Public companies in the United States are once again facing a plethora of problems, this time stemming from the intense interest in alleged backdating of stock option grants. Prosecutions and press accounts may suggest a significant defrauding of investors, but several defense lawyers looking at these cases see much ado about very little. Indeed, company shareholders are losing far more in the hand-wringing than they ever did from backdating, according to participants in this month's roundtable.
The panelists are Thomas E. Holliday and Debra Wong Yang of Gibson, Dunn & Crutcher; Brian O'Neill of Jones Day; James R. Asperger of O'Melveny & Myers; Walter F. Brown and Melinda Haag of Orrick, Herrington & Sutcliffe; and Richard Marmaro of Skadden, Arps, Slate, Meagher & Flom. The session was moderated by Chuleenan Svetvilas and reported by Serena Wong for Barkley Court Reporters.
MODERATOR: Should options backdating cases be criminal?
MARMARO: Generally speaking, I don't think they should. In September 2006 the Senate Banking Committee held a hearing where one witness indicated that about 2,600 of the nation's 8,000 public companies had some questionable stock option practices. How could 2,600 CEOs or CFOs do the same conduct around the same time and believe that what they were doing was criminal?
We probably all agree that the paradigm securities fraud cases?the Enrons, the WorldComs, the Adelphias?all have common characteristics: an intent to give a false picture of the financial health of the company to the public, to inflate the stock price or to keep it high, and to hide the fraud.
Here you have a much different scenario. Generally, it appears you have an intent to attract and retain talent. So the biggest hurdle the government faces is proving criminal intent. The second hurdle is a legal question. One element of a securities fraud is that the alleged false statement is "material." "Materiality" essentially means that the alleged false statement needs to be important to the investing public. And in the stock option cases, we've learned that when the restatements are announced, Wall Street and the investors don't really care, because you're dealing with noncash expenses that have been allegedly understated.
The bulk of the cases currently under investigation should be in the category of alleged books and records violations, a civil offense that's within the jurisdiction of the SEC and would be appropriately investigated and prosecuted as such.
HOLLIDAY: What's happened in the stock option debacle is a perfect storm. In the post-Enron, post-Arthur Andersen era, everyone is terrified about what could happen to their company.
We now have a situation where everybody runs to have an independent committee of the board?usually new members. The committee is investigating its own peers?board members, including the chairman. The CEO is almost always involved. The general counsel is going to be involved. The CFO is going to be involved. The head of HR is probably involved. Your outside counsel and your outside auditors are involved. And it all comes in the context of, "We're going to report openly all of our findings. We'll take care of this." But they can't get independent help from those who know the company best.
As a result, a lot of time and worry is spent over what and how this should be handled. Either the SEC or the Department of Justice or both of ought to step in and say, "Here's how we think this ought to be handled." And it ought to be done in a much more organized way so that every company isn't running around, looking to see whether some stock option causes some kind of a restatement because of some change in the accounting rules.
HAAG: I've had an opportunity to talk to a lot of people who were in companies during this time about the stock options practice. It's amazing how few people understood it at the time. The problem is we are in 2007, and the regulators look at it in hindsight and say, "How could you possibly not have known?"
And because of the climate that we're in, with the resulting fear of criminal prosecution created by the government, these same people may never be in front of the regulators, because we have to advise them that they should invoke their Fifth Amendment rights.
BROWN: You see the SEC and the Department of Justice sitting and waiting while private lawyers investigate 100 companies and present what's found. They are going to sift through those and look at the cases where there's some evidence that there was enormous understatement of compensation expense, and people who knew about the accounting made a decision not to disclose it.
Those are the cases that will get focused on. They will be few and far between. The vast bulk of these cases are probably going to be handled administratively, at enormous cost to shareholders who are footing the bill for all this.
HAAG: Part of the problem is that the regulators are handling these cases as they come in the door, so if you are in the unlucky position of being one of the early ones, they don't have the perspective of all the cases?they can't see that obviously many people did not understand the accounting rules.
ASPERGER: Unfortunately, you're seeing the use of hindsight to infer that, because there's a lot of money involved, somebody must have done something wrong. There are many cases where these types of problems existed for very innocent reasons, ranging from people not understanding the rules to a segregation of duties among departments, which is consistent with what you want under section 404 of Sarbanes-Oxley. For example, in some cases one department might not even know what the other department was doing.
