上周四，对冲基金SAC Capital Advisors因电信欺诈和证券欺诈被正式起诉，而就在不久前，这家基金公司的六名员工已经向法庭认罪。看来SAC基本无法否认上述指控。
时任查尔斯•舒曼参议员首席法律顾问的普瑞特•巴哈纳纳正是文章的作者。巴哈纳纳于2009年8月开始担任纽约南区法院（包括曼哈顿地区）检察官。此次对SAC的起诉有可能成为他在该法院的最耀眼成绩。【2007年，巴哈纳纳在《美国刑法评论》（the American Criminal Law Review）冬季刊上发表了一篇意味深长的文章，“公司已认罪，但员工纷纷叫屈”。可点击此处购买该书。】
巴哈纳纳干得漂亮。这份诉讼书列举了六名已经认罪的SAC高管（投资组合经理和研究分析师），还列举了两位正在接受审判的SAC投资组合经理（马修•马托玛和迈克尔•斯坦伯格）；引用了不少发送给首席执行官科恩的电子邮件，其中包含至少看似可疑的信息，科恩甚至还回复了某些邮件，却没有把它们移交给公司合规部门；诉讼书称，SAC倾向于雇佣那些素以获取来源可疑的信息闻名的分析师（例如，投资组合经理理查德•李上周认罪，他承认SAC因内幕交易而雇佣自己）；SAC本身的制度结构和薪酬体系都在极大地鼓励内幕交易；SAC的合规部门形同虚设，对如此规模的违法交易置若罔顾。法院指出，“SAC的合规部门在公司成立以来只查出了一起微不足道的内幕交易。”而当事人也只是被处以一笔数额很小的罚金。根据已经认罪的投资组合经理供认，SAC的员工们在此期间利用内幕信息大肆操作股票交易。涉及股票包括Elan、惠氏（Wyeth）、戴尔（Dell）、英伟达（Nvidia）、英特尔（Intel）、AMD、RIMM、雅虎（Yahoo）、3Com、阿尔特拉（Altera）、台积电（Taiwan Semiconductor）、思科（Cisco）、博通（Broadcom）、eBay、赛普拉斯半导体（Cypress Semiconductor）、宝利通（Polycom）、Qlogic、Cirrus Log、美满电子（Marvell Technology）、Avent、飞兆半导体（Fairchild Semiconductor）。
Hedge fund powerhouse SAC Capital Advisors, indicted Thursday for wire and securities fraud violations after six of its employees pleaded guilty to those charges, appears to have close to no legal defense to the charges it faces.
That's not a subjective statement on my part about the ethics of that company or its owner, Stephen A. Cohen, or the strength of the case against either of them. It's a simple observation about an extraordinary and longstanding anomaly in American law. (In a statement, SAC says, "The handful of men who admit they broke the law does not reflect the honesty, integrity and character of the thousands of men and women who have worked at SAC over the past 21 years. SAC will continue to operate as we work through these matters.")
In a 32,000-word law review article published in 2007, one eminent legal commentator explained the problem: "A multinational corporation may theoretically be indicted, convicted, and perhaps put out of business based on the alleged criminal activity of a single, low-level, rogue employee who was acting without the knowledge of any executive or director, in violation of well-publicized procedures, practices, and instructions of the company."
This highly non-intuitive state of the law -- one that "has been decried by virtually every commentator who has thought to study it," the article notes -- goes back to a 1909 U.S. Supreme Court case in which the Court affirmed the criminal conviction of the whole New York Central railroad company on the basis of actions committed by one assistant traffic manager. That ruling was "a legal earthquake whose tremors are still being felt today," the article continues. "It forever changed the complexion of business crime prosecution and ushered in an age when government prosecutors would assume the role of regulators of commerce, manufacturing, and markets."
The article's author was Preet Bharara, who was then chief counsel for Senator Charles Schumer and who, since August 2009, has been the U.S. Attorney for the Southern District of New York (i.e., Manhattan). His office's indictment of SAC may become the crowning achievement of his term in office. (Bharara's thoughtful article, "Corporations Cry Uncle and Their Employees Cry Foul," in the Winter 2007 issue of the American Criminal Law Review, can be purchased here.)
There is no hypocrisy whatsoever on Bharara's part in bringing this indictment against SAC notwithstanding his qualms, voiced in the article, about the breathtaking breadth of the applicable law. His indictment against SAC is hardly based on the transgressions of a single "rogue, low-level employee." Yet his qualms about the law, and about the enormous power it gives to federal prosecutors in deciding whether to punish a large corporation (SAC has about 1,000 employees) for the acts of a handful, may help explain why Bharara has gone to such lengths in the indictment to explain to the public why this particular indictment is warranted.
He makes a good case. The indictment lists six guilty pleas already entered by high-level SAC employees (portfolio managers and research analysts); it lists indictments pending against two more SAC portfolio managers (Mathew Martoma and Michael Steinberg); it cites a number of emails alluding to at least prima facie suspect information that was passed along to CEO Cohen himself and, in some cases, responded to by him, without triggering referrals to compliance officials; it alleges that SAC gave hiring preference to individuals with reputations for obtaining information of suspicious origin (portfolio manager Richard Lee, who pleaded guilty this week, was allegedly hired by SAC over its legal department's objections, for instance); it alleges that SAC's institutional structure and compensation incentives effectively encouraged and rewarded insider trading; and it alleges that SAC's compliance program was feeble and ineffective in the face of all the huge enticements to transgress. The government alleges that "SAC's compliance department contemporaneously identified only a single instance of suspected insider trading by its employees in its history," for instance, and that the trader in question was punished with a mere fine. Meanwhile, the firm's employees managed, according to admissions its portfolio managers have made in guilty pleas, to use inside information to trade in the stocks of Elan, Wyeth, Dell, Nvidia, Intel, AMD, RIMM, Yahoo, 3Com, Altera, Taiwan Semiconductor, Cisco, Broadcom, eBay, Cypress Semiconductor, Polycom, QLogic, Cirrus Log, Marvell Technology, Avent, and Fairchild Semiconductor.