Feds Set Sights on ‘Gatekeepers’ in Fraud Investigations

Joe Palazzolo
Legal Times

Federal law enforcement officials said Wednesday they are targeting lawyers, mortgage brokers, real estate brokers and other “gatekeepers” who perpetrated fraud that contributed to the current economic crisis — a clear warning shot as the federal government is pumping billions of dollars into the financial sector.

“They have the most to lose, they’re the most likely to flip, and they make the best examples,” said Neil Barofsky, the special inspector general for the Troubled Assets Relief Program, during a congressional hearing on fraud enforcement. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., was even more blunt: “I want to see these people prosecuted,” he said. “Frankly, I want to see them go to jail.” The hearing was meant to underscore the need for more law enforcement resources amid an upsurge in mortgage and corporate fraud investigations.

Leahy and Sen. Charles Grassley, R-Iowa, have introduced a bill that would expand the scope of federal fraud laws and provide funding for more prosecutors and investigators. FBI Deputy Director John Pistole told the committee that mortgage fraud investigations nearly doubled in the last two years to more than 1,600 in 2008. The bureau, he said, has more than 530 corporate fraud investigations open, including 38 directly related to the current financial crisis.

Pistole said he could see that number potentially rising into the hundreds. But federal law enforcers could do much more with additional resources, he said, pointing to the Justice Department’s successes in the wake of the savings-and-loan crisis of the 1980s. At the time, 1,000 agents and forensic investigators and dozens of federal prosecutors were devoted to the effort, which produced more than 600 convictions and $130 million in restitution. Compared to the $160 million lost during the S&L crisis, the current situation is far more dire, with financial institutions globally reducing their assets by more than $1 trillion.  But the Justice Department’s focus on national security has diminished the fraud ranks.

Pistole said 240 agents, supplemented by investigators from other agencies, are working on fraud cases stemming from the economic crisis. Rita Glavin, acting head of the Justice Department’s Criminal Division, said the department was in discussions with Barofsky about how best to handle criminal referrals and prosecutions when his office uncovers wrongdoing. She also said the Justice Department’s fraud section had created a mortgage fraud working group, with a collection of other enforcement agencies. Sen. Sheldon Whitehouse, D-R.I., asked Glavin whether DOJ had any designs for a nationwide mortgage fraud taskforce. Then-Attorney General Michael Mukasey repeatedly rejected the idea, saying individual U.S. Attorneys’ Offices were better equipped to handle the work. Glavin said the department was studying the issue. “No decision has been made with respect to that,” she said.

E-Discovery Trends in 2009 — New developments in e-discovery will affect enterprise general counsel and compliance officers, law firms serving corporate clients, and IT departments

By Christine Taylor, January 9, 2008, 12:10 PM

A few years ago, the Taneja Group coined the term “Information Classification and Management” (ICM) to describe the technology of locating and classifying data throughout the enterprise. ICM covered sub-technology sectors such as e-discovery, compliance, data security control, and data management. However, we saw the term “e-discovery” trump the more comprehensive name as rabid attention turned from ICM to the specifics of civil litigation software tools. We are now seeing the e-discovery term itself take on a fuller usage, more akin to ICM. People do use the term when talking about civil litigation, but are also expanding it to encompass compliance, corporate governance, data classification, and even knowledge management.

In this broad sense we have looked at the trends of the e-discovery market as they impact its largest stakeholders: the enterprise general counsel and compliance officers, law firms serving corporate clients, and IT.

The crux of the matter is that e-discovery and its related areas will be extremely hot for litigation and compliance, especially those related to the financial meltdown. The market increasingly understands the necessity of e-discovery software tools and systems, and will move toward proactive e-discovery adoption. A more reactive approach will remain alive and well as many companies will still avoid implementation until driven to it by a lawsuit or federal investigation. But companies will increasingly understand that the e-discovery solution phenomenon is much more than a litigation aid. It also has major effects on federal compliance and internal governance, and potentially on data management throughout the enterprise.

For more see byteandswitch.com.

E-Discovery Requirements Are About to Hit Canadian Firms

As Canadian firms brace for new e-discovery rules, they can look to their U.S. counterparts for technology lessons.

By Anne Rawland Gabriel

Time is growing short for Canadian securities firms to prepare for the scheduled April enforcement of the new Canadian National Instrument 31-103 (NI 31-103), regulation that significantly expands record keeping requirements for electronic communications. Fortunately NI 31-103 substantively mirrors U.S. regulations already in place, which means Canadian firms have the opportunity to learn from others’ experiences.

