Saturday, September 30, 2006

Second Day ABA Securities Fraud Institute

Parts of the first day of the ABA Securities Fraud Institute are discussed here. Day Two included a panel breakout on Securities Fraud Sentencing After Booker. The panel members were Hon. Melinda Harmon, who moderated, and Eric Bustillo, David Gerger, Stephen Prowse, James Robinson, and myself. 

One interesting theme that arose in the panel's discussion was the cost to the accused in computing fraud loss.  The Olis case was a perfect example of why one would not want to just accept an expert report submitted by the government and why it is necessary for the defense to hire and prepare their own report. David Gerger, the attorney who handled the Olis re-sentencing, spoke about the pro bono services offered by Professor Joseph Grundfest (see here) and others.  Jim Robinson also remarked, "where do you get the resources?"   One has to begin wondering whether the sentencing guidelines really can operate fairly when some individuals are placed at a disadvantage because they do not have the funds to properly prepare a defense to the government's computation of loss.

One other highlight of the program was when David Gerger, attorney for Andrew Fastow and Jamie Olis, discussed the concept that "cooperation should be valued; non-cooperation should not be punished."


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Having not heard or read Olis's attorney's presentation, I can only guess what not punishing non cooperation means. I would think a better title might be -Cooperation Should be Value and Punished, Non Cooperation though Not Punished should Not be Diminished by the Sentencing Received by Cooperating Witnesses. Honestly, the sentencing of White Collar Corporate Executives is necessarily high because of the great harm they do and the great temptations that they must resist. The main concern of sentencing is deterrence.

Posted by: Ronald X. Groeber, Ball State Univ | Oct 1, 2006 6:22:00 AM

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