Free Speech, Due Process and Trial by Jury
Regulatory/investigations are near the top of the list of litigation concerns for senior in-house counsel, and more time is being spent on government or regulatory investigations in company legal departments.
A federal jury has nixed an attempt by a Los Angeles art gallery to do an end-run around the Robert Allen Stanford receivership claims process and recover nearly $3 million that it provided the imprisoned Houston billionaire’s empire for the purchase of 100 gold bars.
Dallas billionaire investor Sam Wyly wrote in his book 1,000 Dollars and an Idea that “the world owes a debt of gratitude” to junk bond king Michael Milken. Wyly is now on trial in the very same federal courthouse in New York where Milken pleaded guilty 24 years ago this month to financial fraud and insider trading. The SEC accuses Wyly and the estate of his deceased brother, Charles Wyly, of profiting more than $550 million from an elaborate fraud that violated insider-trading laws through the use of offshore trust accounts. Securities lawyers in Texas say the SEC has a lot riding on the outcome of the trial.
As Tom Melsheimer gave his closing argument to the jury last October, his client slipped him a piece a paper. “He wanted me to tell something to the jury,” Melsheimer said. “He’s Mark Cuban, so I told it to the jury.” Melsheimer’s comments were part of a 90-minute CLE program hosted Thursday evening by The Texas Lawbook, SMU Dedman School of Law and the General Counsel Forum. The program, which also featured Cuban Companies General Counsel Robert Hart, litigation consultant Jason Barnes, Bell Nunnally white-collar defense expert Jeff Ansley and SMU Dedman law professor Linda Eads, focused on behind-the-scenes moments involving the U.S. Securities and Exchange Commission’s insider trading trial against Cuban.
Imagine you are a respected businessman or licensed professional but you suddenly learn through media reports that you are under investigation for fraud. Nothing has been proven but the federal government, without warning, convinces a judge to freeze all of your and your family’s assets.
(December 12) – While trials before a jury of one’s peers are increasingly rare as big business interests push mandatory arbitration clauses and tort reform measures are narrowing access to courts, it’s important to note that Cuban’s case shows that the jury system, although battered, remains a powerful public resource that is alive and well in the 21st century.
The SEC received 135 tips in 2013 from Texans blowing the whistle on bosses or business partners for possible fraud.
Twenty-five agents of the U.S. Securities and Exchange Commission invade Houston next week to conduct dozens of financial examinations of broker-dealers and investment advisors that either haven’t been audited in many years or, in many instances, ever. The SEC is launching a weeklong Houston initiative in an effort to raise the agency’s profile by holding open door educational seminars and meet-and-greet opportunities with senior SEC leaders, as well as conducting as many as 40 intensive in-person examinations.
(October 25) – Senior U.S. Securities and Exchange Commission officials said recently that the agency will increase its use of administrative law proceedings in lieu of federal district court actions. The SEC's success rate before ALJs is statistically higher than in federal enforcement actions. Skeptics would point out that this is hardly surprising, given that the ALJs are employed by the SEC.
After nearly three and a half hours of deliberation, nine jurors found Dallas billionaire Mark Cuban innocent of insider trading Wednesday afternoon. The verdict marks the end of the three-week trial, just days before the federal courts will run out of cash if the government shutdown continues. The six-year legal battle is likely the most expensive case the SEC has ever taken to trial. The heart of the dispute dates back to 2004 when Cuban had an eight-minute phone conversation with Mamma.com CEO Guy Fauré. During the call, Fauré asked Cuban if he wanted to participate in a private placement investment the company was conducting to raise capital. During a recorded video deposition, Fauré testified he began the conversation saying, “Mark, I’ve got confidential information,” to which Fauré said Cuban replied, “Uh-huh, okay, go ahead.” Cuban testified he doesn’t recall anything from the conversation except that he was angry. Fauré said in his deposition that at the end of the call, Cuban said, “Well, now I’m screwed. I can’t sell.” The infamous statement was a key piece of the SEC’s argument that Cuban recognized that the information he received was confidential and that he could not trade on it until after it went public. Throughout the trial, Cuban denied that the information he received was confidential, that he agreed to keep it confidential and that he agreed to restrict trading. "People who wanted access to that information could get it," the expert witness said. The Texas Lawbook is in the courtroom for every minute of the SEC's insider trading trial against Mark Cuban and we have full details.
Scott Kimpel and Cam Zachry provide insight into SEC operations if there's a government shut and how it impacts public companies.
Travis Tygart says there is tremendous pressure today – be it on athletes and business leaders – to do whatever it takes to win, including cheating.
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