It was also viewed as important in determining compensation to have protection of personal privacy, so oftentimes neither accountants nor lawyers were involved in compensation committee meetings. So there is a whole host of reasons why the vast majority of these cases, except for a few possible outliers, really don't warrant any criminal prosecution.
BROWN: When you layer on top of that the advice that lawyers and accountants were providing to a lot of these same companies during the same time period, it's another element that really bears on what sort of intent these people could have had.
ASPERGER: That's a very important point, because there are cases where the outside auditors were consulted and did not identify a problem. The options grant process wasn't part of their Sarbanes-Oxley section 404 review. It simply wasn't on people's radar screen until last year.
MARMARO: The lack of understanding of the accounting is critically important. I attended a conference a month ago with the deputy director of the SEC, and he said that APB 25 [the Accounting Principles Board's 1972 opinion on options] was so easy that his six-year-old daughter understood it. I asked him, "If that is the case, why did the Office of Chief Accountant take nine pages in September of 2006 to explain a rule that's been around for 30 years?"
When you talk about conduct that's being lumped into the backdating terminology, it includes things like when an employee is left off a grant list inadvertently, and a month later it's noticed by HR and that employee is given the benefit of the earlier grant price, because she was omitted through no fault of her own. So part of this problem is definitional.
WONG YANG: These cases are going to continue to be fueled because of what Chris Cox is doing with respect to airing executive compensation and letting shareholders know absolutely and completely what a company is doing with its finances.
The agencies are not waiting for the private lawyers. There's plenty of data out there with respect to who had what at certain times and the amount of compensation. They definitely have certain companies, certain individuals, in the crosshairs. The only thing that slows them down is the lack of resources. So you've got to try to get your client out of the queue, because each case informs the last case.
Everybody is looking at these cases both from the Department of Justice and from the SEC side. Everybody is looking at this to try to figure out where that line is. As each case comes out, it further defines the line. A year from now, hopefully, you'll have enough of these types of cases?including some that haven't turned into criminal prosecutions?that sort the gray area.
O'NEILL: This area of prosecution isn't going to have a long life, for two reasons. Number one: resources. And two, there may be some trials that they lose early on. What makes these attractive cases for prosecution is going to disappear.
These types of cases get popular because Congress will hear about something that doesn't sound right, and rather than stopping and figuring out what's it all about, they say, "We've got to do something about this." They call the Justice Department and everybody starts running around the street with bloody flags without knowing whom they're chasing.
There is an analog to that, back in the Drexel days when Michael Milken was involved and they had something called parking. Until that time parking was not seen as a big deal in the securities industry?although it was probably unlawful. Milken was under investigation and it became the biggest thing of all time when the government learned Milken did it. Milken was prosecuted. Do you know what he got? He got 18 months; even in that climate that's all he got. I think this has less "legs" than that.
HOLLIDAY: There are an unusually high number of "collateral damage" victims in this: the officers and employees of the companies who didn't catch it. And if you're a professional, it's very difficult to explain since everybody says a sixth grader can find it.
HAAG: We're also seeing some inequities because the company's response to the results of the investigation depends very much on the company and the special committee and its counsel. You see fact patterns that lead to somebody's "resignation," and on the same alleged facts you see other people sailing through the process and remaining at the helm of the ship.
MARMARO: These cases should not turn on whether the board of directors is supportive of the CEO or not. They should turn on whether it was criminal conduct. But what we're seeing in Apple and other situations is the same kind of conduct as has been charged elsewhere, but the CEOs are keeping their jobs.
BROWN: It struck me when this first started breaking that it would be appropriate for some kind of an amnesty program where you identify the facts, and if you're not an outlier in some fashion, come in, clean things up, and fix processes moving forward. It could have avoided a whole lot of heartburn and expense.
What happens now is the parade of horribles. The board forms a special committee, independent counsel is hired, and auditors are not going to sign off on the financials until the investigation is done. Financials are not filed. Therefore, you're no longer in compliance with the listing requirements. Bond covenants get violated. Shareholder lawsuits and derivative actions get filed. It's an enormous cost to shareholders.