“NI 31-103 is very similar to SEC and FINRA requirements in the U.S.,” substantiates Carolyn DiCenzo, a Gartner research VP. “It’s important to remember that the spirit of the law is communications and not just one particular type of communication, such as e-mail or instant messaging.”

For more see wallstreetandtech.com.

Obama Administration Could Mean More Compliance Regs

January 5, 2009
By Drew Robb

Just as accounting scandals earlier this decade led to new regulations like Sarbanes-Oxley, last year’s global financial meltdown coupled with Democratic control of the White House and Congress seems like a recipe for a host of new compliance regulations — and thus more business for storage vendors and more work for storage administrators.

But the changes won’t stop with an Obama presidency and the 111th Congress. The leaders of the Group of 20 industrial and emerging countries (G-20) have been meeting to consider global regulations aimed at raising bank capital standards and regulating hedge funds, with European leaders at the forefront of the new financial market regulation.  While it might be years before all this results in any kind of international consensus, another round of regulation is almost certainly at hand.

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SOX and other regulations like FRCP stimulated interest in the archive and nearline disk market and exposed tape media’s shortcomings for meeting search and audit requests.

“Generally, additional regulation mandates that organizations have to demonstrate their ability to reproduce transactional records within a specified timeframe when requested,” said Brian Kelly, an executive at Ernst and Young Global Ltd. “After the failure of some major organizations to respond to such audit requests, an overhaul of the archival process was mandatory.”

For more see enterprisestorageforum.com.

Welcome to 2009: the year of the regulator

Michael Herman

British businesses will have to navigate a “regulatory minefield” in 2009 as global law enforcement agencies and regulators step up activity in response to the economic downturn, leading lawyers warn.

Neil Gerrard, head of the regulatory and litigation practice at DLA Piper, said: “I have no hesitation in calling the developing situation a regulatory minefield – and this is not an exaggeration. We are operating in an unprecedented time of financial pressures and market volatility and the authorities are more determined than ever that everyone will play by the rules.”

Mr Gerrard’s comments, which are echoed across the legal industry, follow an intense burst of regulatory activity in 2008. Last year saw the Financial Services Authority (FSA) launch its maiden criminal prosecutions for insider dealing and forging documents as well as tens of civil cases for market abuse and other offences. It also saw the Office of Fair Trading (OFT) launch its first criminal price-fixing prosecutions and levy record fines on businesses for breaking competition rules. Elsewhere the Serious Fraud Office (SFO), HM Revenue and Customs and the Health and Safety Executive all announced major investigations against British businesses and individuals.

Robert Wardle, former director of the SFO and a consultant at DLA Piper, said the aftermath of the credit crunch would create a particular focus: “We live in a fast changing world and have witnessed drastic and irreversible changes to our financial sector this year with the effects due to continue well into the new year and into the next decade,” he said.

Related Links

• City regulators probe Madoff’s London firm

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“In the UK, the SFO has already announced a 50 per cent increase in investigations planned for 2009, whilst the FSA and City of London Police are keen to show that London is no soft touch on regulatory enforcement,” Mr Wardle added.

Although experts are divided over whether there is an increase in the actual level of corporate crime committed during an economic downturn, they are united in the belief that the level of such crime which is discovered always surges when times are tough. “When credit dries up and management changes, fraud comes to light,” Mr Wardle said, “There will be lots of material for regulators to look at it in 2009.”

As well as having more material to investigate, regulators and prosecutors will have the benefit of new tools to help pursue wrongdoing. In particular, Mr Wardle points out that the current recession is the first for which the Fraud Act 2006 will be in effect. In addition to simplifying the offence of fraud, the act also criminalises new practices such as making false representations and failing to disclose information, making it easier to prosecute behaviour that previously slipped outside the definition of fraud.

For more see timesonline.com.

25 Percent of Reported E-Discovery Opinions in 2008 Involved Sanctions Issues

Sheri Qualters
The National Law Journal
December 17, 2008

One-quarter of the reported electronic discovery opinions issued in the first 10 months of the year involved sanctions issues, according to a new Kroll Ontrack Inc. study.

The Kroll Ontrack software division of risk consultant Kroll Inc. analyzed 138 reported cases from January through October 2008 for the study. Also, according to the analysis, 13 percent of cases addressed preservation and spoliation issues; 12 percent involved computer forensics protocols and experts; 11 percent addressed admissibility; and 7 percent of cases involved privilege considerations and waivers.

The cases illustrate that judges frequently issue sanctions for mishandling of electronic discovery and lack of document retention policies, said Michele Lange, Kroll Ontrack’s director of legal technologies, in a statement. “It is clear that courts are no longer allowing parties to plead ignorance when it comes to [electronic discovery] best practices.”

