Sunday, April 1, 2012
We don't need new legislation insuring that defendants receive the exculpatory information they are entitled to under the U.S. Constitution, because the DOJ has learned its lesson from the Ted Stevens case and will NEVER let something like that happen again.
For example, in the high-profile insider trading case of U.S. v. Rajat Gupta, the DOJ recently argued that its prosecutors did NOT have to review 44 SEC interview memos for Brady material, even though the memos summarized interview sessions jointly conducted by SEC and DOJ attorneys. According to SDNY prosecutors, the overall DOJ and SEC investigations were not technically "joint" in nature, so SDNY AUSAs had no Brady obligations with respect to the SEC memos. The SEC attorneys were capable of conducting the Brady review on their own. Yeah, right. Just like the FBI and IRS Special Agents were capable of conducting the Brady review in U.S. v. Stevens. I completely forgot about the Brady training that SEC attorneys receive on a regular basis. DOJ's position is not only contrary to SDNY and Second Circuit case law--it also violates the letter and spirit of the Ogden Memo, promulgated after Stevens to prevent future Brady debacles. I guess SDNY didn't get the memo. (They're special you know.) Judge Jed Rakoff was having none of it. See his Gupta Brady Ruling, issued last week, for details. In truth, all of the SEC memos should be turned over in their entirety to the defense, just as all of the 302s and MOIs in Stevens should have been turned over.
It is clear that the DOJ has learned almost nothing from the Ted Stevens case. Suppression of exculpatory and/or potentially exculpatory evidence is largely not an issue at the line level. The typical AUSA knows Brady/Giglio when he sees it, and knows to disclose it. The problems tend to arise in high profile cases, particularly those captained out of DC. The sickness extends to very high levels at the DOJ. The Stevens prosecution clearly showed this. The Bill Allen-Bambi Tyree subornation of perjury allegation, reported in 2004 to a federal judge by DOJ prosecutors in a sealed pleading, was classic Giglio material. It should have instantly been recognized as such by the Chief and Deputy Chief of the Public Integrity Unit and they should have ordered it turned over immediately to the defense. It wasn't and they didn't.
The DOJ has run out of scandals and excuses. Enough already. At long last, have they no shame?
Saturday, March 3, 2012
The official opening of the 26th Annual ABA White Collar Crime Conference began with opening remarks from Raymond Banoun, chair of the Institute, followed by remarks of the chair-elect of the ABA Criminal Justice Section, William "Bill" Shepherd of Holland & Knight. Shepherd noted how the ABA includes all aspects of criminal justice (prosecutors, judges, and criminal defense lawyers). He encouraged folks to get involved in the section.
The first panel, titled Recent Trials, featured three recent cases: Raj Rajaratnam, Loren Stevens, and the Lee B. Farkus trials.
The moderator, Ronald J. Nessim, took the speakers through several topics, including the Indictment, key pre-trial issues in each case, the media, discovery, proffers, parallel proceedings, joint defense agreements, and the trial.
Discussing the Farkus case, the prosecutor on the case -Charles Connolly-talked about the issue of how do you simplify a complex fraud scheme to make it understandable for the jury, and what schemes do you charge. Professor Bruce Rogow, defense counsel on the Farkus case, responded that the Indictment was too long and too difficult. Sara Bloom, the prosecutor handling the Lauren Stevens case said the indictment was narrowly tailed. Defense Counsel Reid Weingarten responded that he is still astonished that Lauren Stevens was indicted. Jonathan Streeter, prosecutor on the Rajaratnam case, noted that he did not try to include everything in the indictment. Simplification was a key theme throughout his comments on this panel. John M. Dowd, defending Rajaratnam, discussed the bill of particulars. He emphasized that the case was really not about wire fraud, although that was the basis for the wiretap.
The government power in these prosecutions was brought to life in the discussion of the venue issue in the Farkus case and the perp walk in the Rajaratnam case. The audience was clearly perturbed by the use of a perp walk in the Rajaratnam case, where the accused had cooperated for three years, had no record, was arrested in his apartment, handcuffed for some time at the station, and finally paraded in a perp walk. This was described by defense counsel as "toxic and prejudicial" and the audience applause to that statement sounded like there was agreement. Perp walks need to stop.
Interestingly none of the defense counsel expressed major discovery problems in their cases. Connolly, the prosecutor on the Farkus case, noted how they made the sixty million documents available to defense – they made a mirror imagine for defense and set up weekly conference calls with the defense. That said, John M. Dowd pointed out problems with items such as the affidavit for the wiretap and Bruce Rogow discussed problems with respect to cooperation in the Farkus case coming on the eve of trial. He also noted how the inability during trial to go into certain motivations by cooperating witnesses made his case difficult.