WONG YANG: At some point it would behoove the government to do something akin to a fast-track program. The government is well aware that there is a huge intent problem, and many cases may end up settling civilly. But it creates such havoc for the company and has such a negative financial impact that at some point, you're actually not serving the public by doing that.
Like with prior cases such as financial institution fraud, once you get the bad actors out of there, then you have some sort of program so a company can come in, make the disclosure, have whatever civil penalty needs to be imposed, and then go about their business.
HAAG: Those suggestions make so much sense, but they have been falling on deaf ears.
O'NEILL: I don't think persuasion does it. I think defense victories do it.
HOLLIDAY: Wins and losses. And that's why early on, the SEC and DOJ should have stepped in and adopted one of these approaches, whether it was a fast track, a higher bar, or an amnesty program. And it wasn't done.
WONG YANG: The wins and losses will help define that. But there's also sensitivity on the other side to these issues because resources are definitely an issue, and there are a lot of other things that are going on, focus areas such as hedge funds and trying to police the billions of dollars they exchange.
In combination with some of the cases that are starting to get ahead, if you have quite a hue and cry from the defense side, if you have well-respected people who are advocating a fast-track program, I don't think that it would fall on deaf ears.
BROWN: But Tom [Holliday] cried out for someone to step in, and instead you had turf battles develop. You had the Eastern District of New York investigating companies in Sunnyvale. It just spun out of control and took on a life of its own.
ASPERGER: It's not to anybody's benefit, especially the shareholders, because there's so much pressure on the special committees to take some action. They know they are going to be scrutinized by the regulators. And you have pressure from the outside auditors. It creates an incentive to replace management even when there may be explanations as to good faith and intent and the shareholders would be much better off with the retention of current management.
O'NEILL: Significantly, the plaintiffs lawyers are not pushing those cases. There's no money in them, is there? Isn't it the case that most of these things are no-loss deals?
MARMARO: The plaintiffs bar has been very quiet in this regard. You see very few class action cases. You see some derivative cases involving breach of fiduciary duty allegations. But the plaintiff's bar has not been active in most of these cases.
HAAG: I'm familiar with one case where the restatement is very significant, and a very significant part of that restatement is a large company-wide grant on a single day. And that grant was always, and remains to this day, under water. Never exercised, not one share.
BROWN: And to rank and file employees, right?
HAAG: Absolutely. It is a very significant accounting charge and no actual impact at all. But you don't know that when you read the Wall Street Journal. You only know that if you know the facts of the case.
MARMARO: That's another part of this story that has not been written about. All you see is "backdating this" and "backdating that." But the reality of most cases is that the options granted had four- or five-year vesting schedules, which means the employee had to stay at the company that long in order to exercise all of the options. Secondly, most of the options granted in 2000 and 2001 ended up under water and were never exercised.
So what you have here is a technical issue of whether the accounting statements of the company in the year 2000 or 2001 should have had a non-cash compensation charge attached to them. It's a debate among accountants rather than a debate about fraud.
ASPERGER: Many of these cases involve mass employee grants where options are given well down the ranks to mid-level and even lower-level employees across the company. So it's not at all simple to decide what the grant date should be.
You'll have the senior officers whose grants are normally determined by the Compensation Committee on the date it meets. You'll have an options pool. You'll have negotiation among the regional managers and other more senior officers about who should get what grants. Then you'll have an allocation. And then you'll have the final determination, but it won't be clear what day that is.
MODERATOR: What are the implications of the DOJ's revision to the Thompson memo?the McNulty memo?
O'NEILL: I think McNulty's really not a major change. The Justice Department is going to continue to request waivers of significant constitutional rights and enlist the economic power of the employer to enforce that.
Would this have happened if not for Judge Kaplan's opinion in KPMG? Not a chance. All this was, in my opinion, was a prophylactic. The next time some judge starts thinking about whether the government insistence upon cooperation is really a good thing, the Justice Department can say, "Well, maybe it wasn't good, so we changed it." I'm not impressed by it.
MODERATOR: You don't think that having to get written permission will act as somewhat of a deterrent?
