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Expanded Criminal Enforcement in the Financial-Services Industry

By David Krakoff, Samuel J. Buffone and Christopher Regan

Since the economic meltdown began in 2008, the media have waged a relentless attack on the financial industry as the greedy culprit. “So where are all the prosecutions that we were promised?” the white-collar bar has wondered. One answer is that the toxic financial instruments are too complex, and the requisite mens rea too elusive, for prosecutors to tell a compelling David v. Goliath story.

Case in point, the Department of Justice (DOJ) and the SEC recently announced they would not prosecute the AIG executives allegedly responsible for nearly bringing down the entire banking system with hundreds of billions of dollars of contingent deferred swaps (read “insurance”) written for collateralized debt obligations. Meanwhile, the DOJ took a big hit with the acquittal of two Bear Stearns executives last year in the first trial resulting from the meltdown. The case was premised on a loss of $1.6 billion when funds collapsed that were heavily invested in mortgage-backed securities.

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