Reid Weingarten emphasized that one needs to think carefully before agreeing to a proffer. He noted that once you make a proffer it is problem putting the client on the witness stand.
Sara Bloom and Reid Weingarten briefly discussed how the government refused to waive a jury trial, despite the defense agreeing to do so in the Stevens case. There was also a discussion about joint defense agreements, and John Dowd noted that when you put a joint defense agreement in writing that is the first act of mistrust.
A key word used throughout this panel by the government was simplify - one needs to make a white collar case understandable to the jury.
(esp)(Blogging from Miami)
Friday, January 13, 2012
Former Denver hedge-fund operator Drew "Bo" Brownstein, about whose case we wrote (see here), was sentenced Wednesday to a prison term of one year and one day following his plea of guilty to insider trading charges. Brownstein had received confidential information from his friend Drew Peterson concerning a pending purchase of Mariner Energy by Apache Corp. and used that information to reap about $2.5 million in profits for himself and his asset management firm. Drew Peterson, who has pleaded guilty but has not yet been sentenced, received the information from his father, H. Clayton Peterson, a Mariner director, and personally netted about $150,000 from it. The older Peterson also pleaded guilty, and received a probationary sentence.
The sentence of 366 days was between the 46-month high under the applicable Sentencing Guidelines range and the probationary sentence requested by defense counsel and above the six-month sentence suggested by the probation officer. The one-year and one-day sentence will allow Brownstein to earn "good time" of 47 days. Under federal law, good time is permitted only for a sentence of more than one year. 18 U.S.C. 3624(b).
Thursday, December 8, 2011
The New York Times yesterday wrote that in the wake of a CBS 60 Minutes report which said that members of Congress bought stock in companies while considering legislation that might affect those companies, Congress is considering laws banning such trading. The CBS report said none of the trading was illegal at the time. See here.
The 60 Minutes report said that the current chairman of the House Financial Services Committee, Spencer Bachus (R-Ala.), then the ranking Republican on the committee, bet stock prices would fall at the time he was being briefed privately that a global financial crisis might be imminent. According to the Times, at that time Congressman Bachus' office denied he had used nonpublic information as a basis for trading.
I do not venture to assess whether any Congressperson traded on inside information. I am also generally opposed to "new laws" since most are unnecessary and duplicative. Nonetheless, I see no reason that Congress should not be held to the same standard as private businesses or citizens. I also suggest consideration that a new statute, a mirror image to 18 U.S.C. 1001, which criminalizes a false statement to a government official, be enacted prohibiting false statements by a government official to the public.
Wednesday, October 26, 2011
Here is the Reuters story. Nothing posted yet on PACER. WSJ Law Blog also has coverage. This will be a much tougher case than Rajaratnam was for the government to prove. This morning's WSJ has a decent background piece (subscription required) on the case.
Thursday, October 13, 2011
Hedge fund billionaire Raj Rajaratnam was sentenced today to an 11-year prison sentence, reportedly the longest sentence ever for insider trading, by Southern District of New York Judge Richard J. Holwell. The sentence was below the approximately 19- to 24-year sentence requested by the government and above the approximately six to eight years requested by the defense.
The Southern District United States Attorney's Office has focused its guns on insider trading offenses, bringing 52 cases in the last two years, 49 of which have resulted in convictions. U.S. Attorney Preet Bharara, who has called insider trading on Wall Street "rampant," has claimed that harsh insider trading sentences are a deterrent because they "convince rational business people that the risk is not worth it." Indeed, since an individual's decision whether to cross the line to trade on confidential information is often based on the individual's benefit v. risk analysis, insider trading may well be one of the relatively few areas of criminality where harsh sentences do actually serve as a deterrent. The Rajaratnam case, which involved a pattern of seeking inside information from tipsters and trading on it for millions of dollars in profits, and cases like it, should be distinguished from those cases which involve a single instance of insider trading based on a casual tip where the decision to trade is not so deliberate and therefore not so deterrable.
The 11-year sentence given to Rajaratnam is the second double-digit insider trading sentence imposed in the Southern District in the past few weeks. A few weeks ago, Judge Richard Sullivan sentenced Zvi Goffer, a former trader at Rajaratnam's firm, Galleon Group, to a 10-year term. While Rajaratnam's criminal involvement was of far greater magnitude than Goffer's, Rajaratnam had serious medical problems and a considerable history of good works, which may well have led to a lesser sentence than he would have received otherwise. Of course, some judges sentence more severely, or more leniently, than others.
Wednesday, August 10, 2011
Last week was Family Week for insider trading actions. Two highly-publicized cases concerned the disclosure and misuse of inside information received from a close relative -- one a spouse, the other a parent.