O'NEILL: There may be federal districts that are unfamiliar with these sorts of cases?without McNulty, they might hit corporations with directives to cooperate. The real plays continue to be the big districts where the big cases are. Those big U.S. Attorneys' offices, like Los Angeles, have a lot of influence when they go back to the Department of Justice. The big U.S. Attorneys' offices will get those waivers if they want them.
WONG YANG: The Thompson memorandum tried to define things after Holder and create credit for a corporation if they really were going to step forward. But there were complaints that prosecutors were asking for too much; it was creating situations where it felt coercive.
So you had the McCallum memorandum, which put a process in place where each office had to have a procedure that if the waiver was being sought, it would go up to the United States Attorney or their delegate. And still complaints persisted. Now not only do you have Judge Kaplan's decision, you have the ABA taking a very aggressive position advocating for changes because they feel that the attorney-client privilege is being eviscerated.
I understand that from the defense perspective, the McNulty memorandum didn't push things back enough. But there are some significant changes that it delineates. When you are representing the client, 95 percent of the time you are dealing with a particular AUSA. And if you want to appeal that person's decision as to whether a corporation needs to waive the attorney-client privilege, you risk offending the person you still have to deal with after that decision is ruled on. There's a reluctance to do that.
Now you have a process where an AUSA knows that this is going to go over to the main Justice Department, and justifying the decision making puts an onus on that AUSA. They dot their I's and cross their T's. Nobody in any United States Attorney's office wants to have to go back to main Justice and explain their actions. It's time-consuming and deters from investigating. So it really puts the onus on that prosecutor to think long and hard about whether they're going to ask a corporation to do that.
HOLLIDAY: With all due respect to my partner, Mr. McNulty didn't go far enough.
He should have stepped back and said, "We are not going to call for a waiver of the privilege. We are not going to interfere with joint defense agreements that are based upon the attorney-client privilege. We are not going to tell an employer, 'We'll look negatively at you if you are continuing to pay the legal fees of one of your employees who needs the advice of counsel and has a conflict with the company.'"
It would have been worthwhile, because it would have said, "we, the Department of Justice, can do our job without Mr. Private Counsel. We don't need to have surrogate DOJ lawyers who want to be G-men acting for us, and then we'll claim waiver of the privilege or demand it and get it."
I wish Mr. McNulty had said the attorney-client privilege is critical to governance. Upjohn recognized the importance of companies to be able to investigate and have a privilege claim for the results of that so company lawyers could do it right, thoroughly, and get to the bottom line.
O'NEILL: And judges rather than the Justice Department should make the call on what's to be treated confidentially under the privilege.
HOLLIDAY: I agree. If there's a crime fraud issue, then the privilege may not apply. And, there are all kinds of ways to deal with a threat of harm within the confines of protecting the sanctity of the privilege that Upjohn recognized. Instead, the government has turned Upjohn on its head.
MARMARO: It's too early to tell, but if early returns are any indication, this is going to have a significant impact on the way we deal with the U.S. Attorney's office.
I just completed an internal investigation for a corporation and was asked initially to give the results up wholesale to the government. Then the McNulty memo came down, and my next meeting was totally different. The prosecutor acknowledged that we didn't need to waive attorney-client privilege. He asked for the factual predicate to the interviews, but he didn't ask for the interview memos. And he didn't ask for the entire privileged report. I thought that indicated a key change in the way prosecutors behaved before McNulty.
It's one example, and hopefully it will continue like that. There is a good chance that McNulty will have a positive effect of allowing defense lawyers to do their jobs, to do their investigations, to work with their clients on cooperation agreements with the government?particularly their corporate clients?in a manner that preserves the attorney-client privilege.
HOLLIDAY: I hope you're right. But even the McNulty memo says there is a category of privileged documents they can ask for without approval from main Justice. And if you don't give these documents to them, that can be considered as to whether you're cooperating or not. Those Category 1 documents include information from the factual interviews.
Well, that's the whole basis of Upjohn-learning the facts so that the lawyer can then assess them. But with the main Category 1 documents, the fact interviews, there's no protection at all.
ASPERGER: The standard for disclosure of Category 1 information appears to be very broad when you read the McNulty memo. It basically says if prosecutors can make a case of legitimate need, they can justify getting the information after taking it to the U.S. Attorney and running it by the AAG. And legitimate need is defined very broadly as "it would be helpful, it would save time," and so on.
