Saturday, March 3, 2007
On May 11, 2007, the Federal Bar Association is hosting its fourth annual CLE event in New Orleans: The Big (not so) Easy: What Every Federal Criminal Law Practitioner Should Know. Attendees can register online by going here and clicking on the Calendar of Events. The Honorable Ricardo Hinojosa, Chair of the U.S. Sentencing Commission, will be the keynote speaker. Details of the program can be found in the brochure here.
CORPORATE CRIMINALITY: LEGAL, ETHICAL, AND MANAGERIAL IMPLICATIONS
Hosted by the Georgetown Business Ethics Institute, in partnership with the National Association of Criminal Defense Lawyers, the Heritage Foundation, the US Chamber of Commerce’s Institute for Legal Reform, and the American Criminal Law Review
Georgetown University Law Center
March 15, 2007
For details here
The SEC filed an insider trading case against unknown purchasers of TXU Corp. call options in another example of transactions in foreign accounts buying ahead of an acquisition. The deal to take TXU private by Kohlberg Kravis Roberts, Texas Pacific Group, and Goldman Sachs was announced on February 26, but the stock began rising the previous Friday, and eventually gained over $10 per share. According to the Litigation Release (here):
[B]etween February 21 and February 23 -- prior to the public disclosure of the merger agreement -- while in possession of material, nonpublic information regarding this acquisition offer, the Unknown Purchasers, using overseas accounts, purchased over 8,020 call option contracts for TXU stock in accounts at three broker-dealers in the United States. As the complaint alleges, the call option contracts were "out of the money" and most were set to expire in March, within weeks of the purchase date. The complaint further alleges that, as a result of the increase in price of TXU stock following the Announcement, the unrealized illicit profits on these option contracts total approximately $5.4 million.
The trading occurred through three firms in Europe, according to the SEC's complaint (here). On February 21, 1,060 March 60 call options were purchased through the Credit Suisse office in Zurich, for a profit of over $450,000. The second trades, through Fimat International Banque S.A. Frankfurt Zweigniederlassung, an options firm in Germany, involved 40 March 60s and 220 April 62.50s, for a profit of approximately $150,000. The largest trades were through the UBS London office, with the purchase of 3,500 March 37.50s and 3,200 March 60s, generating a profit of about $4.7 million. There are no details in the complaint about the purchasers beyond account numbers, and it is not clear whether there is any connection between the three sets of trades. The accounts have been frozen, and the Commission filed for a TRO less than a week after the announcement, which is not unusual in cases involving overseas trading if there is a danger that the assets will leave the country. The issue now is ferreting out the actual purchasers to determine what connection, if any, they may have to the transaction. (ph)
Friday, March 2, 2007
In an article published in the Wall Street Journal (here), Daniel Henninger wrote:
Thirty years ago on Wall Street, Salim "Sandy" Lewis was a household name. His father Salim co-built Bear Stearns, and he in turn made his reputation in the high-stakes corporate-merger cycle of the 1980s. He worked without legal or disciplinary taint until he was 49. In 1986 a federal prosecutor named Rudolph Giuliani indicted him for securities violations.
His accuser was Boyd Jeffries, the criminal acolyte of famed financial criminal Ivan Boesky. The case itself was arcane. Outraged at a short-selling practice legal at the time, Mr. Lewis urged Jeffries to engage in a stock transaction to thwart the short sellers. A subsequent court called what he did "an act of market vigilantism, in which Mr. Lewis in no way personally profited." And indeed the short-selling practice he attacked was later outlawed. Still, his own act was illegal.
Rudy Giuliani indicted him on 22 counts. He pleaded guilty to three, facing 15 years. Judge Mary Johnson Lowe reduced it to three years probation, an act of now-antique proportionality. The SEC got an injunction banning Mr. Lewis for life from the securities business; this was the core of a reputation the court record had shown steeped in good works. He sought to restore it.
In 2001, he received a pardon from President Clinton (later called "a bona fide pardon on the merits" by a federal judge). The SEC bar order remained. He again sought relief in court, and this past summer Judge William Conner of the Southern District (aka Wall Street) lifted the lifetime bar, saying "we cannot ignore the inequity inherent in the injunction." It took only 20 years.
