If we conclude that prior cases pose no clear bar to the suit, we next consider whether permitting the suit contravenes the purposes of the revenue rule, with particular attention to whether the case would involve the judicial adjudication of issues of foreign tax law, which is the most significant policy rationale undergirding the rule. As discussed below, we conclude that Skat’s suit neither seeks the domestic enforcement of foreign tax law nor threatens the evils the revenue rule is designed to protect against. i. Whether Skat’s suit constitutes direct enforcement of Danish tax law The revenue rule bars suits where “the substance of the claim is, either directly or indirectly, one for tax revenues,” Att’y Gen. of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 130 (2d Cir. 2001) (“Canada”), such that “the whole object of the suit is to collect tax for a foreign revenue, and that this will be the sole result of a decision in favour of the plaintiff.” Id. at 131 (quoting United States v. Harden, [1963] S.C.R. 366, 372–73 (Can.)). “What matters is not the form of the action, but the substance of the claim.” Id. at 130. As we have explained, “[a] suit directly seeks to enforce foreign tax laws 23 when a judgment in favor of the plaintiffs would require the defendants to reimburse them for lost tax revenues. In contrast, indirect enforcement occurs when a foreign state seeks a remedy that would give extraterritorial effect to its tax laws”; for example, “a suit seeking damages based on law enforcement costs is an attempt to shift the cost of enforcing the tax laws onto the defendants.” European Cmty. v. RJR Nabisco, Inc., 355 F.3d 123, 131 (2d Cir. 2004) (“EC I”) (Sotomayor, J.) (discussing Canada), cert. granted, judgment vacated and remanded, 544 U.S. 1012 (2005). 5 Here, defendants conceded that they never beneficially owned Danish stocks, and thus they conceded that they were not issued dividends from which Denmark withheld taxes subject to refund. In this way, they abandoned any argument that Skat’s suit would entail an adjudication of whether they did in fact beneficially own Danish stocks, which in turn would determine whether they had any tax liability under Danish law—a determination that, they contended at the outset of this litigation, would indirectly enforce Danish tax law. See Skat II, 2023 WL 8039623, at *7–*10 (concluding that resolving disputed questions about beneficial ownership under Danish law would not constitute impermissible indirect enforcement). Accordingly, we consider only their claim that Skat’s suit directly enforces Danish tax law. 5 Pasquantino was decided while a petition for certiorari in EC I was pending. After Pasquantino was issued, the Supreme Court vacated EC I and remanded for reconsideration in light of Pasquantino. This Court decided to reinstate its prior judgment because “the factors that led the Pasquantino Court to hold the revenue rule inapplicable to [18 U.S.C.] § 1343 smuggling prosecutions are missing here.” European Cmty. v