Throughout the week over at Securities Docket I highlight the most interesting columns and blog posts from around the web on the subjects of SEC enforcement and securities litigation. Here is a digest of my picks for the week ending June 8.
Judge Rakoff: A hot bench
The financial crisis has placed the muddled state of corporate law in America under intense scrutiny. Jed Rakoff, the judge in the current insider-trading case against Rajat Gupta, a former managing director of McKinsey, has emerged as an important player in this process. The 68-year-old judge is technically on “senior status” in the federal district court, meaning he can elect to work reduced hours. But there is nothing half-hearted about Mr Rakoff's approach. He is a powerful presence in a courtroom, and even more so in a string of recent opinions that underscore the contradictions in American regulation.
To Encourage the Others?: Imposing Personal Liability for Corporate Fines on Individual Officers
Kevin LaCroix, The D & O Diary
I appreciate that many believe corporate executives need to be held more accountable. Nevertheless, I am concerned that as a result of the increased tendency to try to impose liability on corporate executives without culpability, there is a contrary danger that corporate executives could be held liable too frequently, or at least in instances when they have done nothing themselves to deserve it. Scapegoating any individual – even a highly paid investment banker – for circumstances in which they were not involved and of which they were not even aware is inconsistent with some of the most basic assumptions of a well-ordered society governed by law.
Dim Prospects for Financial Crisis Prosecutions
Peter J. Henning, DealBook
As has been noted many times, the lack of criminal prosecutions arising out of the financial crisis has been painfully obvious. And two items in the news last week underscores that the prospect for a signature case is growing even more distant.
Why plaintiffs' lawyers would rather sue Facebook than JPMorgan
Alison Frankel, On the Case
But there are two reasons why I think plaintiffs' lawyers are more excited about their prospects in the Facebook IPO litigation than in the JPMorgan case: scienter and damages….
In the IPO litigation, on the other hand, there's no need to show scienter because the complaints assert claims under Sections 11 and 12 of the Securities Act of 1933, which involve disclosures in offering documents. As Steven Davidoff and Peter Henning explained in a terrific piece in DealBook on exposure from the Facebook IPO, those claims entail strict liability: If there were material misstatements, Facebook and the underwriters are on the hook….