This blog posted two entries referring to Mr. Lewis, and they have been removed. We apologize for any misstatements in them. (ph)
The Department of Justice's decision to remove seven U.S. Attorneys from their positions for purported performance reasons just got more sticky with charges by former New Mexico U.S. Attorney David Iglesias that his termination may have been because he resisted political pressure to pursue more aggressively investigations of Democrats. A Washington Post story (here) details Iglesias' allegations, which came the day after he ended his term, that two federal elected officials called him in October 2006 asking that he speed up the investigation of Democrats before the November election. One reason apparently cited by the Department for Iglesias' removal was complaints about him from members of Congress. Putting two and two together, Iglesias asserts that his refusal to comply with the requests led to his dismissal.
That politics are involved in the selection and retention of U.S. Attorneys is nothing new -- these are appointed offices and political loyalty can be the price of admission. Nor is it unknown that the Department of Justice uses prosecutions for political gain, and targets certain types of crimes to tout its credentials as an effective crime-fighting operation. Crime is a political hot-potato, and U.S. Attorney's Offices are not immune, at least not completely. Iglesias' claim is weakened by the fact that the did not report the contact in October 2006, as required by Department policy, and a DOJ spokesman strongly denied the allegation.
The problem for the Department of Justice is the growing perception, particularly in Congress, that the politicization of the process is reaching deeper than just the appointment of U.S. Attorneys. It now includes their removal if they are viewed as falling out of line, and the Attorney General's new authority to appoint interim replacements with no limit on their terms can be viewed as insulating the office from review and oversight by the Legislative Branch. The Department's credibility has suffered quite a few blows over the past couple years, from the search of a Congressional office to attacks on the policy for corporate crime prosecutions to the defense of secret telephone call monitoring. Whether Iglesias' charges are true, DOJ suffered another black eye in removing a group U.S. Attorneys who will now be viewed as targets of a crackdown on "independent" prosecutors. (ph)
Having been roundly criticized on Capitol Hill for perceived softness on insider trading, the SEC and U.S. Attorney's Office for the Southern District of New York announced a set of indictments and civil fraud charges related to two insider trading schemes, involving a total of thirteen defendants, that allegedly netted over $8 million in total profits. The trading involved tipping from insiders at securities firms, including information from an attorney at Morgan Stanley's compliance office -- the very place at the firm charged with preventing the misuse of confidential information. The Morgan Stanley trading involved information about pending corporate deals in 2004 and 2005, and the lawyer, Randi Collotta, was charged along with her husband, Christopher, who is also a lawyer. The other set of trading involved tipping by Mitchel Guttenberg, an executive in the institutional client department at UBS, who sold information about stock analyst upgrades and downgrades before their announcement. A press release (here) from the Southern District of New York prosecutors provides a handy table listing the various conspiracy and securities fraud charges, and four defendants have pleaded guilty. Nothing quite gets the attention of Wall Street -- and Congress -- like a good insider trading saga, and this one will certainly draw notice with two major investment firms involved. (ph)
Thursday, March 1, 2007
Another general counsel has been charged with fraud related to options backdating. Kent Roberts, the former GC at Network Associates -- now McAfee Inc. -- was charged by the U.S. Attorney's Office for the Northern District of California (indictment below) with two counts of mail fraud, one count of wire fraud, three counts of making false statements to the SEC, and one count of falsifying corporate books and records. The SEC also filed civil securities fraud charges. Previously, the general counsels for Comverse Technology and Monster Worldwide have been charged, and both agreed to plead guilty and cooperate.
The allegations against Roberts concern two instances when he is accused of backdating options, once for himself and once for the former CEO, George Samenuk. Roberts was responsible for the company's SEC compliance, and even served as a founding member of the "Ethics First Committee." Network Associates created the committee in 2002 in response to internal control problems, and its responsibilities included investigating instances of employee fraud. Needless to say, Roberts did not mention himself at any point in time.
The mail and wire fraud counts include both money/property and right of honest services theories of fraud. While the recent Fifth Circuit decision in U.S. v. Brown limited the scope of private right of honest services fraud cases, the fact that Roberts backdated his own options grant may help the government by showing the kind of personal skimming that was missing in the Enron Nigerian Barge transaction at issue in Brown.
