The SEC is facing another dilemma in Judge Rakoff’s courtroom in the Southern District of New York. The question this time does not involve SEC v. Bank of America, discussed here, which is on its way to trial. This dilemma involves its recently filed insider trading case against Galleon Group and Raj Rajaratnam. This time, the U.S. attorney’s office is involved along with its two insider trading cases against Mr. Rajaratnam and others, discussed here. Judge Rakoff, it seems, thinks the SEC filed its case to litigate. He has ordered the Commission to be ready for trial in five months.
The SEC probably has less interest in taking Galleon
to trial in five months than it has in trying Bank of America. Typically, the
Commission expects the U.S. Attorney's Office to seek intervention in the civil
enforcement action and request a stay in deference to the criminal case. The
SEC does not object in this all very typical scenario. If done here, after all,
the agency will have joined with the U.S. Attorney's Office, filed a lengthy
complaint accusing the defendants of insider trading, participated in a press
conference and issued a press release, yet will not have to proceed to a trial
until after the criminal matter is tried.
The government's motion for a stay of a parallel SEC
case is typically granted. Yet, permitting both actions to move forward has
good and bad points for both sides. To be sure, if both cases go forward, the
SEC defendants will use the broader civil discovery provisions to unveil part
of the government's criminal case. That may eventually aid them when the
criminal case goes to trial.
There are however, disadvantages for the defendants.
In the criminal case, they can invoke the Fifth Amendment and not testify. The
defendants can also elect to watch the government put on its case before making
a decision on whether to testify. In contrast, if there is civil discovery the
SEC may take the deposition of the defendants, forcing them to make a decision
on whether to testify before seeing the evidence in the criminal case. If the
defendants may elect to invoke their Fifth Amendment rights, the SEC can seek
an adverse inference which is not available in the criminal case. That
inference can help the Commission establish liability in the civil case. Thus,
parallel criminal and civil cases present opportunities and pitfalls for both
All of this however, neglects the critical question
at stake here which is fundamental fairness in law enforcement. The USAO and
the SEC can choose when to bring their respective cases. If they do not want
those cases to proceed simultaneously, they can elect to file them in sequence,
one going forward to completion followed by the filing and litigation of the
other. In most cases there is no reason for the USAO and the SEC to file their
cases together and then move to stay the SEC case.
It is fundamentally unfair for a law enforcement
agency to file a case which accuses a citizen of wrong doing, trumpet its
claims in press conferences and a press release and then move to stay. This
tactic silences the defendant, denying him or her the right to contest and refute
the claims and charges. As the court stated in U.S. v. Reyes, No. 06-0556 (N.D.
Cal. Oct 4, 2006) when denying a government request for a stay, it "appears to
me that when the SEC decides they want to charge people with violations of the
law . . . they invite . . . the defense to respond . . . I don't really
appreciate the fundamental fairness [of a stay] . . ."
If either the USAO or the SEC has no intention of
litigating the charges brought in their respective complaints, then the actions
should not be filed. Cases are filed in court to resolve claims, not make
allegations which cannot be refuted while serving as vehicles for holding press
conferences and issuing press releases. Law enforcement should be about
enforcing the law and protecting the rights of citizens - all citizens
including the accused - not headlines.