What we've seen in the last decade is a steady erosion of the attorney-client privilege, and this is a very serious issue for the legal profession. We're seeing it again in the proposed revisions to rule 502 of the Federal Rules of Evidence, as to whether there should be a selective waiver exception for disclosures to the DOJ and regulators in government investigations.
I expect you will see some of the trial organizations opposed to section 502 because of the fundamental concern that the privilege has been eroded too much. It has to stop, and a clear line has to be drawn in the sand.
BROWN: The memo does not go far enough in trying to correct the erosion that's already occurred. It's still implicit that the waiver of this information is an important factor. General counsel who are looking at the prospect of being indicted are still going to figure out a way, if they feel it suits them, to have this information shared. And prosecutors are going to find a way to send a message without having to violate the hoops they're going to jump through under the McNulty memo.
MODERATOR: How do you interpret this sentence that says, "A corporation's response to the government's request for waiver of privilege for Category 1 information may be considered in determining whether a corporation has cooperated in the government's investigation."
HOLLIDAY: The "may" means "we have a right to consider," which is not the way it should be. They should say, "We're going to honor the privilege."
O'NEILL: Take two steps back and think about what tools we have as defenders. There's very little that you have. You have the Fifth Amendment privilege, the attorney-client privilege, and kind of a presumption of innocence. That's pretty much it.
To take away the attorney-client privilege seems extraordinarily shortsighted. It's just undoing the system. You either believe that attorneys are important to this system or you don't. Implicit in this is the government's treatment: "We think attorneys are impediments to the system, that they make it more difficult for us to find the real truth."
There are very few things that are really true in the world. Everything is a shade of gray. Cases are crimes because somebody at a moment in time?-particularly here, where the passions are hot?decides that's a crime, whether it ever has been or ever again will be. So to change the underpinnings of the basic system in order to achieve a quick end?I think this attack on the attorney-client privilege will in hindsight be seen as a terrible period in our jurisprudence.
HAAG: Walter [Brown] and I saw this problem of the interview memos carried to its conclusion in a case we tried last year. We were representing a man in a securities fraud case who had been interviewed by the internal investigators from a very fine law firm, interviewed over the course of two days about extremely complicated, high-level accounting issues.
The interview memo was written by a first-year associate who I'm sure was very well-meaning but had no accounting, securities, or business background, and wrote a memo reflecting a two-day interview that frankly was garbage.
It was turned over to the government, which, only after a fight, turned it over to us in discovery. Then the government wanted to introduce it as the statement of our client. We had to fight over a multi-day hearing to have that memo excluded, and fortunately the judge ultimately agreed with us.
BROWN: They initially called the lawyer, and she had no recollection of the interview. They then tried to refresh her recollection with the memo, which failed. Then they tried to introduce it as a past recollection recorded, and that's where the fight came about.
MODERATOR: What is the current state of the relationship between the DOJ and SEC?
WONG YANG: It's much more distant than it has been in the last three years. Starting in 2002, you really had a much closer relationship. There was a need: the Department had training seminars where you had SEC people along with AUSAs trying to address all the problems in corporate America. And as it was implemented, you had a few situations with too close a relationship; where the department was viewed as being a stalking horse.
ASPERGER: One thing you still are seeing is very close coordination on individual cases. In the last month, I've been over to the SEC in options cases where you see joint meetings with the U.S. Attorney's office, in the context of simply having a discussion, and also in witness interviews where you have members of the U.S. Attorney's office, an FBI agent, and members of the SEC all together in one room conducting the interviews.
WONG YANG: When it was just the SEC, there was sometimes a desire from the party to really resolve things and say, "Here, this is what I've done and this is how it goes." When you have the Department of Justice sitting right there, it's great from the coordination end of it, but it's really frightening for the other side.
MARMARO: There's a real problem in the way they conduct the investigations now, because the SEC sits in on witness interviews that the U.S. Attorney's office is conducting pursuant to "queen for a day." So they get the benefit of that information and then the SEC files an enforcement action. And when the defense lawyer seeks the testimony or the deposition of that very same witness, the witness says, "I'm not talking because I don't have an agreement with the government."