Both cases implicate the question of whether disclosure of confidential information to a close relative should form the basis of a criminal or regulatory proceeding. While the law provides no safe haven from prosecution for unlawful disclosure to a spouse or child (although the marital privilege may provide some protection to a spouse), respect for family relations may in some cases militate against such a prosecution. Here, however, the facts and circumstances of each case – one justifying prosecution, the other working against it – seem to make that issue moot.
In one, SEC v. William A. Marovitz, 1:11-CV-05259 (N.D. Ill. August 3, 2011), the husband of former Playboy Enterprises CEO Christy Hefner agreed (with the usual non-admission and non-denial of wrongdoing) to pay approximately $170,000 to settle a civil action. The husband, William Marovitz, according to the SEC, traded and made profits on sales of Playboy stock based on information he received from his wife concerning, among other things, a sale of the company. According to the SEC, Hefner had talked with her husband about her concerns with his trading and had the company counsel also speak with him. The counsel sent Marovitz a memo warning of the "serious implications" of his trading Playboy shares and asked him to consult counsel before he did. According to the complaint, Marovitz never did.
Hefner was not charged. Not only was she uninvolved in his trading, she took precautions, however unsuccessful, to prevent her husband’s purported misuse of the information. Of course, she could have prevented any misappropriation of insider information by him by simply not disclosing it.
The settlement amount includes civil penalties. One wonders what, if any, additional penalties Hefner will inflict upon her husband for his apparent betrayal of marital trust.
In another case, U.S. v. H. Clayton Peterson, 11 Crim. 665 (S.D.N.Y.) (see also SEC v. H. Clayton Peterson, etc. al., 11-CV-5448 (S.D.N.Y.)), a father and son both pleaded guilty to criminal securities fraud and conspiracy violations in connection with providing, using, and disseminating inside information concerning the 2010 takeover of Mariner Energy in Denver by the Apache Corporation. H. Clayton Peterson, a Mariner director, pleaded guilty to tipping off his son, Drew Peterson, who traded for himself, clients and a friend for a $150,000 profit and tipped off another friend, reportedly Bo K. Brownstein, a hedge fund executive, who traded for his fund and relatives and friends for profits of more than $5 million.
Peterson Sr. apparently took an active role in the wrongdoing, not only on several occasions providing confidential information to his son, but also directing him on two occasions to purchase Mariner stock for his sister. His conduct, thus, was apparently far more culpable than Hefner’s.
Drew Peterson is reportedly cooperating against Brownstein and others, as, to the extent he can, most likely is his father. Often, the family that steals together squeals together.
Wednesday, June 15, 2011
Danielle Chiesi, the Wall Street blond bombshell who gave new meaning to the term “insider trading” by extracting from sexual partners confidential information which she relayed to convicted inside traders Raj Rajaratnam and Mark Kurland, is reportedly seeking a downward variance from a Sentencing Guideline range of 37-46 months, in part because her wrongdoing resulted from her “toxic” sexual relationship with Mr. Kurland. Ms. Chiesi’s sentencing memorandum highlights a letter from her current boyfriend which contends that Mr. Kurland, her twenty-year lover, exploited her and turned her into his “virtual servant.” Ms. Chiesi seeks to be sentenced to no more than the 27-month term that had been imposed upon Mr. Kurland.
Ironically, one of Ms. Chiesi’s lovers/sources, former IBM executive Robert Moffatt, now serving a six-month sentence for providing confidential information to Ms. Chiesi, at sentencing blamed Ms. Chiesi for manipulating him.
It will be interesting to see whether this “blame the man” explanation strikes a responsive chord with sentencing Judge Richard J. Holwell. Historically, women have received more lenient sentences than men for similar conduct, and the “blame the man” defense frequently worked at sentencing. However, that record was largely compiled with a male-dominated judiciary where some might have condescendingly viewed women as the “weaker sex.” Given changing societal and judicial views (and non-discriminatory mandatory sentences and sentencing guidelines), I suspect that differential has diminished considerably.
Sunday, May 15, 2011
As noted here by Sol Wisenberg, Raj Rajaratnam was found guilty on all counts. Many have been commenting on the case, see here, here, here, here, and here for example. Some predict that this decision will be the stepping stone for future insider trading cases (see here, here , and here) After all the government might say - the wiretaps seemed to work in this case, perhaps they can work in other insider trading cases.
Hopefully, the government will think this through rationally. The wiretaps were clearly questionable (see here) (Professor Dershowitz takes a different view here). It remains to be seen whether a higher court will find their use acceptable. If there are more prosecutions using these types of wires, and it turns out that a higher court finds them unacceptable - a lot of time and money will have been wasted by the government.
