June 29, 2012
In the News & Around the Blogopshere
Mike Scarcella, BLT Blog, Two Prosecutors in Stevens Case Appeal Disciplinary Action
Lawrence Bader, Forbes, Why do people have a negative view of cooperators?
Second Circuit Affirmed Lynne Stewart Sentencing - opinion
Patricia Hurtado, Bloomberg, Rajaratnam Cooperator Smith Granted Two Years’ Probation
June 28, 2012
AG Holder's Response to Contempt Vote
So let's see - President Obama wins on the health care decision with the Supreme Court, and later the same day the Attorney General is held in contempt of Congress. So which item ends up at the top of a blog. Was this political?
Haley, Madoff, JP Morgan Situations Show Need for Greater Regulation
Today's New York Times was a virtual treasure trove of white collar crime stories. Among them were the following:
"South Carolina House Panel to Hear Ethics Complaints Against Governor" (see here) - South Carolina Governor Nikki Haley is facing a legislative hearing on whether she acted unethically during her term in the legislature when she was paid $110,000 annually as a fundraiser for a hospital whose legislative goals she advocated. Knowing nothing about South Carolina legislative ethics rules or criminal law, I do not venture to opine whether the Governor did anything improper. However, the broad facts here are strikingly close to a series of cases in New York in which a hospital CEO, a state senator and a state assemblyman all were convicted and went to prison. See here. It seems to me there should be a restriction against a legislator working for an entity, at least in a loosely-defined job such as consultant or fundraiser, and advocating or supporting favorable legislation for that entity.
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"Madoff's Brother Sets Plea Deal in Ponzi Case" (see here) - Peter B. Madoff, the brother of Bernard Madoff and the No. 2 man at Bernard L. Madoff Investment Securities, will reportedly plead guilty tomorrow to falsifying documents, lying to regulators and filing false tax returns. Peter Madoff reportedly served as the nominal compliance officer of his brother's wholly-owned securities firm and apparently exercised little or no oversight of the firm's operations, thereby providing his brother the freedom to steal billions.
Placing an investment firm's proprietor's brother as compliance officer is akin to asking the fox to guard the henhouse. It seems there should be, if there is not, a law, rule or regulation prohibiting a close relative, like a spouse, parent, child or sibling, from being the responsible compliance officer in a substantial investment firm owned entirely (as here) or largely by one's relative.
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"JP Morgan Trading Loss May Reach $9 Billion" (see here) - The amount of JP Morgan's trading losses from its London office could be as much as $9 billion -- four and one-half times as much as the company announced originally. While JP Morgan has in view of its considerable profits downplayed the magnitude of the loss, which its chief executive officer Jamie Dimon estimated in May could possibly be as much as $4 billion, obviously a $9 billion loss takes a much greater bite out of the firm's profitability, and conceivably may even raise some questions as to the firm's viability.
We now know, in the wake of bailouts and government support, that the federal government is both the de facto and de jure insurer of major banking institutions. One might ask whether a government insurer, like a private insurance company, should not be able to set specific rules to curb risky activities which might trigger the insurer's support. To update Congressman Barney Frank, there are now nine billion more reasons for increased governmental regulation.
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Like many other white collar defense lawyers, I am strongly against overcriminalization. On the other hand, I am equally strongly against underregulation. One of the principal reasons I favor greater and clearer rules and regulations is to give potential white-collar offenders reasonable notice of what is criminal and what is not, and not leave that decision, as frequently happens now, to a federal prosecutor's interpretation of the amorphous fraud laws.
A significant portion of the white-collar defendants I have represented in the last forty years, including many of those who were convicted, have actually believed that their actions were not criminal. In some cases, this was simply because they lacked a moral compass. In the financial world, where the primary, and often sole, goal is to take other people's money away from them, many people do not consider whether what they do is morally right or wrong, or are so amoral that they are incapable of making that distinction. Tighter regulation will at least tell them what is prohibited and what is not.
National Federation v. Sebelius In A Nutshell
Roberts and the 4 libs (that makes 5) agree that the individual mandate can be fairly construed as a tax, AND that Congress has the power to levy this tax.
The 3 other conservatives and Kennedy (aka "the joint dissenters") dissent.
Roberts and the 3 other conservatives and Kennedy (that makes 5) agree that Congress lacks the Commerce Clause power to make you buy wheat, vegetables, or health insurance.
The 4 libs say that Congress DOES have the Commerce Clause power to make you buy wheat, vegetables, health insurance, granola, soy milk, and a lifetime subscription to Mother Jones.
Roberts, the other conservatives and Kennedy, Breyer, and Kagan (that makes 7) agree that you can't coerce states into expanding their Medicaid coverage by withholding pre-existing Medicaid funding from the states that do not agree to the expanded coverage.
Eat your heart out, Justice Story.
Commentary on the Court's Decision Finding the Stolen Valor Act Unconstitutional
It is important to honor those who served our country and received medals. It is especially important for us to recognize those few who received the Congressional Medal of Honor. These individuals are our heroes and there are not enough words to say thanks to them. It is also important to note that those who did not receive these medals and who lie about having received them have committed despicable acts.
But the question here is whether these acts of lying are criminal.
Congress thought it should be criminal. The Supreme Court in Alverez says otherwise, in light of the First Amendment. The opinion and a summary of that decision are here. What does this case mean for other criminal cases, especially white collar ones -
The Court is clear to distinguish this decision from lies like those occurring when one violates the false statement statute (s 1001) or perjury (s 1623). But could other statutes be implicated by the decision? And can other conduct be implicated? It would seem so.