We just made a motion in the Brocade case to pierce this. We've asked the court to intervene and ask the government to extend the same protections during SEC depositions that the government was willing to extend during the DOJ's interview of that same witness. Otherwise, what you have is a total skewing of the fact finding process.
BROWN: The other thing you're seeing is that courts are reluctant to stay the SEC action as the criminal case goes forward. In the past it was almost automatic.
MARMARO: Judge Breyer, in the Brocade case, didn't even wait for a hearing on the government's motion for a stay. He denied it before the hearing and said, "The SEC and the U.S. Attorney's office charged these people jointly in a very high-profile way, in a joint press conference. They ought to be willing and prepared to go forward with the case, and the defendant shouldn't have to sit on the sideline and have his life messed up for two years rather than one year, waiting for a second trial."
BROWN: Of course, if these witnesses don't have the protection they had in the interview with the government in the SEC enforcement action, I'm not sure they have much choice.
MARMARO: What may happen is that the SEC will be faced with a record at the SEC trial where everyone has asserted the Fifth. And it may be that the defendant can get summary judgment because there are no facts to support the charges in the SEC complaint.
Thomas E. Holliday is a partner in Gibson, Dunn & Crutcher's litigation department. He is also Co-Chair of his firm'sÂ Business Crimes and Investigations Practice Group. He focuses on white-collar criminal defense work and commercial fraud litigation. He has defended individual and corporate entities in a wide range of business fraud prosecutions, and is a Fellow of the American College of Trial Lawyers.
Debra Wong Yang is Co-Chair of Gibson, Dunn & Crutcher's Crisis Management Practice Group and a member of the Business Crimes and Investigations Practice Group. Ms. Yang previously served as the United States Attorney for the Central District of California. Prior to being appointed United States Attorney, Ms. Yang was a California state judge. She was appointed to the Los Angeles Municipal Court in 1997 and became a member of the Los Angeles Superior Court bench in 2000.
Brian O'Neill is a partner in the Los Angeles office of Jones Day. He served as Chief of Special Prosecutions in the United States Attorney's Office in Los Angeles. Mr. O'Neill has tried more than 100 cases to verdict, and successfully defended clients in a broad range of criminal cases including criminal securities cases. He is a fellow of the American College of Trial Lawyers and the American Board of Criminal Lawyers.
Jim Asperger is a Partner in O'Melveny & Myers LLP's Los Angeles office and the Chair of his firm's Global Enforcement and Criminal Defense Practice Group. He focuses on civil and criminal trials, white-collar criminal and regulatory defense, and internal investigations. With his extensive trial experience-more than 20 jury trials and over 100 bench trials and contested evidentiary hearings-he is a Fellow of the American College of Trial Lawyers. In 2006, Mr. Asperger was listed in the Daily Journal's "Top 100 Attorneys" in California.
Walter F. Brown, Jr., a partner in Orrick's San Francisco office, is a member of the firm's Litigation Group. His practice focuses on white-collar criminal defense and complex business litigation. He represents companies and individuals in connection with criminal and regulatory investigations, as well as parallel civil and administrative proceedings. Mr. Brown also conducts internal investigations for public and private companies and Audit and Special Committees of Boards of Directors. As an Assistant United States Attorney from 1989 to 1994, he specialized in white-collar criminal matters.Â
Melinda Haag is a partner with Orrick, Herrington & Sutcliffe in San Francisco. Ms. Haag is an experienced trial lawyer with 20 years of prosecutorial and private practice experience. She has handled trials and investigations involving allegations of securities fraud, mail, wire and bank fraud, antitrust violations, FCPA violations, environmental crimes, defense contractor fraud,Â and health care fraud, among others. Ms. Haag was an Assistant United States Attorney and most recently served as the Chief of the White Collar Crime Section in San Francisco.Â
Richard Marmaro is the head of Skadden's West Coast SEC enforcement and white-collar defense practice and is resident in its Los Angeles and San Francisco offices. For more than 20 years he has successfully defended individuals and corporations in all phases of complex civil, criminal, and regulatory matters. He also has conducted numerous internal corporate investigations for Fortune 500 companies, involving allegations of stock option backdating, insider trading, tax violations, and corporate opportunity issues. He is a fellow of the International Academy of Trial Lawyers.
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