U.S. District Judge Lewis Kaplan’s decision earlier this week was a major victory for the defendants in the KPMG tax shelter case because it at least gives the defendants the basis for obtaining the financial means for defending the case effectively. However, as this Lynnlee Browning/NY Times article points out, the deck is still stacked firmly in favor of the prosecution in such multiple-defendant, business fraud criminal cases. The conflicting interests of the multiple defendants are now rising to the surface of the case, as is the prosecution’s ability to cherry-pick certain defendants for attractive plea deals:

In pretrial hearings since their clients’ indictments last August and last October, defense lawyers have presented a unified front, filing joint motions and refraining from public squabbling. Lawyers for all of the defendants, countering prosecutors’ assertions of criminal intent, are expected to argue that their clients thought at the time that what they did was aggressive but legal.
But increasingly, defense lawyers speak of different camps forming over recent weeks, with lawyers for the junior defendants indicating that they will focus on proving that their clients took orders from the senior defendants, who were responsible for designing and approving the tax shelters.
“You’re beginning to already see the finger-pointing,” said a lawyer for one of the KPMG defendants, declining to be named or to name his client, saying he did not want to jeopardize the case. “It’s going to get antagonistic.”

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As noted earlier here, U.S. District Judge Lewis Kaplan earlier this week slapped the Department of Justice upside the head for threatening KPMG with indictment in the KPMG tax shelter case unless the firm threw its partners to the wolves by rescinding the firm’s policy of paying its partners’ defense costs in such cases. Although Judge Kaplan concluded that it was premature to dismiss the indictment against the KPMG partners as the remedy for the DOJ’s misconduct and fashioned a financial remedy for the partners instead, Larry Ribstein believes that Judge Kaplan’s opinion is a landmark decision that calls into question the DOJ’s dubious policy of criminalizing corporate agency costs in reaction to Enron and other recent corporate scandals:

My basic problem with criminalization of agency costs is precisely that it ignores internal corporate arrangements. The complex set of contracts and incentive devices that comprise a corporation simply doesn’t fit with the sort of moral condemnation that criminal penalties necessarily involve. The nuances of an agency contract are the proverbial square peg in the round hole of criminal law.
But Judge Kaplan emphasizes that indemnification serves an important function in an agency contract: If directors and other agents are over-exposed to liability, they simply wonít work for the firm. One might add that even if they do work for the firm, they wonít take the risks that are necessary to maximize shareholder value and to make capitalism work. Corporate criminal liability essentially seeks to reengineer the firm to change incentives so that agents are no longer maximizing profits, but attempting to root out fraud at all costs.
The fundamental importance of this case is that Judge Kaplan is telling the government that the contract matters, even if it gets in the way of prosecution. By doing this, Judge Kaplan is re-reengineering the firm to make it, once again, a profit-maximizing entity rather than a government agent. [. . .]
Of course this one case isnít going to solve all of the problems of corporate criminal liability. Corporate defendants will face the basic problem that it is hugely burdensome to defend these cases, which gives the government considerable leverage. The case’s precise implications for other uses of government leverage are unclear. But by saying that there is a limit to what the government may do in criminalizing agency costs, the judge has taken an important first step. I predict the opinion will be a landmark.

Read the entire post.

Richard Booth is the Marbury Research Professor of Law at the University of Maryland School of Law. In this fine Washington Post op-ed (hat tip Ted Frank), Professor Booth explains that the US securities fraud litigation framework is fundamentally flawed in that investors collectively end up worse off as a result of securities litigation and that a coherent system would protect reasonable investors (that is, ones who diversify their portfolios) rather than unreasonable ones (betting the farm on one company):

For diversified investors who do happen to trade during the fraud period, there are no benefits from class action suits over the long haul. A diversified investor is equally likely to be on the winning side of a given trade as on the losing side. Indeed, diversified investors are net losers from class action because of the costs of litigation. So it is no wonder that an investor would need a little inducement to sue.
Undiversified investors may suffer significantly more harm from securities fraud, possibly losing thier entire investment. But it does not follow that an undiversified investor should have a remedy if they voluntarily assume the unnecessary risk that goes with failure to diversify. Through diversification, an investor can eliminate the risk that goes with investing in a single stock without any sacrifice of expected return. The only risk that remains is market risk.
Moreover, . . . it is so cheap and easy for investors to diversify that it is simply unnecessary for investors to take company-specific risk. Given that the fundamental goal of investing is to generate the greatest possible return at the lowest possible risk, it is irrational for an investor, not to diversify.
The Supreme Court has clearly stated that securities law should be interpreted consistent with the needs of reasonable investors. Plaintiff class members should thus be presumed to be diversified and such actions should be dismissed for lack of harm . . .

Meanwhile, in the face of such lucid analysis, chief NY Times securities regulation advocate Gretchen Morgenson contributes to this article that breathlessly reports that the SEC may be firing employees who take up the good fight of attempting to protect unsuspecting investors from those shady hedge funds. The notion that anyone who invests in a hedge fund in the first place should not be unsuspecting (and, thus, not in need of government protection) is noticeably absent from Ms. Morgenson’s analysis.

