Page 4 - White-Collar Crime

S4 | MONDAY, FEBRUARY 8, 2016 | WHITE-COLLAR CRIME | NYLJ.COM

Securities
Defending Parallel

And Commodities Actions

K
OC
GST
BI

require coordinated and nuanced strategies important to highlight three issues present one must be aware that civil and criminal
BY DAVID I. MILLER, and actions. Those facing such a precarious in securities or commodities proceedings: investigators are in constant communication
situation may be confronted with criminal (1) because the government has immense with each other both formally and informally.
PETER K.M. CHAN
AND JONATHAN H. LEVY
or civil charges brought by the U.S. Depart- power supported by vast resources, subjects Second, one’s decision to cooperate with
Sment of Justice, an enforcement action by the of investigations must be wary of falling into an investigation is generally binary, and the
ubjects of securities and commodi- U.S. Securities and Exchange Commission or the highly adversarial pattern of private liti- choice must not be made haphazardly. Third,
ties enforcement actions often face Commodity Futures Trading Commission, and gation; (2) cases against the government are practitioners must be prepared to handle
high-stake, multi-front challenges that
even civil lawsuits by private plaintiffs. The not unwinnable, but even where a client is the fact that the scope of civil discovery for
underlying factual conduct may be identical in intent on rejecting a proposed resolution, a defendant is broader than for a criminal
any of these proceedings, but dispositions in a scorched-earth campaign is usually ill- defendant. Fourth, the DOJ, SEC, and CFTC
these different actions can span from lengthy advised; and (3) any interaction with DOJ, may each require different statements or
DAVID I. MILLER is a litigation partner with Morgan,
Lewis & Bockius in New York and a former assistant prison sentences to injunctions on corporate SEC, or CFTC will have some personal ele- documents at different times, but the client’s
U.S. attorney for the SDNY. PETER K.M. CHAN is a ofice-holding to disgorgement and ines.
ment, and advocates should be cognizant that best interests will usually require counsel to
litigation partner in the irm’s Chicago oice and a In this article, we propose certain con- there is a relationship-management aspect streamline the low of information. Fifth, a gov-
former assistant regional director for the SEC’s Chi- siderations that may assist in increasing the to that contact.
ernment attorney’s professional background
cago Regional Oice. JONATHAN H. LEVY is a litigation likelihood of a successful outcome. Before Parallel proceedings involve many moving may inluence their enforcement strategies
associate in the New York oice.
outlining these considerations, however, it is
parts, but six factors are signiicant. First,
and tactics. And sixth, parties should con-