Why Is Insider Trading Sometimes Civil and Sometimes Criminal?

Raj

Here’s  an easy-to-read primer by @WaltPavlo in @Forbes on the difference between civil and criminal prosecutions of insider trading: Insider Trading: Civil Or Criminal Crime?

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In particular, note two observations: (1) the combination of new technology with old-fashioned mob and gang investigation tools (such as audio and video surveillance) means that developing evidence of wrongful intent is easier than in the past and (2) by anecdote, at least, civil defendants appear to be no more likely to re-offend than criminal defendants which, if supported by data, has implications for the proper exercise of prosecutorial discretion.

 


Weekend Cocktail Notes from White Collar Wire

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“’This is a good place,’ he said.
‘There’s a lot of liquor,’ I agreed.”
― Ernest Hemingway, The Sun Also Rises

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Gin is juniper, in our opinion.  Gin should not be “citrus-forward”: Is The Gin Category In Danger of Losing Its Way? 

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F. Scott Fitzgerald, On Booze

From the advertising blurb:

“First you take a drink,” F. Scott Fitzgerald once noted, “then the drink takes a drink, then the drink takes you.” Fitzgerald wrote alcohol into almost every one of his stories. On Booze gathers debutantes and dandies, rowdy jazz musicians, lost children and ragtime riff-raff into a newly compiled collection taken from The Crack-Up, and other works. On Booze portrays “The Jazz Age” as Fitzgerald experienced it: roaring, rambunctious, and lush – with quite a hangover.

Time Out

Timeout’s Best Cocktails In New York City 2013:

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New York cocktail lovers had plenty to choose from with this year’s excellent slugs. Our favorite drinks included a Spanish-tinged julep, a highbrow egg cream and a head-turning martini. From daisies to gimlets and everything in between—these are TONY’s top tipples of the year.

 


Browning: “the poet, not the automatic”

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Does reading literary fiction really increase your social intelligence?  Here: I Know How You’re Feeling, I Read Chekhov

Maybe.  But what about crime fiction?

 

 

 

 

A little Raymond Chandler increases the social intelligence you really need.  The best crime fiction illumines sin, salvation and manners as well as Chekhov.

See this 1977 essay on Chandler by Clive James:  The Country Behind The Hill

‘In the long run’, Raymond Chandler writes in Raymond Chandler Speaking, ‘however little you talk or even think about it, the most durable thing in writing is style, and style is the most valuable investment a writer can make with his time.’ At a time when literary values inflate and dissipate almost as fast as the currency, it still looks as if Chandler invested wisely. His style has lasted. A case could be made for saying that nothing else about his books has, but even the most irascible critic or disillusioned fan (they are often the same person) would have to admit that Chandler at his most characteristic is just that – characteristic and not just quirky. Auden was right in wanting him to be regarded as an artist. In fact Auden’s tribute might well have been that of one poet to another. If style is the only thing about Chandler’s novels that can’t be forgotten, it could be because his style was poetic, rather than prosaic. Even at its most explicit, what he wrote was full of implication. He used to say that he wanted to give a feeling of the country behind the hill.

. . . .

Marlowe can be hired, but he can’t be bought. As a consequence, he is alone. Hence his lasting appeal. Not that he is without his repellent aspects. His race prejudice would amount to outright fascism if it were not so evident that he would never be able to bring himself to join a movement. His sexual imagination is deeply suspect and he gets hit on the skull far too often for someone who works largely with his head. His taste in socks is oddly vile for one who quotes so easily from Browning (‘the poet, not the automatic’). But finally you recognize his tone of voice.

It is your own, day-dreaming of being tough, of giving the rich bitch the kiss-off, of saying smart things, of defending the innocent, of being the hero. It is a silly day-dream because anyone who could really do such splendid things would probably not share it, but without it the rest of us would be even more lost than we are. Chandler incarnated this necessary fantasy by finding a style for it. His novels are exactly as good as they should be. In worse books, the heroes are too little like us: in better books, too much.

 


Alabama’s New Sentencing Guidelines

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A good summary from Sentencing Law and Policy Blog about Alabama’s new sentencing guidelines:

I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.

For lots of reasons, and perhaps especially because Alabama’s sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely.

This is the truth: discussion about sentencing guidelines hinges on your view of their severity (or the lack thereof).


From our friends at the White Collar Crime Prof Blog

Quick collection of white-collar news from the   White Collar Crime Prof Blog:

Mark Hamblett & Sara Randazzo, The AmLaw Daily, Ex-Kirkland Partner Sentenced to One Year For Tax  Fraud

George J. Terwilliger III, National Law Journal, Walking a Tightrope in White-Collar Investigations

AP, Las Vegas Sun, Ex-Akamai exec barred for 5 years in SEC case; Bob Van Voris, Bloomberg, Ex-Akamai Executive Settles SEC Suit Over Rajaratnam Tips

Nate Raymond, Reuters, Baltimore Sun, U.S. prosecutor cautions against white-collar sentencing revamp

Jennifer Koons, Main Justice, Former Enron Prosecutor Tapped to Head Criminal Division

Zachery Fagenson, Reuters, Ex-Bolivian anti-corruption official denied bail in Miami extortion case


Tuomey, Stark, FCA and Advice of Counsel

This has been a long saga, even by FCA standards: Judge orders Tuomey to pay $276.8 million for Stark, False Claims Act violations (via ModernHealthcare.com).

In summary:

A federal judge ordered South Carolina’s Tuomey Healthcare System to pay $276.8 million for violating laws that bar hospitals from paying doctors to refer Medicare patients for treatments.

On Tuesday, U.S. District Judge Margaret Seymour ruled against Tuomey (PDF) on virtually every post-trial issue and granted the government’s request to impose $39.3 million in Stark penalties and another $237.5 million in False Claims Act fines. Seymour also rejected Tuomey’s attempts in legal filings to nullify the verdict.

The damage amount is believed to be the largest of its kind against a community hospital in U.S. history, involving more than 21,000 Medicare claims that a jury said violated the Stark law and the False Claims Act. The claims were worth a total of $39.3 million.

Here’s the post-trial order and opinion.  Note especially the discussion of the jury’s rejection of the advice of counsel defense.  If you retain a lawyer, you have to be careful about terminating the relationship.