• Deferred Prosecution Agreements

    Deferred Prosecution Agreements and the Individual

    The first SEC deferred-prosecution agreement for an individual raises a couple of issues.  Here is the document itself:  SEC DPA With Herckis First, a reminder.  A “deferred prosecution agreement” is what its name implies.  It’s an agreement between a company (and now, an individual) that puts off — for good, hopefully — prosecution on the condition that the defendant/respondent complete a certain course of action laid out in the agreement (for example, hiring an independent corporate monitor or auditor who will report to the government). Second, there is guidance on DPAs in the United States Attorney’s Manual.  Review the 2010 Grindler Memorandum, which is an amendment to the 2008 Morford Memorandum.  The Morford…

  • Securities Fraud,  Sentencing

    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

  • SEC,  Securities Fraud

    SEC Game-Time Program

    Can’t tell the players without a program.   This is a handy graphic guide (via @WSJ) to the persons, entities, events and outcomes in SEC enforcement related to the financial crisis.

  • Compliance,  SEC

    SEC Goes To Bat For Misled Compliance Officer

    From The Wall Street Journal Risk & Compliance blog (and Samuel Rubenfeld @srubenfeld):  Good news for corporate compliance officers whose officers or employees lie to them or mislead them:  SEC Stands Up For Compliance Officers  The Securities and Exchange Commission took the side of compliance officers — after a Colorado-based investment adviser was caught lying to one.   Earlier this week, the SEC said its own probe found that Carl Johns, an investment adviser in Louisville, Colo., concealed several hundred trades in his personal accounts after failing to report them by altering brokerage statements and other documents. He later created false documents that purported to be pre-trade approvals, and misled…

  • Bank Fraud,  Evidence,  Insider Trading,  Securities Fraud,  Trials, Judges and Jurors

    New DOJ Cases From the Financial Crisis? Look For This Criminal/Civil Hybrid

    A good summary by Peter Henning, here —   DOJ Financial Crisis Cases?  — about possible future cases arising from the financial crisis and the Government’s use of a FIRREA provision.  In part: But pursuing criminal cases from the financial crisis gets increasingly difficult, especially against individuals, because unlike a good bottle of wine, evidence does not age well. Memories dim and the chance of finding the “smoking gun” e-mail or recording that can help implicate a defendant in a fraudulent scheme becomes less likely with the passage of time. Mr. Holder will more likely pursue charges under a civil statute that has become the Justice Department’s favorite tool of late against…

  • Insider Trading,  Securities Fraud

    A Prosecutorial Campaign In The Media

    Mr. Bharara’s comments are measured, but a prosecutorial campaign in the media is always disquieting (as a defendant’s media campaign can be troubling): Prosecutor Hits The Media Trail.  And, although it’s true that “sometimes it’s the case that conduct is so pervasive and there’s so much that shouldn’t be going on that is going on, that the only way that justice can be done is by indicting the entire institution,” very few American businesses — even those with some very bad apples —are actually run as criminal enterprises.  Rather, the threat of a company indictment is often simply a tool to achieve other prosecutorial ends.