A second issue is with respect to what constitutes insider trading and when is the conduct illegal. The fuzzy nature of this question makes many of these prosecutions questionable. The question I always wonder is if the person knew that the conduct was illegal, would they have committed the act. If they knew that a heavy jail sentence would be following, would they engage in this activity. The concern here being that perhaps more time needs to be spent on making criminal offenses clearer and educating folks on what is legal and what is not.
(esp)(blogging from San Francisco)
Wednesday, May 11, 2011
Read all about it. Here is Katya Wachtel's report for businessinsider.com. Carrie Johnson of NPR's All Things Considered discusses the deterrent effect of Wall Street wiretaps in Wiretaps: Not Just For Mob Bosses Anymore, with a quote thrown in from yours truly.
Friday, May 6, 2011
Nathan Koppel, WSJ Blog, Sick Juror Deals Major Setback to Rajaratnam trial
San Francisco Chronicle (Bloomberg), Rajaratnam Jurors Listen to Chiesi Wiretaps in Insider Case
Thursday, April 28, 2011
Earlier this week we saw that Craig Drimal entered a plea to insider trading (see here). Today a second plea to insider trading comes out of the Manhattan US Attorneys Office. An FBI Press Release reports that Donald Langueuil is pleading guilty to insider trading. According to the most recent press release:
"Between 2006 and 2010, LONGUEUIL, along with [another], a former portfolio manager at two hedge funds, JASON PFLAUM, a former research analyst for [this other person], and NOAH FREEMAN, a research analyst at a hedge fund and then a portfolio manager at another fund, and their co-conspirators participated in a conspiracy to obtain nonpublic information ("Inside Information"), including detailed financial earnings, about numerous public companies. These companies included Marvell Technology Group, Ltd. ("Marvell"), NVIDIA Corporation ("NVIDIA"), Fairchild Semiconductor Corporation ("Fairchild"), Advanced Micro Devices, Inc. ("AMD"), Actel Corporation ("Actel"), and Cypress Semiconductor Corporation ("Cypress"). LONGUEUIL obtained Inside Information both from employees who worked at these and other public companies, as well as from independent research consultants who communicated with employees at public companies. Often, the defendant and/or his coconspirators used an "expert networking" firm to communicate with and pay their sources of Inside Information. In addition, although LONGUEUIL and his co-conspirators worked at separate hedge funds, they had regular conference calls during which they shared the Inside Information they learned with each other." (name omitted of individual who has pending charges)
So, what is insider trading? The definition may prove problematic and at some point the Court may provide better guidance. But for those facing charges it is difficult to risk a trial as the cost of being found guilty at trial presents huge consequences. But in the back of my mind I have to wonder if a clearer definition and an understanding that one who engaged in this conduct faced jail time, would have precluded this conduct. Are we using our resources wisely to prosecute those who can be educated not to engage in this conduct?
Tuesday, April 12, 2011
1. The case is not complex, legally or factually. It isn't even interesting, except for John Dowd's Charles Laughton routine. Nor are the issues novel. The evidence against the defendant is overwhelming. The resources spent on the prosecution are wildly out of proportion to the harm caused by insider trading.
2. Contrary to popular myth, fueled by the press, insider trading is not notoriously difficult to prosecute. It is notoriously easy to detect and prosecute. Most people caught at it plead guilty.
3. Nineteen of the 26 charged defendants pled guilty. Tape-recorded conversations establish both insider trading and co-conspirator awareness that insider trading is illegal. This is hardly surprising. There has long been acute awareness of insider trading's illegality within the financial community. That's why people whisper on the telephone, erase emails, hammer up laptops, and go out at 2:00 in the morning to throw away hard drives.
4. The case will not be won because the prosecutors pulled all-nighters in the war room. The case will be won because the prosecutors got a Title III Order and secretly recorded the hell out of everybody.
5. If the government loses this case, the prosecutors should rend their garments and put on sackcloth and ashes. Really. Acquittal will only come through jury nullification or confusion.
6. John Dowd is in the catbird seat. If Rajaratnam is found guilty, it's no big deal, because everyone in the defense bar expects it. If Rajaratnam is acquitted, Dowd is a magician. Meanwhile, Dowd gets to order around seven Akin Gump colleagues and perfect that Charles Laughton imitation. Not a bad gig.
Sunday, February 20, 2011
Thursday's Wall Street Journal has a fascinating piece here by Steve Eder, Michael Rothfeld, and Jenny Strasburg on the friendship, between Donald Longueuil and Noah Freeman, that was shattered by the SDNY's insider trading probe. As the white collar world now knows, Freeman secretly recorded Longueuil. Longueuil's damaging admissions were captured, quoted in the criminal complaint against Longueuil and Samir Barai, and splashed across the headlines. Freeman has pled guilty and his plea agreement is publicly available.