Kroll Ontrack’s study detailed several decisions, including a federal court decision in the Northern District of California that required defendants to pay more than $250,000 in fees and costs for discovery conduct “among the most egregious this court has seen,” according to an Aug. 12 opinion by U.S. Magistrate Judge Elizabeth D. Laporte. Keithley v. The Home Store.Com Inc., No. 3:03-cv-04447 (N.D. Calif.).

GCs: In-House Life Overloaded With Meetings, Bureaucracy

Katheryn Hayes Tucker
Fulton County Daily Report

Establishing trust with businesspeople is a key to success for a general counsel, according to a panel of GCs who offered advice and tips in a program for the Association of Corporate Counsel Georgia chapter last week at the Cumberland Maggiano’s Little Italy.

Keith Scott, senior managing attorney for Rollins Inc., parent of Orkin Exterminating, said when he joined the company 11 years ago, his first assignment was to spend a hot June day in Florida drilling holes in concrete to insert chemicals to kill termites. He said he quickly developed empathy for people working in other departments of the business.

Teresa T. Kennedy, assistant general counsel for Cox Communications Inc., said she studied the culture of the company and the different departments within it to learn how to communicate. She also learned to follow the word “no,” with “but…” and offer alternatives when she had a legal issue with a business goal.

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For more see Fulton County Daily Report (via Law.com).

Microsoft Fires CIO For Alleged Policy Violations

Microsoft Corp. said it fired its chief information officer for violating company policies but declined to provide details.  In a statement the company said Stuart Scott was “terminated after an investigation for violation of company policies,” declining to comment further. His firing was reported by ZDNet’s Web site.

What’s Behind the Drop in Corporate Fraud Indictments? Is there no more corporate crime — or has Justice simply stopped looking for it?

Daphne Eviatar
The American Lawyer
November 1, 2007

In his summer of discontent, there were few days of undiluted glory for Attorney General Alberto Gonzales, and July 17 was no exception. Just six weeks before he resigned, Gonzales stood before hundreds of federal prosecutors and investigators in the U.S. Department of Justice’s Great Hall to celebrate the fifth anniversary of the department’s Corporate Fraud Task Force and declare victory over white-collar corruption.

But the white-collar crime news that day was not dominated by Gonzales’ recitation of notches on his prosecutorial belt. Instead, the headlines focused on a federal judge in New York who dismissed indictments against 13 former KPMG executives, a very pointed rebuke to the Justice Department for some of the more aggressive tactics used by federal prosecutors over the past five years.

CHIEF LEGAL OFFICERS PUTTING HIGH PRIORITY ON RECORDS AND INFORMATION MANAGEMENT COMPLIANCE PROGRAMS FOR 2008

91% of corporate counsel view records management compliance as important, but 75% still lack auditable standards for e-discovery processes

WEST ORANGE, N.J. – Nov. 1, 2007 – Since the new Federal Rules of Civil Procedure took effect last year, organizations have been looking to outside resources for more assistance in managing information capture and production demands. But a recent survey of chief legal officers from over 100 organizations indicates disappointment with the quality of those services and marginal progress with improving records and information management practices.

“The professional services market is fixated on legal discovery response needs, but not nearly enough attention has being given to the root cause of the information management crisis. E-discovery is a symptom of a more serious problem. More concentration on policy development, business process improvement, and education will enable companies to reduce the overall volume of information subject to discovery in the first place. The costs will continue to mount until leaders decide to get proactive. This is a great opportunity to add value to the bottom line,” says Lexakos founder Rick Wolf. 

In its just-released “Chief Legal Officer 2008 Strategic Planning Survey,” Lexakos asked law department leaders about plans to allocate resources to litigation support over the next year. The findings are telling. While 90% of companies expect their operating budget to increase or stay about the same in 2008, 86% do not plan to expand internal staff dedicated to litigation support. “These data suggest the trend of outsourced litigation support services will continue next year,” says Wolf. “While this might appear to be a boon for the legal services industry, organizations want innovation and better service, and the competition to win business should be high in 2008.” 

The study shows that 86.5% rank as important the need for “controlling outside counsel legal spend and reducing the number of law firms who represent our organization.” Only 21% “trust outside counsel to manage costs and choose the best alternatives for document review,” while 54% “do not believe outside counsel has a vested interest in devising cost-effective document review strategies.” These results are a wake-up call for law firms and e-discovery vendors.   

The study also asks chief legal officers key questions regarding their preparedness for the upcoming changes to the Federal Rules of Evidence and the doctrine of inadvertent waiver.

Lexakos is a business advisory group serving both the professional services industry and corporate legal community on governance, compliance, and risk management.