Monday, October 6, 2008

Some Highlights from the Third Annual ABA Securities Fraud Conference

Talk about a hot topic - there were no available seats in the room for the session titled The Sub-Prime Meltdown: Reactions and Action at the SEC and DOJ, and people were standing in the back and on one side of the room. Moderating the panel, Philip Hilder, introduced the topic by saying that we are likely to be headed for some serious investigations. Craig Margolis focused on subprime basics. When you have defaults and "perceptions of default" problems arise. The ripple effect and downgrades will likely lead to investigations and prosecutions.

Gil Soffer, from the Office of the Deputy Attorney General, after giving the DOJ disclaimer for anything said, noted that U.S. Attorneys offices were prosecuting in the districts and there were also quite a number of task forces that might include players such as DOJ, SEC, and others.

Everyone on the panel seemed to be talking about the complexity of securities cases - the same complexity that seemed to be pervasive in the Enron investigation.

But some matters may prove to be simple. Lisa Monaco, Deputy Chief of Staff to the Director of the FBI, noted a caseload that had more than doubled - from 700 to 1400 cases -- cases involving everything from misrepresentation on loan applications to property flipping. And Andy Calamari, Associate Regional Director of the U.S. Securities and Exchange Commission talked about coordinating on a policy level.

The luncheon address was given by Deputy Attorney General Mark Filip.  His talk can be found here. Some might say that it sounded like a plea not to be subject to a statute like the Attorney-Client Privilege Protection Act. And although the new guidelines are a step in the right direction, as guidelines they are not enforceable at law absent a court using its supervisory powers.

Finally,  the last panel I had the opportunity to see was the one I participated on - Monitors: When, Why and How? Is Congressional Oversight Inevitable. Joshua Hochberg, the moderator, asked some thoughtful questions following my brief overview of the proposed Accountability in Deferred Prosecution Act.  Panelists, Jonathan (Jon) Barr, Paul Pelletier (DOJ), Cheryl Scarboro (SEC) and Amy Walsh looked at questions such as the role of a monitor, the selection of a monitor, the cost of paying a monitor, and some of the controversies related to the appointment of a monitor.

I did not have the chance to hear some wonderful panels that included many top individuals and was sorry to miss the talks of others from the academy - Professors John Coffee and Sara Sun Beale. From the little I did see, I would rank the Third Annual Securities Fraud conference as the best yet. For more information on this conference see here.


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