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Federal Criminal Prosecution Alleging Insider Trading at Equifax: Some Thoughts

Kish Law LLC

Late last week the United States’s Attorney’s Office here in Atlanta, Georgia announced an indictment alleging a federal criminal prosecution relating to the massive data breach  at Equifax. The government alleges that an “insider” at the company  traded on confidential information concerning the breach, selling stock ahead of the public announcement. This is the sort of federal criminal case we handle here at Kish law LLC, and while I am not involved in the particular matter, the indictment brings several ideas to mind.

First, we all see how the U.S. government now operates via press releases in criminal cases.  They have press officials who regularly draft and disseminate these releases, and the media gobble the release up without much analysis.  The newspapers and TV/radio stations and internet news sources seem to be very gullible at times, taking at face value what is only an allegation.  Remember, no one has proven anything in the case, yet the press regurgitate the prosecutor’s press release as if it was the Gospel truth.  So many people believe whatever they see on the internet, and the Defendant faces a huge battle to remind everyone that he or she is presumed to be innocent and that the only way he or she can be found guilty is if a prosecutor convinces all 12 people on a jury that the government proved its case “beyond a reasonable doubt.”

Another thought this case prompted is the subject matter: insider trading, which is essentially a violation of the securities laws.  These laws obviously make sense, prohibiting insiders from getting to trade on private and confidential information that the rest of us saps in the stock market do not know about.  However, the securities laws are extremely complicated, and many fine lawyers spend their entire careers specializing in this arcane area of the law.  Too many criminal defendants who face a criminal case alleging securities laws violations believe they need to get one of these “securities law specialists” to defend against a federal criminal prosecution. It has been my experience that this is a huge mistake.  Yes, it is important to know the securities laws, but jurors are also not specialists.  Instead, my 36 years experience has taught me that a person facing a federal criminal case alleging securities fraud needs an attorney accustomed to handling jury trials, someone good at talking with regular people who end up on a jury.  Good trial lawyers learn new areas of the law in order to represent their client. Securities fraud is no different.  Using a pure securities law expert is often a huge mistake.  I’ve handle several of these complex matters, and my experience teaches me that the most important thing for the client is to hire a lawyer with whom he or she feels confident in going to trial.

Finally, this recent announcement reminds me of another theme that I often post about.  More and more crime is happening on the internet.  Clients need to hire a lawyer accustomed to handling these type of cases, which come with huge technological issues.  The lawyer not only needs to know the law and be able to stand up and argue a case, attorneys now need to either hire experts to handle or know about all the problems that arise when the evidence and information is part of a huge maw of data.  Things sure have changed in my 36 years, and I try to keep up, or at least hire experts who can teach me where we need to focus.

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