I thought it might be interesting to compare Freeman's plea agreement to that of Danielle Chiesi, who recently pled guilty in the Raj Rajaratnam case. Chiesi has not agreed to cooperate against Rajaratnam as part of her deal, but Freeman has agreed to cooperate with the government against Longueuil. The Noah Freeman Plea Agreement is a classic, bare bones, SDNY white collar plea deal. Unlike the vast majority of federal criminal plea agreements in other jurisdictions, the Freeman agreement contains no Sentencing Guidelines calculations or stipulations. Freeman agrees to plead to two felony counts--securities fraud and conspiracy to commit wire and securities fraud. The maximum statutory term for those two counts combined is 25 years. Freeman agrees to pay restitution and to forfeit proceeds traceable to the charged offenses. The government agrees not to prosecute him further, except for tax crimes, and to recommend a Section 5K1.1 downward departure if he continues to truthfully cooperate. And that's about it.
Why is the agreement structured this way? Because SDNY prosecutors do not want want to put anything into the agreement which would indicate to a jury what actual sentence Freeman might get. If hard Guidelines numbers were put into the agreement, even as non-binding stipulations, Longueuil's attorney could compare those numbers, during Freeman's cross-examination, to the stratospherically higher Guidelines sentence Freeman would have received sans cooperation. Now, when Freeman takes the stand against his former friend, he can truthfully tell the jury that he has no idea what sentence he will ultimately receive. Sure, he wants a light sentence or probation, but all he knows is that he is looking at a statutory max of 25 years and some kind of 5K1.1 motion if he tells the truth.
And what is Freeman's attorney told by the prosecutors, or what does the attorney already know without being told if he or she has practiced long enough in the SDNY? "Trust us. We are not going to promise your guy anything other than a 5K1.1, but if you look at what past white collar targets have received when they came in early and cooperated, you will see that we treated them fairly. Many of them received probation or light sentences. By the way--if you come in on the eve of trial, don't expect to be treated as well." The defense attorney relays this information in some form or another to the client and tells the client that there is no guarantee. He also tells the client that the people who came in early and cut plea deals in the World Com case got probation or light sentences. That fellow who came in right before trial got five years. The guy who went to trial and lost got hit with 25. The client ususally takes the deal. (Who wants to roll the dice with those odds?) It all makes for a much cleaner trial and cross-examination in the government's view.
Contrast this with Chiesi whom the government does not need and who litigated her case like crazy almost until the eve of trial. The Danielle Chiesi Plea Agreement is highly structured and much more like those you will see in other parts of the country. Chiesi pled to three conspiracy counts, each carrying a five year max. The government and Chiesi stipulated as to the appropriate version of the Guidelines, the Guidelines section applicable to her conduct, the base offense level, the adjusted offense level based on an agreed-upon amount of gain, and Chiesi's acceptance of responsibility. The parties stipulated that Chiesi's Guidelines offense level is 21, her criminal history category is I, and her Guidelines sentencing range is 37-46 months. Either side is free to argue for a Booker downward variance, but neither side can argue for an upward or downward Guidelines departure or adjustment unless it is specifically called for in the agreement. Because the prosecutors do not particularly need Chiesi, they are not worried about how her 37-46 month range compares to what her range would have been sans cooperation.
In one of those delightful traditions peculiar to the SDNY, neither of these plea agreements has been publicly filed with the appropriate district court, although neither agreement is under seal. This is insane. Jason Pflaum's plea agreement is virtually identical to Freeman's. Pflaum consensually monitored the conversations/messages of Sam Barai and is expected to testify against Barai and others.
Friday, January 7, 2011
Okay, let me take off my white collar defense attorney hat and put on my former prosecutor hat for a minute. Call it my citizenship hat. Don't most of us want real, unadulterated big-time crooks to be investigated and, where appropriate, charged? Where are all the investigations and prosecutions of the accounting control fraud that caused one of the greatest recessions in U.S. history? You know, the current recession.
Back in the late 1980s, when the S&L Crisis hit and the Dallas-based S&L Task Force was formed, federal law enforcement officials quickly realized that, in many instances, colossal fraud had been committed by the very players who controlled the S&Ls. The S&L fraud was overwhelmingly based on sham transactions and sham accounting for those transactions. Massive resources were committed to investigating and prosecuting the S&L fraud. It was understood that the crooked players had hijacked their S&Ls and defrauded depositors and/or the FSLIC. This rather elementary distinction between the savings and loan as an institution and the fraudsters who controlled it was grasped by AUSAs and effectively conveyed to juries across the land.
