The Second Circuit Was Wrong in Reversing Ex-Deutsche Bank Traders’ Libor Convictions

On January 27, in United States v. Connolly, the U.S. Court of Appeals for the Second Circuit misstated and misapplied the law of fraud in reversing the criminal convictions of former Deutsche Bank traders Matthew Connolly and Gavin Black.  The court’s order of acquittals over the findings of a jury and following a diligently fair trial was especially unfortunate given how difficult it is for the government to prove criminal conduct in the trading divisions of large global financial institutions.

The Connolly case was one of numerous prosecutions in the United States and the United Kingdom that charged traders … Read more

The Fuel that Runs the Corporate Investigation Machine

The United States pursues more successful corporate criminal enforcement actions against large multi-national firms than any other country, collecting enormous penalties and occupying center stage in the global enforcement arena. U.S. dominance draws its horsepower and its torque from two sources.  The first, of course, is an extremely broad and easy to apply corporate liability rule: respondeat superior.  Under this rule, corporations are liable for all crimes committed by their employees in the scope of employment with some intent to benefit the firm. The second is the power granted to prosecutors to negotiate and settle cases, most often through … Read more

Corporate Managers and Crime

Perhaps not since the early 20th century has there been so much outrage about the malfeasance of the large corporation, and particularly the relationship of senior managers to such conduct. The sentiment is understandable. In reckoning with the wrongs of the big business firm in one serious case after another, a responsibility gap has emerged. The financial crisis of 2008 crystallized the problem, which has only repeated across many scandals since.

Consider, for example, the huge banking firm Wells Fargo, which became an emblem of the seeming impossibility of controlling management of big financial services corporations. The bank fired over … Read more

America’s Corporate Crime Dilemma

Corporate crime has never been a more pressing, vexing, and at times infuriating topic for Americans than at present.  The subject’s many difficulties both are fascinating and, at every turn, defy easy answer.  The ambition of my new book, Capital Offenses: Business Crime and Punishment in America’s Corporate Age (W.W. Norton & Co.), is to illustrate and explain, in plain language accessible to all readers, the dilemma of corporate crime—as a means to point Americans beyond criminal law and into a deeper examination of our relationship with the large modern corporation.

Consider the case of Candice Anderson of Van Zandt … Read more

Insider Trading Law in Deeper Waters

Everyone can thank Preet Bharara for one thing. His swath of insider trading prosecutions is forcing amplification of the law, especially the criminal law of insider trading. That body of law has been underdeveloped and at times stagnant. The Second Circuit’s important decision in United States v. Newman, however, shows that the common law process doesn’t necessarily lead to calmer waters.

Part of this is inevitable. The law of insider trading never had the intellectual heft to withstand sustained pressure in the form of large numbers of criminal prosecutions, which place special demands on the law because of their … Read more