The Department of Justice (DOJ) has increasingly relied on deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to resolve allegations of criminal misconduct against corporate entities.1 Lanny Breuer, the former Assistant Attorney General for the Criminal Division, extolled the virtues of DPAs and NPAs for giving prosecutors an alternative to the "sledgehammer" of indictment versus "just walk[ing] away."2

While DPAs and NPAs often serve the interests of both the DOJ (collecting substantial financial penalties and imposing remedial compliance, auditing, and monitoring requirements) and corporate defendants (avoiding the stigma of a "full fledged" criminal prosecution and the collateral consequences of a conviction), there is a concern that prosecutors will overreach in negotiating DPAs and NPAs. A recent decision by Judge John Gleeson in the Eastern District of New York confirms that there is judicial oversight of the process and limits to what prosecutors can seek from corporate defendants, and suggests that other judges may take a more active role policing those limits in the future.

One of those limits—and the focus of this article—concerns the extent to which corporate defendants may be required (explicitly or implicitly) to waive the attorney-client privilege or work product protections in exchange for a DPA or NPA. Gleeson specifically raised that issue as a concern that could warrant judicial intervention. Based on our review of 43 DPAs and NPAs (spanning several years), this article examines how frequently corporations waived the attorney-client privilege or work product protections, and whether policy changes by the DOJ have impacted prosecutorial behavior and corporate waiver decisions.

'United States v. HSBC'

On July 1, 2013, Judge Gleeson approved a DPA between the DOJ and HSBC Bank USA, N.A. and HSBC Holdings PLC (collectively, HSBC).3 The DPA stemmed from allegations that HSBC failed to maintain an effective anti-money laundering program and facilitated financial transactions with various sanctioned countries.4 Under the DPA, HSBC agreed to forfeit a record $1.256 billion, comply with various undertakings, and cooperate fully with the DOJ.5 The DPA acknowledged that HSBC's cooperation obligation was "subject to applicable laws and regulations and the attorney-client and attorney work product privileges."6 In exchange for HSBC's cooperation, the DOJ agreed to "defer" its prosecution for five years and then dismiss all charges.7

Rejecting the notion that federal courts should "rubber stamp" DPAs, Gleeson held that the "Court has authority to approve or reject the DPA pursuant to its supervisory power."8 While Gleeson approved the DPA, he noted several "circumstances in which a deferred prosecution agreement, or the implementation of such an agreement, so transgresses the bounds of lawfulness or propriety as to warrant judicial intervention to protect the integrity of the Court."9 For example, Gleeson wrote that "history is replete with instances where the requirements of such cooperation have been alleged and/or held to violate a company's attorney-client privilege and work production protections…."10

DOJ's Evolving Policy on Privilege

In an effort to bring greater uniformity to the DOJ's charging decisions, then-Deputy Attorney General Eric Holder issued a memorandum (the Holder Memo) in 1999 that provided a non-exhaustive list of factors that "should generally inform a prosecutor in making the decision whether to charge a corporation in a particular case."11 One of those factors was the nature and extent of the corporation's cooperation. The Holder Memo directed federal prosecutors to assess cooperation based, in part, on the "completeness of its disclosure including, if necessary, a waiver of the attorney-client and work product protections…."12 The Holder Memo also authorized federal prosecutors to request privilege waivers in "appropriate circumstances."13

With limited exceptions, from June 1999 until August 2008, the DOJ assessed cooperation based, in part, on a corporation's willingness to waive the attorney-client privilege or work product protections.14 As Gleeson noted in HSBC, "[t]hese policies engendered an enormous backlash."15 In response to that backlash (and to head off intervention by Congress), Deputy Attorney General Mark Filip shifted the inquiry to whether the corporation disclosed the "relevant facts" rather than waiver (the Filip Memo).16 Despite changing the operative standard, corporations are still effectively required to waive the attorney-client privilege and work product doctrine (at least in part) when the "relevant facts" are pieced together by attorneys, based on witness interviews and/or privileged documents.

Survey of DPAs and NPAs

Of the 41 DPAs and NPAs that we reviewed, 17 were filed in 2012 (13 DPAs and four NPAs) and 24 were filed between 2007 and 2008 (14 DPAs and 10 NPAs).17 We chose those years to compare and contrast DPAs and NPAs that were filed well after the Filip Memo with DPAs and NPAs that were filed before or immediately after the Filip Memo.