Nothing like this is happening today with respect to the federal government’s investigation of the housing bubble, liars’ loans, and Wall Street's subprime lending scandal. The overwhelming number of investigations and prosecutions seem to be focused on piker fraudsters—corrupt individual borrowers or mortgage brokers. These cases are easy pickings, but do not get to the massive fraud that clearly permeated the entire financial system.
Professor William Black, of Keating Five fame, has written a scathing piece all about this for the Huffington Post. Here it is. Among Black's revelations? "During the current crisis the OCC and the OTS - combined - made zero criminal referrals." Astounding. These two agencies accounted for thousands of criminal referrals per year during the S&L Task Force years. More fundamentally, Black argues that today's federal prosecutorial authorities do not comprehend that individuals in control of an institution can have an incentive to engage in short-term fraud that enriches them individually while destroying the long-term prospects of the institution and the larger economy.
Nobody should be charged with a white collar crime unless the crime is serious and the prosecution believes in good faith that a jury will find guilt beyond a reasonable doubt. But how about a substantive investigative effort, including commitment of appropriate resources? Why are such huge resources being spent on dubious endeavors like insider trading and FCPA enforcement, while elite financial control fraud goes largely unaddressed? Professor Black's piece is highly recommended reading.
Wednesday, November 3, 2010
Here is the Yves Benhamou Criminal Complaint, out of SDNY, alleging insider trading violations (under Rule 10b-5 and 15 U.S.C. Section 78ff) by a French doctor. Doctor Benhamou purportedly tipped off a hedge fund employee about negative results from the Albuferon clinical trial. The WSJ story, by Jenny Strasburg and Jean Eaglesham, is here. The SEC's civil complaint, via the WSJ, is here
Saturday, July 10, 2010
I wrote here last week about the Second Circuit's opinion in United States v. Kaiser, which overturned a long line of Second Circuit precedent establishing that willfulness in the context of criminal Exchange Act prosecutions requires the government to prove a defendant's awareness of the general unlawfulness of his/her conduct under the securities laws. I pledged to post again and focus a little more on the specifics of the opinion.
The Kaiser Court states that "[m]ore recently, we seemed to endorse a higher standard for willfulness in insider trading cases." This is misleading on several counts.
First, the higher standard for willfulness in criminal cases brought under the Exchange Act was established 40 years ago in United States v. Peltz, 433 F.2d 48 (2nd Cir. 1970). Since when is an opinion from 40 years ago considered recent? Peltz is older that any of the opinions cited by the Court in support of the lower standard of proof.
Second, not one of the higher standard cases cited by the Court explicitly confines the higher standard of proof to insider trading cases. Indeed, Peltz itself was not an insider trading case.
Third, the Court ignored published and unpublished Second Circuit case law that unequivocally applies the higher standard outside of the insider trading context. See United States v. Becker, 502 F.3d 122 (2nd. Cir. 2007); United States v. Schlisser, 168 Fed. Appx. 483 (2nd Cir. 2006) (unpublished).
The Kaiser Court states that "Unlike securities fraud, insider trading does not necessarily involve deception, and it is easy to imagine an insider trader who receives a tip and is unaware that his conduct was illegal and therefore wrongful." (emphasis added).
First, insider trading is quintessentially a species of securities fraud. Most insider trading cases are brought under Section 10(b) of the Exchange Act and SEC Rule 10b-5. These are securities fraud provisions by definition and Rule 10b-5 is well known as the classic catch-all securities fraud regulation. As the Supreme Court stated in Chiarella v. United States, "Section 10(b) is aptly described as a catch-all provision, but what it catches must be fraud." 445 U.S.222, 234-35 (1980).
Second, the essence of insider trading is fraudulent deception through failure to disclose. What Section 10(b) of the Exchange Act outlaws on its face is a "manipulative or deceptive device or contrivance." The Supreme Court in designating insider trading a "manipulative device" has stated that inside traders "deal in deception." See United States v. O'Hagan, 521 U.S. 642, 653 (1997). In fact, all insider trading prohibited by the criminal law involves deception of some party or parties by the inside trader.
The Kaiser Court also at numerous points conflates, deliberately or negligently, case law discussing Exchange Act Section 32(a)'s willfulness requirement with case law discussing Section 32(a)'s provision that "no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation." As noted in my prior post, the Second Circuit precedent does not hold that the government must establish the defendant's knowledge of the particular rule, regulation, or statute that he/she has allegedly violated in order to prove willfulness under Section 32(a) the Exchange Act. But the government must prove the defendant's knowledge that his/her conduct was illegal in general or "wrongful under the securities laws."