Amidst a busy summer day, I pass along a rare and quick afternoon post on disparate results emanating earlier today from a couple of cases involving overreaching prosecutions of businesspeople.
First, Peter Lattman (here and here), Dave Hoffman and Ellen Podgor are doing standout instant analysis of U.S. District Judge Lewis Kaplan’s opinion issued earlier today rapping the knuckles of the Department of Justice for threatening KPMG with indictment in the KPMG tax shelter case unless the firm shirked its policy of paying the defense costs of partners who were indicted for work performed in the course of the firm’s tax shelter business (background posts here and here). As Professor Hoffman notes, Judge Kaplan is not ready to dismiss the indictment as the remedy for the prosecutorial abuse, so it appears that KPMG will be left holding the bag for the not insubstantial costs arising from the improper prosecutorial strongarming. That would not seem to be much of a deterrent for a prosecutor to engage in such tactics in the future, but maybe dismissal will be the remedy next time around when prosecutors engage in this sort of nonsense.
Meanwhile, following on this post from last week, the three former National Westminster Bank PLC bankers who Enron Task Force prosecutors are attempting to extradite to Houston to face criminal charges (previous posts here) lost their final appeal to halt or postpone the extradition as the European Court of Human Rights (ECHR) in Strasbourg rejected their request for a stay pending disposition of their appeal to that body. It is now likely that the NatWest Three will be extradited to Houston next month and detained in the Federal Detention Center in downtown Houston as they attempt to prepare for a trial in an unusually hostile environment.
You can bet that the Task Force’s reliance on a treaty of tenuous applicability to extradite the NatWest Three to a holding cell in downtown Houston is being followed closely by business interests in the UK. Is this really the way we want the US criminal justice system to be perceived internationally?

This Landon Thomas/NY Sunday Times article is the definitive report to date on the status of New York aspiring governor Eliot Spitzer’s lawsuit against former New York Stock Exchange chairman and CEO Richard Grasso (prior posts here) over Grasso’s $140 million pension from the NYSE. In short, the NYSE board was quite involved in Grasso’s compensation arrangements, although there is some question over how well the details of those arrangements were disclosed to the entire board. However, at the end of the day, the board members knew what they were doing, debated the merits of the package extensively and approved it. If this case were to be determined in accordance with the corporate case of the decade, then it would not even appear to be a close call — Grasso and the NYSE board wins.
So, you ask, what’s driving the lawsuit? Well, apart from the propaganda for Spitzer’s political campaign, Thomas reports that the NYSE has already incurred in excess of $40 million in legal fees and costs in defending Grasso and the other board members in the lawsuit. Inasmuch as the cost of defending the lawsuit will likely increase substantially by the time the case is resolved through either trial or settlement, the defense cost will likely be at least half again as large as Grasso’s pension itself. That cost is really just the regulation premium that firms should expect to pay if its board decisions on big ticket items do not pass muster with the Lord of Regulation. Can you imagine how high those regulation premiums will go when the Lord of Regulation is elevated to governor?

As noted in several earlier posts, the Enron Task Force’s prosecution of three former National Westminster Bank PLC bankers has raised a political firestorm in the United Kingdom.

The Task Force is attempting to use the 2003 Extradition Treaty signed with the US in the wake of the 9/11 attacks on New York and Washington, D.C. as the basis of extraditing the three former bankers to Houston to stand trial for allegedly bilking their former employer of $7.3 million in one of the schemes allegedly engineered by former Enron CFO Andrew Fastow and his right hand man, Michael Kopper.

According to this article from the Independent, the House of Lords refused on Wednesday to hear the NatWest Three’s challenge to the UK’s extradition treaty with the US, leaving the former bankers with only six days in which to appeal to the European Court of Human Rights in an attempt to avoid extradition to Houston.

If extradited to Houston, the NatWest Three could face incarceration in the Federal Detention Center pending a trial in an unfriendly environment that could send each of them to prison for over 20 years.

As noted in the prior posts, the NatWest Three are contending that the treaty that is the basis for the proposed extradition is unfairly slanted because the U.S. has not yet ratified the treaty while it is already being implemented in the U.K. Under the treaty, the U.S. government is no longer required to present a prima facie case against the former bankers and the Department of Justice may continue to challenge the evidence put forward in extradition requests while U.K. citizens who are subject to U.S. extradition requests have have no such parallel right.

Moreover, the NatWest Three point out that U.K. authorities have already investigated the matter and declined to pursue charges against the former bankers, and that the U.S. culture regarding Enron almost assures a conviction while, at worst, the three would be be facing either fines and light prison sentences if the case were prosecuted in the U.K.

However, the most damaging aspect of the NatWest Three case is the portrayal of the U.S. justice system in the U.K. and internationally as a wild frontier with no respect for due process of law. That portrayal is a natural byproduct of the criminalization of business mindset that elevates propaganda campaigns and prosecutorial misconduct over proof of criminal charges in a court of law.

Little wonder that the already high price of asserting innocence of business crimes in the U.S. justice system continues to rise.