A more troublesome issue for the government could be the statute of limitations for the counts related to the alleged backdating of Roberts' options, unless he waived the application of the limitations provision. The mailing was on January 9, 2002, and the SEC filing was on January 10, 2002, both related to the Form 4 disclosure of the options grant. The statute of limitations is five years, and the usual rule for mail fraud charges is that the limitations period begins running on the date of the mailing. Similarly, the date of the false filing is the usual trigger for beginning the clock on that charge. The indictment alleges an ongoing scheme because Roberts did not reveal the fraud, but that may not be sufficient to rescue those counts because there was no active concealment, just a failure to disclose. Those appear to be two of the government's strongest counts because they allege Roberts acting in his own self-interest, which can be powerful evidence. Absent a waiver of the statute of limitations, look for defense counsel to challenge those counts and try to have them stricken from the indictment. (ph)
Former McGuireWoods LLP partner Louis W. Zehil was charged with securities fraud in a criminal complaint filed in the Southern District of New York, and the SEC filed civil securities fraud charges. Zehil is accused of defrauding corporate clients by taking shares from so-called "private investment in public equity" (PIPE) transactions, which are used by small companies (and those with substantial financing problems) to raise money by selling securities at below-market prices. As part of the deal, the securities issued are restricted, with a legend placed on them that prohibits sales to the public for a period of time. According to the charges, Zehil acquired the shares through two front companies, Chestnut Capital Partners and Strong Branch Investors, without informing his clients about these transactions. A press release issued by the U.S. Attorney's Office (here) describes how the shares were acquired:
ZEHIL, as counsel for the issuers in the Charged Transactions, sent opinion letters to the issuers’ stock transfer agents directing that all of the issued shares should bear restrictive legends except the shares issued to ZEHIL’s nominees,Strong and Chestnut. ZEHIL’s letters falsely claimed that the shares issued to Strong and Chestnut satisfied legal criteria permitting them to be issued without a restrictive legend. As a result, ZEHIL was able to receive shares without restrictive legends and, almost immediately thereafter, he sold them in the public market. In all cases, he did this before the issuers had filed registration statements with the SEC. By obtaining stock free of the restrictive legends, ZEHIL was able to sell these shares immediately in the public market at a profit in advance of the other PIPE investors. The Complaint alleges that ZEHIL reaped over $10 million in profit through these illicit sales.
The SEC Litigation Release (here) estimates the loss to the corporate clients at over $17 million, while prosecutors peg it at $10 million -- either way, this is a substantial fraud. Because the transactions were related to Zehil's legal representation, I suspect McGuireWoods and its malpractice carrier are figuring out how much they are on the hook for to the clients. Unfortunately for the firm, malpractice policies usually exclude criminal conduct from coverage, so there may be a fight in the offing about who bears the loss from the conduct of the former partner. (ph)
The jury considering the charges against I. Lewis Libby has been remarkably quiet since receiving the case on February 21, initially asking only for some office supplies and pictures of witnesses. Aside from the dismissal of a juror for contact with media reports about the trial, not much has emerged about the pace of the deliberations, and even when they asked a puzzling question they took it back the next morning. A note from the jurors (here thanks to TalkLeft) asked about the meaning of Count 3 of the indictment, charging Libby with making a false statement to the FBI about his conversation with Time reporter Matthew Cooper. Another note (here), sent before U.S. District Judge Reggie Walton could answer the question, came out saying that "we are clear on what we need to do. No further clarification needed. Thank you. We apologize." This may be among the most courteous juries around. It's not clear where they are in the deliberations, unless one assumes they began with Count 1 and so are at least through the first two, which may not be the case at all. The jury watch continues, second only to watching paint dry on the courthouse walls. (ph)
The post-trial phase of the prosecution of former HealthSouth CEO Richard Scrushy and former Alabama Governor Don Siegelman just keeps dragging on, and each month seemingly brings a new purported e-mail between two jurors that could show the deliberations were tainted by outside influences. The defendants' new trial motion based on other e-mails was rejected, in part because the e-mails were never authenticated as involving the jurors. More e-mails appeared in December as part of a motion for reconsideration, and now another one (here) has shown up. Whether any of this will make a difference is still hard to tell, but the more time that elapses the more these e-mails seem to materialize. A story on WSFA TV-12 in Montgomery, Alabama, notes (here) that there may be an "email fairy" in the vicinity. (ph)
Wednesday, February 28, 2007
The SEC brought an emergency action against a Hong Kong company, Blue Bottle Ltd., and its named owner, Matthew C. Stokes, for alleged insider trading. The SEC's complaint (here) asserts that Stokes (or others) obtained advanced information about company announcements by hacking into computer networks to view press releases and other documents shortly before the information was released into the market. They are accused of trading in advance of the information by buying or shorting the securities of twelve companies to take advantage of the effect of the news on the stock prices, reaping profits of approximately $2.7 million. The trading took place in January and February 2007, and it appears that Stokes is only a front name on the account. The SEC Litigation Release (here) describes the most lucrative trading before the release of negative earnings news:
[W]ith respect to the defendants' trading in Symantec, the complaint alleges that on January 12, 2007 at approximately 1:03 p.m. EST, the defendants began buying 10,000 SYMC Jan07 20 put contracts, which represented 20 percent of the total trading in that security for the day. Those contracts were out-of-the money when purchased. Later that same day, at approximately 1:37 p.m. EST, the defendants began buying 500 SYMC Jan07 22.5 put contracts, which represented 41 percent of the total trading in that security for the day. All of the put contracts were to expire on January 20, 2007. Essentially, buying the put options was a bet by the defendants that the price of Symantec stock would decrease. The Commission further alleges that on the next trading day, January 16, 2007, at 7:48 a.m. EST, Symantec issued a downward revision of its third quarter 2007 earnings and revenue forecast. Shortly following Symantec's announcement, the defendants began selling the put contracts, amassing a profit of $1,030,471.
