Judge Rakoff, the Justice Department, and Corporate Crime: Lack of Will or Lack of Cause?

• Publication year: 2014

Judge Rakoff, the Justice Department, and Corporate Crime: Lack of Will or Lack of Cause?

Michael Wiseman

JUDGE RAKOFF, THE JUSTICE DEPARTMENT, AND CORPORATE CRIME: LACK OF WILL OR LACK OF CAUSE?

Is Judge Rakoff right? In the wake of the Great Recession, has the Justice Department neglected its duty to prosecute officers of financial institutions, or are prosecutorial options insufficient under current law?¹

The salient corollary to those questions is whether the financial sector has re-stabilized to the extent where individuals, if not financial institutions themselves, might bear a bit of criminal culpability for the collapse. If so, then as Judge Rakoff puts it, the question that prosecutors must ask is whether "[the Great Recession was] the result, at least in part, of fraudulent practices, of dubious mortgages portrayed as sound risks and packaged into ever more esoteric financial instruments, the fundamental weaknesses of which were intentionally obscured?"²

Enter Rule 10b-5, a Securities and Exchange Commission regulation that provides a possible prosecutorial option with which to attack the banks for willful violations that might include misbranding AAA-rated collateralized debt obligations (CDOs), or improperly influencing the credit rating agencies.³ However, some claim that sophisticated disclosure provisions included in investment documents either neutralize 10b-5's disclosure requirements regarding the quality of the financial instruments, or qualify the nature of those

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investments to the extent where the seller sidesteps actual deception.⁴ Regardless of whether these provisions put parties on actual notice, the penultimate deals to the 2008 crash spelled ruin for many purchasers of these instruments. In order to rid the largest banks of their most risky investments, top-rated CDOs were bought and sold in a high-stakes game of hot potato. When the CDOs were ultimately downgraded to junk status, the purchasing institutions were left with worthless investments, and losses into the hundreds of millions.⁵ Caveat emptor.

Lanny Breuer, the former head of the Department of Justice's Criminal Division, stated in a 2012 interview with Frontline that the Department of Justice had given Wall Street a "hard look" and investigated suspected crimes related to the crisis.⁶ Breuer continued, "when we cannot prove beyond a reasonable doubt that there was criminal intent, then we have a constitutional duty not to bring those cases."⁷ But intent alone is insufficient; reliance is required as well. "In a criminal case . . . I have to prove not only that you made a false statement but that you intended to commit a crime, and also that the other side of the transaction relied on what you were saying."⁸ To Breuer, the fatal insufficiency was the lack of reliance by sophisticated Wall Street buyers, their attorneys and accountants. "[T]he reality is, if a Wall Street executive was involved in a transaction, and on the other side of that transaction was another Wall Street executive, and they both had sophisticated lawyers and they both had sophisticated disclosure documents, as much as the conduct is reprehensible . . . that is not what makes a criminal case."⁹

Breuer may have been construing the materiality requirement of Rule 10b-5(b)¹⁰ to ask whether a reasonable investor thought the disclosures were important enough to discount the credit rating. This is an amazing idea— nothing supports this. It is rebuttable on the fraud-on-the-market theory

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alone.¹¹ Judge Rakoff agrees. In a January 2014 article in the New York Review of Books, Judge Rakoff takes Breuer to task and succinctly argues that reliance is nowhere an element in criminal law.¹² Although Breuer's statement seems to echo the law for private actions brought under Rule 10b-5 and its concomitant common law requirement that in order for deceptive packaging to constitute fraud, the buyer had to actually believe the label,¹³ perhaps he instead meant that there could be no deceit or manipulation of the market if all the players knew the CDOs were not really AAA quality. Even if the parties were fully aware of the risks involved in these transactions, another underlying question persists. Should disclosure or common knowledge truly mitigate behavior that severely strained the system and helped cause the recession? The logical next question is whether individual prosecutions or alternative regulatory approaches might curb future abuses.

A. The Shift to Deferred Prosecution Agreements and the Frustrating Lack of Individual Prosecutions

When agents of a financial institution commit criminal acts while acting within the scope of their duties with intent to benefit the institution, the institution may be held criminally liable under the doctrine of respondeat superior.¹⁴ The mere possibility of an indictment can seriously imperil the firm. For example, government licenses and contracts could be revoked, accelerated debt repayment provisions might kick in under existing loan covenants, investors might exit, employees might lose jobs, and the institution itself might fail. The benchmark horrible is Arthur Andersen.¹⁵ A more recent and perhaps less sympathetic example of another type of business entity that

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was indicted for systemic violations, S.A.C. Capital Advisors, L.P., has been rebranded and reduced to trading one private account, that of its founder, Steven A. Cohen.¹⁶

In light of these dangers, and even prior to the recession, deferred or non-prosecution agreements have become a favored tool among prosecutors.¹⁷ These agreements allow corporations to avoid an indictment in return for the payment of fines, the institution of compliance procedures and monitors, and enhanced cooperation with the Justice Department.¹⁸ This new norm posits a role for the Department of Justice where they essentially become the new regulators for corporate behavior.¹⁹ The threat of indictment, which would cause the loss of government licenses and permits, coupled with the compliance strictures of these agreements, which generally require the entity to "enact substantial internal reforms" in return for the dismissal of charges, allows the government to reform corporate governance.²⁰ This is in contrast to the retroactive effects of a criminal prosecution and...