As a general proposition in the Second Circuit, one panel cannot overturn another panel's recent precedent. Here, the Kaiser panel appears to have overturned recent and longstanding precedent of myriad other panels. Maybe the higher willfulness standard under Section 32(a) should go. Clearly, the case law on this issue has not always been clear or entirely consistent. But the bench and bar deserved better here.
Tuesday, June 29, 2010
GUEST BLOGGER-SOLOMON L. WISENBERG
Attached is SDNY U.S. District Judge John G. Koeltl's Opinion and Order in SEC v. Jon-Paul Rorech and Renato Negrin, issued last Thursday. With the exception of Koeltl's ruling that the VNU credit default swaps at issue are covered under Section 10(b) of the Exchange Act and Rule 10b-5, the holding was a total defeat for the SEC. For those not wanting to read the entire 122-page opinion, here is the SEC v. Rorech-Introduction and Conclusions of Law portion.
The case centered around Negrin's purchase of VNU credit default swaps from Deutsche Bank's high-yield bond salesman Rorech. Negrin was a portfolio manager for Millennium Partners hedge fund. The case was brought under the misappropriation theory of insider trading. The SEC alleged that Rorech misappropriated confidential information from his employer Deutsche Bank and provided it, during two cell phone calls, to Negrin. The allegedly confidential information was that VNU, a Dutch media holding company, was going to restructure a bond offering and that another Deutsche Bank customer had placed a $100 million indication of interest in such an offering. The restructured bond offering would provide "deliverable instruments" for VNU credit default swaps that were being traded at the time.
Judge Koeltl concluded that:
1. The inside information about the restructured bond offering did not yet exist when Rorech allegedly passed it to Negrin.
2. The information that Rorech did possess at the time of the calls was not material. Rorech's knowledge about a potential restructuring of the bond offering was speculative in nature and already widely shared in the marketplace. Rorech's knowledge regarding another customer's indication of interest was not materially different from information already in the market regarding substantial investor demand for deliverable VNU bonds, through a restructured bond offering.
3. Rorech did not breach any duty of confidentially owed to Deutsche Bank because Deutsche Bank did not consider Rorech's ideas or opinions or, any general information, about a possible VNU bond offer restructuring to be confidential. Rorech was expected by Deutsche Bank to share such information with prospective customers and this was standard practice in the high-yield bond market. The same went for sharing information regarding other customers' indications of interest.
4. Courts cannot infer that inside information was passed from phone calls followed by trading, without something more. Additionally, Negrin's trades were consistent with his past investment practices.
5. There was no evidence of scienter. Rorech and Negrin had no prior personal relationship, there was no quantifiable or direct personal benefit to Rorech from any tip, and there was no deception by Rorech of Deutsche Bank. (This lack of deception is also relevant to the "disclose or refrain from trade" principle of insider trading. Judge Koeltl found that Rorech had in fact disclosed his interactions with Negrin to Deutsche Bank supervisors.) Moreover, Negrin did nothing to hide his dealings with Deutsche Bank.
There is considerably more in the Opinion and Order. The decision is worth reading alone for Judge Koeltl's succinct recapitulation of governing Rule 10b-5 case law, and for his analysis of why the credit default swaps at issue here fall under the purview of Rule 10b-5. Rule 10b-5 often forms the basis of criminal securities fraud charges brought under the Exchange Act (through 15 U.S.C. Section 78ff), and the civil case law, although not identical to the criminal case law, can be highly relevant.
The facts were obviously important here. The SEC didn't have any.
Thursday, June 24, 2010
GUEST BLOGGER-SOLOMON L. WISENBERG
Here is a press release from the National Association of Criminal Defense Lawyers ("NACDL") containing NACDL President Cynthia Orr's comments on today's U.S. Supreme Court honest services opinions. Orr is “heartened that the Court has unambiguously rejected government arguments that the ‘honest services’ fraud statute can be properly used across as broad a range of conduct as the government has sought to do in recent years.” Nonetheless she is"disappointed that the Court has held that there remains a place in our criminal justice system for a statute on whose meaning few can agree.” (In various friend of the court briefs, NACDL has taken the position, now shared by Justices Scalia, Thomas, and Kennedy, that 18 U.S.C. Section 1346 is unconstitutionally vague.)
Orr expects “to see future litigation surrounding efforts by prosecutors to wedge their cases into the ‘bribe or kickback’ paradigm to which the Court has now limited this statute.” Of this we can be sure.
The NACDL press release also bemoans the portion of the Skilling opinion which "shockingly found that pre-trial publicity and community prejudice did not prevent Mr. Skilling from obtaining a fair trial. In fact, though, there has not been a more poisoned jury pool since the notorious first robbery and murder trial of Wilbert Rideau in Louisiana."