This opinion, although not stated, reminds us that it is important for criminal defense counsel to remember the First Amendment when evaluating a case. Under the test used by the plurality in Alvarez, if the First Amendment is implicated one needs to ask whether there is "a direct causal link between the restriction imposed and the injury to be prevented." If the government argues that a statement is false and therefore it is criminal, it would seem that under this decision that would be insufficient. But if it were a false statement under oath, that would be different because it affects the "rights and liberties of others."
One also needs to ask, per the concurrence, whether there is a less restrictive way to achieve the government's goal.
Stolen Valor Act Unconstitutional - Alvarez Decision
Don't overlook the Supreme Court's Alvarez decision today when reading about another important decision issued by the Court today - the one that upholds the Affordable Care Act. The Court's finding the Stolen Valor Act unconstitutional opens up some First Amendment arguments in the criminal sphere.
The test provided by the plurality decision is that "there must be a direct causal link between the restriction imposed and the injury to be prevented."
Justice Kennedy (joined by Roberts, Ginsburg, and Sotomayor) found that the respondent who lied about receiving a Congressional Medal of Honor, in direct contravention of a federal criminal statute - the Stolen Valor Act of 2005 (18 U.S.C. s 704) had a first amendment protection. The decision reminds us that there are certain content-based restrictions that are permitted -
"Among these categories are advocacy intended, and likely, to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent" (citations and parentheticals from the decision omitted here)
This opinion states that "[t]hese categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules." But the Court also notes that there is no "general exception to the First Amendment for false statements." And specifically when considering defamation it says "that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood."
That said, this opinion distinguishes statutes such as the false statement statute (s 1001); perjury (s 1623) and false representing that one is speaking on behalf of the Government (s 912).
Although this opinion stresses the importance of the military medals - as it should, it questions whether the "government's chosen restriction on the speech at issue [is] 'actually necessary ' to achieve its interest."
The key test used here - "There must be a direct causal link between the restriction imposed and the injury to be prevented."
The opinion ends by stating:
The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."
Justices Breyer and Kagan offer a concurrence that stresses that there is a less restrictive way to achieve the government's goal. They suggest using "intermediate scrutiny" here in evaluating this case, but also hold that "[t]he Government has provided no convincing explanation as to why a more finely tailored statute would not work."
Dissenting are Justices Alito, Scalia, and Thomas. They note that the statute is limited in several different ways. They argue that "false statements of fact merit no First Amendment protection in their own right" and that it is a narrow law.
Commentary to follow.
June 27, 2012
Barclays Bank to Pay - $160 Million - as Part of Non-Prosecution Agreement
A DOJ Press Release reports, Barclays Bank PLC Admits Misconduct Related to Submissions for the London Interbank Offered Rate and the Euro Interbank Offered Rate and Agrees to Pay $160 Million Penalty
Some highlights of the press release -
- "Barclays Bank PLC, a financial institution headquartered in London, has entered
into an agreement with the Department of Justice to pay a $160 million penalty
to resolve violations arising from Barclays’s submissions for the London
InterBank Offered Rate (LIBOR) and the Euro Interbank Offered Rate (EURIBOR),
which are benchmark interest rates used in financial markets around the world..."
- "To the bank’s credit, Barclays also took a significant step toward accepting
responsibility for its conduct by being the first institution to provide
extensive and meaningful cooperation to the government."
- "Barclays’s cooperation has been extensive, in terms of the quality and type of
information and assistance provided, and has been of substantial value in
furthering the department’s ongoing criminal investigation."
- "The agreement requires Barclays to continue cooperating with the department in
its ongoing investigation."
- "As a result of Barclays’s admission of its misconduct, its extraordinary
cooperation, its remediation efforts and certain mitigating and other factors,
the department agreed not to prosecute Barclays for providing false LIBOR and
EURIBOR contributions, provided that Barclays satisfies its ongoing obligations
under the agreement for a period of two years. The non-prosecution agreement
applies only to Barclays and not to any employees or officers of Barclays or any
Commentary - As a non-prosecution agreement it does not go through the courts and DOJ has the power to enforce or proceed should it believe there is a violation of the agreement. It also sounds like the white collar defense bar may have some new clients as the government has secured the cooperation of the company to go after individuals.
See also Jenna Greene, BLT Blog, Barclays Agrees to Pay $360M to Settle with CFTC, DOJ
over Interest Rate Manipulation
June 26, 2012
In the News & Around the Blogosphere
Katherine Frey, Wash Post, Judge who had ‘no passion for punishment’ retires after 31 years (with a hat tip to Donna Elm and Mark O'Brian)
T. Markus Funk, Law360, Exposing Online Service Providers to Criminal Liability
Joe Nocera, NYTimes, Suspense Is Over in Madoff Case
Dan Strumpf, Chad Bray, Ashby Jones, Fox Business (Dow Jones), Former Executives Agree to Fines in AIG Transaction Case; David Voreacos, Bloomberg-Business Week, Gen Re, AIG Defendants May Win Dismissal of Fraud Cases
Mike Tolson, Houston Chronicle, Clemens' acquittal just latest in string of federal court flops
Associated Press, NYTimes,Two LulzSec Hackers Plead Guilty in Britain (with a hat tip to Ivan Dominguez)