Three strikes and your out may be a good rule for games like baseball, but not for federal criminal trials. Yet that is the result in U.S. v. Forbes, the federal criminal trial of Walter A. Forbes, former chairman of Cendant Corporation. Yesterday a jury in federal District court in Bridgeport, Connecticut found Mr. Forbes guilty of two counts of conspiracy and two counts of submitting file reports to the SEC. Mr. Forbes was found not guilty on a fourth count of securities fraud.

Government prosecutors proclaimed that “Justice was served” according to an article in the New York Times today. But is was it? In two prior attempts the government failed to convict Mr. Forbes. The first trial lasted eight moths. Jurors were unable to reach a verdict after 33 days. After the second trial jurors deliberated for 27 days and were unable to reach a verdict. In those two trials jurors deliberated a total of 60 days. No doubt the government presented every bit of evidence it could muster to support a conviction in each trial. No doubt the jurors carefully went over every speck of evidence. Yet they were unable to reach a verdict.

Now eight years and three trials later the government was finally able to get the verdict it wanted. Federal criminal trials are suppose to be about the government proving its case beyond a reasonable doubt. If not there is a failure of proof.   While judges routinely reject post trial motions for acquittal arguing that a hung jury demonstrates reasonable doubt, there is something unseemly about the federal government doggedly pursuing someone like the energizer bunny, year after year and trial after trial until they finally happen onto the result they want. With the vast investigative resources available to federal prosecutors and the charging discretion to shape a case that they can prove –and the ability to make a plea offer that can not be refused when the case goes south — there should be no excuse for the government to use energizer bunny tactics to get a conviction. Three strikes and your out is a good rule for baseball, but not federal criminal trials.

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Yesterday’s enforcement action against now bankrupt auto parts giant Delphi brings together two of the SEC’s key enforcement policy statements, the Seaboard Release on cooperation and the January 2005 statement on Corporate Penalties. The partially settled enforcement action was brought against Delphi and thirteen former employees including the former CEO, CFO, Chief Accounting officer and others. The action alleged a pattern of financial fraud to increase earnings:

1) Two schemes in 2000 which increased net income by $202 million by hiding a $237 million warranty claim;2) Two improper inventory schemes in 2000 to increase reported income by $80 million, reduce inventory by $270 million and inflate cash flow by $200 by “round tripping” certain inventory, that is agreeing to sell it with a guaranteed right of return the next quarter with interest and structuring fees;3) A $20 million lump sum payment from an IT company which was in substance a loan but which was booked it as a nonrefundable rebate o past business in 2001;

4) The improper increasing in 2003 and 2004 of its Street Net Liquidity, a non-GAAP pro forma measure of financial performance used by investors and others, by hiding up to $325 million in factoring or sales accounts receivables. In one quarter the company also boosted its Street Operating Cash Flow by $30 million by manipulating the hidden factoring.

The company consented to the entry of a statutory injunction prohibiting future violations of the antifraud and books and records provisions of the securities laws. No fine was imposed.

In addition, the following settlements were entered into with former employees:

A) Alan Dawes, former CFO consented to a 5 year officer and director bar, to pay disgorgement and prejudgment interest and a penalty as well as the entry of a statutory injunction prohibiting violations of the antifraud and record keeping provisions of the securities laws;

B) Atul Pasricha, former Assistant Treasurer, consented to pay a penalty and a statutory injunction prohibiting him from aiding and abetting violations of the record keeping provisions.

C) B.N. Bahadur, principle of a private management consulting company, agreed to pay disgorgement with prejudgment interest and a penalty and to the institution of a settled C&D proceeding in which he was ordered to cease and desist from committing or causing violations of the antifraud and reporting provisions.

D) Laura Marion, former Director of Financial Accounting and Reporting at Delphi agreed to pay a penalty and to the institution of a settled C&D proceeding in which she was ordered to cease and desist from committing or causing violations of the antifraud and reporting provisions.

E) Stuart Doyle, former client executive for the IT company (see # 3 above) agreed to pay a penalty and to the institution of a settled C&D proceeding in which he was ordered to cease and desist from committing or causing violations of the antifraud and reporting provisions.

Enforcement Chief Linda Thomsen said that the case demonstrated that the “Commission will take strong action when a company and its officers engage in accounting fraud. . . ..” and that the case was particularly troubling because of the number of fraudulent schemes the company engaged in and the length of time involved. At the same time however Associate Enforcement Director Fredric Firestone said that the settlement with the company was consistent with the SEC’s statement on financial penalties for organizations, citing the company’s cooperation and remedial efforts as the reason for not imposing a penalty.

What is perhaps most interesting about the case is the settlements viewed in the context of the Seaboard Release on Penalties for Organizations. The former of course has been much discussed in view of the KPMG tax case holding portions of the Thompson memo (the DOJ analog to the Seaboard Release) unconstitutional and the recent pronouncements of the ABA and others decrying the “culture of waiver” the SEC and DOJ cooperation standards are creating. The Seaboard Release notes in part that key considerations included the scope of the fraud, how high up it went in the organization and how long it went one, reflecting to some extent the comments of Linda Thomson. The Release on Penalties focused in part on the benefit received by the company and the impact on shareholders, factors not mentioned by Associate Enforcement Director Firestone in explaining the reason no fine was imposed. Nowhere is there any mention of the company furnishing the SEC with the results of an internal investigation or waiving the attorney client privilege or work product doctrine, factors mentioned in the Seaboard Release.

Reading the comments of Ms. Thomsen together with those of Mr. Firestone suggests that perhaps even where there is a systematic, long term fraud which reaches to the highest levels of the company, the SEC may be willing to consider waiving remedies like disgorgement, prejudgment interest and penalties as to the company where the company cooperates and takes adequate remedial steps even absent a waiver of the attorney client privilege. Perhaps this is consistent with the recent statement of SEC Commissioner Atkins noting that the staff should not request waivers of privilege. If so this would be a welcome relief to the “culture of waiver.” We will have to wait and see if this is in fact the case.

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