Red Redding, Morgan Freeman’s character in The Shawshank Redemption, commented that “prison time is slow time” and that “prison life consists of routine, and then more routine.” Those observations are certainly true in regard to the resentencing of Jamie Olis.

The Fifth Circuit Court of Appeals set aside Olis’ original 24+ year sentence on October 31, 2005.

Since that time, Olis has spent most of his time in a small prison cell in the Federal Detention Center in downtown Houston waiting to be resentenced as the prosecution engaged in a series of delaying tactics over most of the past year relating to its new expert report on the key issue in Olis’ resentencing — the alleged market loss attributable to the criminal acts for which Olis was convicted.

Finally, yesterday afternoon, U.S. District Judge Sim Lake scheduled Olis’ resentencing hearing for September 12, 2006, almost 11 full months after the Fifth Circuit ordered it.

Although the Olis court docket indicates that the prosecution has still not filed its new expert report on the market loss issue, my sense is that some form of it has been provided to the Olis defense team because Judge Lake ordered Olis to respond to the prosecution’s report by August 18 and for the prosecution to file any reply by September 1.

Meanwhile, the sad case of Jamie Olis remains a stark reminder of the injustice that is inevitable when the state is allowed to use its overwhelming prosecutorial power to regulate corporate agency costs.

Three former natural gas traders pleaded guilty yesterday in San Francisco to conspiracy to manipulate the price of natural gas in interstate commerce in connection with criminal cases that are the same as federal prosecutors have pursued in Houston against former local traders. This previous post contains information on the Houston cases.
The three former traders admitted in their plea agreements that they conspired to report fictitious trades to Inside FERC, a natural gas industry newsletter, from roughly July 1, 2000 through Nov. 1, 2000 in an attempt to manipulate the published index prices of natural gas in the direction that would benefit their companies — Atlanta-based Mirant and Cincinnati-based Cinergy — natural gas positions in the market at the time. All three defendants entered into cooperation agreements with the Department of Justice and face up to five years in prison.
The guilty pleas resolve three more of over a dozen cases that the Justice Department has been pursuing in San Francisco and Houston in regard to alleged manipulation of natural gas trading indexes, which are used to value billions of dollars in gas contracts and derivatives. Industry publications such as Inside FERC use data from traders to calculate the index price of natural gas, which affects the level of profits that traders can generate. However, in each of these cases, it remains unclear in what context the allegedly false information was transmitted or whether the publication even used any false information. The government’s theory of criminal liability is that it needs only to prove that fake trades were reported to the publications and not that the trades were actually published or affected the markets.
Most of the traders charged in these cases have pled guilty under cooperation agreements with the DOJ, but several others are fighting the charges and currently awaiting trial, including former Dynegy trader Michelle Valencia and former El Paso trader Greg Singleton. Jury selection in the case against Valencia and Singleton is currently scheduled to begin on July 5, 2006 at 9 a.m. in U.S. District Judge Nancy F. Atlas’ court in Houston.

Covering local business scandals and all, there has not been much time to address certain regulators and media members’ attempts to make the apparent widespread practice of backdating stock options (see this WSJ ($) chart of companies that engaged in the practice) as the next reason to bash business interests.
Inasmuch as the practice is really just another method of providing compensation to corporate executives, the issues surrounding the practice appear to be relatively straightforward — whether the options were properly disclosed (if so, then no big deal; if not, then that’s bad) and whether companies properly accounted for them. Clear thinkers favorite Stephen Bainbridge agrees while breaking down the issues pertaining to backdating options in this TCS Daily op-ed (blog post here):

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This Justin Scheck/The Recorder article reports on the latest development in the criminal investigation into Milberg Weiss Bershad & Schulman — the apparent willingness of the former wife of one of Milberg Weiss’ favorite expert witnesses to testify that the firm — and perhaps even name partners Melvyn Weiss and William Lerach — improperly used money it recovered in class action securities fraud lawsuits to supplement her ex-husband’s compensation for his work in prior cases.
The expert involved is John B. Torkelsen, a former financial analyst from Princeton, N.J., who made millions from this testimony in numerous cases as an expert on shareholder damages in Milberg Weiss class actions during the 1980s and 1990s. Torkelsen’s ex-wife, Pamela, reportedly agreed to provide evidence against Milberg Weiss and former husband after she pled guilty last year in a Washington federal court to assisting in the theft of $1.9 million from a venture-capital partnership. The speculation is that Mrs. Torkelsen is a possible link to Weiss and Lerach because Mr. Torkelsen was an expert witness in a number of cases personally handled by Weiss and Lerach. Mrs. Torkelsen’s sentencing in the Acorn matter has apparently been delayed for more than a year because of her cooperation in the Milberg Weiss investigation.
Meanwhile, it’s getting a bit difficult to find a judge for the Milberg Weiss criminal case — this New York Sun article reports that the fifth judge has recused himself from handling the case, while this NY Times article reports that Congressional Democrats are getting in gear to defend Weiss, who is a prominent Democratic Party fundraiser.