Not a bad profit on an investment made for only a couple days, at most. From the SEC complaint, it appears that approximately $1.6 million is still in the U.S., while about $1 million has joined Elvis in leaving the building. The Commission likely moved now to keep the money here, and will have to continue its investigation of the source of the well-timed trades through civil discovery. This kind of trading is sure to draw the interest of the Department of Justice. The U.S. District Court for the Southern District of New York froze Blue Bottle's assets and ordered a hearing for March 7, although any individuals who might want to claim the money are unlikely to show up and risk an immediate arrest on criminal charges. (ph)
Tuesday, February 27, 2007
According to Yahoo News (AP) here two men plead guilty to illegal computer access for crimes related to MySpace. Perhaps the more interesting aspect of the case is that these young men were arrested in LA for crimes occurring in New York. When the crime relates to a computer, jurisdiction can be almost anywhere- the location of the keystroke, the location of the damage, or the location it passes through. This is yet another example of this happening. (see also here)
Monday, February 26, 2007
The U.S. Attorney's Office for the Central District of California issued a press release telling of a plea being reached in a hedge fund case. The release states that, "[a] former account vice president at a major brokerage firm pleaded guilty today to conspiring with the founder of an investment company that operated a hedge fund to commit securities fraud." Justin Paperny's plea to "to one count of conspiracy to commit mail fraud, wire fraud and securities fraud" includes an agreement for "cooperate with investigators in an ongoing criminal probe into Valencia-based Capital Management Group and its GLT Venture Fund."
Professor J. Kelly Strader (Southwestern) - Guest Blogging - KPMG PART III -
KPMG produced two of the most interesting white collar crime decisions of 2006. In addition to the attorneys’ fees holding discussed in the last entry, Judge Kaplan issued another groundbreaking decision ("Stein II, discussed here). The holding had two essential components. First, the judge held that certain KPMG employees had been coerced into given statements to the government, in violation of their Fifth Amendment right not to be witnesses against themselves. Some defendants had met with the government and made "proffers," statements given with the agreement that they could not be used by the government in its case in chief, but could be used on cross examination and could be used to produce leads. The court found that had KPMG had threatened both to withhold payment of the employees’ attorneys’ fees and to fire certain employees if the employees did not cooperate with the government. These threats amounted to economic coercion that rendered the employees’ waivers of their right to remain silent invalid.
Second, the judge held that KPMG made these threats because of government pressure; if KPMG employees did not cooperate – and assertion of the Fifth was deemed failure to cooperate – the firm risked trial. Thus, KPMG was a government actor and its actions violated the Fifth Amendment. Because of that violation, the judge granted the defendants’ motion to suppress certain of their statements.
Unlike Stein I, this was an appealable decision. Both sides and various amici have filed briefs, and the issue is now pending before the Second Circuit. In their briefs, the parties recognize the significance of the issues. For its part, the government asserts that the sky is falling -- that it will never again be able to gain an entity’s cooperation if Judge Kaplan’s decision is allowed to stand. The defendants’ briefs both support Stein II, and further argue (correctly) that the government’s attack on Judge Kaplan’s fact-finding is in effect a backdoor attempt to appeal Stein I.
The legal issues are fascinating, and raise core Fifth Amendment issues of the sort rarely encountered in white collar cases. As to the first holding – that the threatened loss of employment and loss of legal fees amounted to coercion – the defendants are on solid ground – certainly at least with respect to loss of employment.