Friday, October 2, 2009
NACDL's 5th Annual Defending the White Collar Case Seminar - "Financial Fiasco - Prosecutions & Lawsuits Stemming from the Securities Market Meltdown," Friday, October 2, 2009
Guest Blogger: Ashish S. Joshi, Lorandos & Associates (Ann Arbor, MI / Washington, DC)
Moderator: Gerald B. Lefcourt
This was one of the most anticipated panels of the program as the panelists included Hon. Lewis Kaplan who has been roundly applauded by the white-collar defense bar for his insightful and game-changing KPMG decision, Ira Sorkin, the attorney for Bernard Madoff, Susan Brune, who is shortly going to trial to defend Bear Stearns hedge fund managers Cioffi and Tannin, who have been accused of securities fraud, and former SEC Enforcement Director Walter Ricciardi to provide perspective on the major developments taking place at the SEC.
Walter Ricciardi talked about the recent changes in the SEC. With the appointment of Mary Shapiro as the Chair of the Commission, the SEC has sent out a signal that it’s the “tough cop on the beat.” The Commission has strengthened its enforcement division. The new subpoena power given to its enforcement division has also given the SEC more bite. Contrary to its earlier culture where “everybody does everything,” now the SEC has created Specialized Units. These Units – such as the Asset Management Unit – will have a unit head and staff who will focus their attention on the unit’s activities, full time. Ricciardi also mentioned that while the SEC earlier used to go after the entities and left out the individuals who had been accused of wrongdoing, going forward, this will not be the case.
After Ricciardi, it was Ira Sorkin’s turn to speak. Sorkin acknowledged that there has been a major change in white-collar investigation and/or prosecution since his early days at the SEC. Now, the SEC is increasingly reaching out and cooperating with the U.S. Attorneys’ office. The approach appears to be: “Talk to us about case A, we will talk to you about case B.”
Sorkin remarked that in the last 15-20 years, parallel proceedings in a white-collar prosecution have mushroomed. Every regulator, criminal or civil, now wants a piece of these white-collar cases. It’s prestigious, it’s sexy and it garners media attention. As a result, “co-operation agreements” have increased. Agencies and departments are cooperating with each other like never before.
Sorkin also commented on FINRA – a self-regulatory organization. FINRA, during its investigation apparently does not recognize the 5th Amendment privilege against self-incrimination. Your client calls you and tells you that FINRA wants to talk to your client. Basically, you tell your client that you have bad news and worse news in this situation. Bad news: if your client doesn’t testify before FINRA, it can bring a 82(10) proceeding and take your client’s license away. Worse news: if your client does testify, FINRA can then take the transcript and share it with the DOJ or district attorney’s office and your client may end up with a much worse problem.
Sorkin also commented on the SEC and DOJ’s “queen for a day” proffer agreements. These offers are meaningless. They provide nothing to the clients but a lot to the government – and, they are quite dangerous. If you believe that a proffer is necessary, it would be better to go down the road with Rule 410 protections in place.
Sorkin ended his discussion by stating that it was quite alarming that more and more defense lawyers are acting as “junior G-men” for the government to do internal investigations.
After Ira Sorkin, it was the turn of Susan Brune. Brune commented that in this economy, there’s a common perception: why haven’t been people been charged for the collapse of stock market? There is an assumption that just because the stock market went down, there has to be underlying criminality behind this.
Brune also acknowledged that a typical white-collar case is a “resource problem.” It requires tremendous resources. Emails, documents, reports, papers - millions of documents are involved in defending a white-collar criminal case. Just the resources needed to review emails alone are, at times, overwhelming.
Judge Lewis Kaplan stated that maybe the current debate concerning the attorney-client privilege should be re-focused. Judge Kaplan commented that the incessant talk about the Holder-Thompson-McNulty-Filip memorandums might be irrelevant. Instead, the focus should be on the underlying corporate criminal liability. When would a criminal investigation and/or prosecution of a corporate entity be appropriate? If a CFO commits fraud, there should be no issue when the company is made civilly liable for the CFO’s acts. But when the DOJ launches a criminal investigation, it raises other issues. The government often is in a place where it can make the corporations do things to the individual employees that the government otherwise is not in a position to do directly. Be it indemnification, attorney fees, advancement of defense costs… the list is endless.
Judge Kaplan stated that some legal commentators have justified the government’s actions by taking the position that: the society should not be made to expand its finite resources to root out criminal behavior when this burden could easily be shifted to the companies where the alleged criminal behavior has said to have occurred. But, the Judge stated, this was an empirical question.