As to the second holding – that KPMG was a government agent – the law is hardly settled. This is the holding at which the government aims its biggest guns, and deservedly so, for this ruling would hardly be welcome precedent for the government. One interesting note -- as Judge Kaplan observed in Kaplan II, the DOJ takes the position that a person may commit obstruction of justice when that person makes a false statement to private attorneys representing a corporation that is cooperating in a government investigation. In taking the position that corporate counsel in this position are effectively acting as hired help for the DOJ, while at the same time asserting that KPMG was acting completely independently when threatening its employees, the government does seem to be speaking out of both sides of its mouth. (Next time: what does all this mean for white collar litigation?)
U.S. District Judge Reggie Walton dismissed a juror from the I. Lewis Libby case because she was exposed to information about the prosecution during the weekend break. Jurors are routinely instructed not to look at any media reports about a case or discuss it with anyone, an admonition particularly important during the deliberations. According to an AP story (here), Judge Walton decided not to call on one of the two remaining alternate jurors to join the deliberations because that would require the jury to restart the consideration of the case from the beginning. Instead, the court relied on its discretionary authority under Federal Rule of Criminal Procedure 23(b), which provides that "a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins." The D.C. Circuit recognizes that judges have significant discretion in deciding what is "good cause" for the dismissal and the decision to proceed with eleven jurors (see United States v. Harrington, 108 F.3d 1460 (D.C. 1997) ("Rule 23(b) explicitly and without reservation assigns the stop/go decision to the discretion of the trial court, and nothing in the accompanying Advisory Committee notes, or in any case of which we are aware, cabins this discretion in a way that would call this judge's decision into question."). The judge's decision may indicate that the jurors are close to a verdict, but that is not necessarily the case for the decision to go with an eleven-person jury, and only time will tell how far the jurors had gotten. While Libby could object to the use of an eleven-person jury, it is very difficult to win an appeal on this issue if he is convicted. (ph)
Sunday, February 25, 2007
DOJ reports here on a plea in an antitrust bid-rigging case related to U.S. Navy contracts. The press release states that the two Pennsylvania executives had agreed to "pay a criminal fine of $10,000 each and to serve up to six months in jail for their participation in a conspiracy to rig bids for Department of Defense (DOD) contracts for metal sling hoist assemblies, which are used to transport bombs and other munitions." The plea anticipates cooperation.
Professor J. Kelly Strader - Guest Blogging - KPMG - Part II
KPMG has already produced several extraordinary decision, with more likely ahead. In something of a nuclear explosion for the government, last June, Judge Kaplan, who is presiding over the case, found that KPMG had threatened to withhold payment of attorneys’ fees if its employees failed to cooperate in the investigation. The court also found that KPMG acted under government pressure, in accordance with Department of Justice policies set forth in the Thompson Memorandum. ("Stein I," discussed here, here, here, here and here. (For a discussion of the Thompson Memorandum policies and the subsequent McNulty Memorandum, see here, here, here, here, and here). The court held that KPMG, as a government agent, had violated the defendant employees’ Sixth Amendment right to counsel and right to substantive due process. The court urged the defendants to pursue a civil action against KPMG for the fees, and exercised ancillary jurisdiction over that action. Because this decision did not directly affect the government’s interests, it was not appealable by the prosecution.
Certainly, the Thompson and McNulty memos raise serious issues of fairness. As to Stein I’s Sixth Amendment holding, though, it is difficult to reconcile with the Supreme Court’s decisions in Caplin & Drysdale and Monsanto that a criminal defendant has a Sixth Amendment right to a court-appointed attorney only, not the right to an attorney of choice. (In those cases, the government had sought forfeiture of funds needed to pay attorneys’ fees.) Those cases were decide by bare majorities, and may be based upon questionable logic, but they are still good law. Judge Kaplan’s decision in reality invokes Justice Blackmun’s comment in dissent that "it is unseemly and unjust for the government to beggar those it prosecutes in order to disable their defense at trial."
KPMG has appealed the district court’s exercise of ancillary jurisdiction over the fee dispute, arguing that the district court did not have subject matter jurisdiction and that the claims should be arbitrated. In just one example of the strangeness of this case, Judge Kaplan filed an "amicus brief" (brief here) with the Second Circuit in support of his original decision. The appeal is pending. (Next time: coerced Fifth Amendment waivers.)
We noted here, here, here, and here on the recent exodus of USAs throughout the country. The Washington Post reports here on yet another. Is this getting a little out of hand? Is there some correlation here that warrants review? The bio page of the latest individual leaving the office, Margaret Chiara,here is most impressive.