Our hypothesis was that corporations would be more likely to waive the attorney-client privilege and work product protections prior to the Filip Memo than afterwards. The answer, however, was not so clear cut. While the structure and "boiler plate" language of DPAs and NPAs changed in important ways following the Filip Memo, the frequency with which corporations waived privilege before receiving a DPA or NPA stayed relatively constant.

After identifying the relevant universe of DPAs and NPAs, we separated them into three groups: (1) agreements that expressly acknowledged that privilege had been waived (Group 1); (2) agreements where it appeared likely that privilege had been waived (Group 2); and (3) agreements that were ambiguous (Group 3). Of the 41 DPAs and NPAs that we reviewed, three were in Group 1,18 10 were in Group 2,19 and the remaining 28 were in Group 3.20

Our methodology relied on various waiver "signals," augmented by communications with some of the defense counsel who litigated the DPAs/NPAs discussed below. For example, we considered references to memoranda from attorney-employee meetings and emails, references to the content of in-person conversations, and references to specific conduct that took place during a generalized timeframe (e.g., "in or about 2002 and 2003") as waiver "signals" because it is unlikely that the DOJ would have learned that type of information without the disclosure of privileged documents or work product.

Group 1—Express Waiver

Three DPAs or NPAs expressly stated that the corporation had waived privilege. For example, in a 2007 NPA, Blue Cross Blue Shield of Rhode Island (BCBSRI) accepted responsibility for payments that were funneled to Rhode Island state officials by former employees.21 As part of its cooperation with the DOJ and the U.S. Attorney's Office for the District of Rhode Island, BCBSRI made "a limited, voluntary waiver of the attorney-client privilege."22

Similarly, in 2008, Panamanian corporation Willbros Group Inc. and its wholly-owned subsidiary Willbros International Inc. entered a DPA with the DOJ in which they "voluntarily agree[d], as to the Department only, to a limited waiver of the attorney-client privilege with respect to certain specific subject matters important to the Department's understanding of the internal investigation."23 In that case, the DPA stemmed from payments made to Nigerian government officials in violation of the Foreign Corrupt Practices Act (FCPA).24

Finally, a DPA was filed in December 2012 between the DOJ, the U.S. Attorney's Office for the District of Columbia, and Standard Chartered Bank (SCB) relating to alleged violations of the International Economic Powers Act.25 The DPA stated that SCB made "[a] voluntary waiver of the attorney-client and work product privileges with respect to legal advice concerning compliance with the U.S. sanctions during the entire review period…."26 One distinction between the 2012 DPA in SCB and the two earlier DPAs was that the express waiver in SCB was located on the next-to-last page of an exhibit instead of in the first few pages of the agreement itself.

Group 2—Likely Waiver

As discussed above, we relied on several "signals" to identify agreements where it appeared likely that privilege had been waived. For example, we concluded that waiver was likely in the 2007 DPA with York International Corporation27 and the 2007 NPA with Akzo Nobel N.V.28 (both of which related to alleged violations of the United Nations Oil for Food Program) because both agreements described in-person meetings. Although the DOJ arguably could have learned about those meetings from contemporaneous notes or emails, it is more likely that counsel disclosed that information to the DOJ based on its own factual investigation.

We relied on a similar signal in the 2007 DPA with Aibel Group Limited relating to alleged violations of the FCPA.29 In that case, the DPA referred to specific events, but did not pinpoint when each event took place: "[I]n or about 2002 and 2003, Employee B learned from another representative of Agent A that the express courier service operated pursuant to an 'on the side,' 'internal' agreement…."30 Had that information been derived from documents, as was the case in many other agreements, the DPA probably would have used more specific dates.31

In another 2007 agreement with Paradigm B.V. for FCPA violations, the waiver signal was a statement in the NPA that a corporate employee had confirmed that "at least one such [bribe] was paid."32 Again, the DOJ likely obtained that confirmation based on witness interviews by counsel.

Relying on a different signal, the 2008 NPA with Faro Technologies Inc.33 contained express references to attorney-client communications:

7. In response to Employee B's inquiry and explanation regarding "do[ing] business the Chinese way," FARO managers sought the advice of the company's outside lawyer in China and were advised that making payments to government officials or employees in order to obtain or retain business violated Chinese law.

8. After receiving this legal advice from FARO's Chinese counsel, FARO management orally told Employees A and B not to make any such payments.34

We relied on similar signals in two other DPAs from 2007.35 For instance, ITT Corporation's DPA detailed repeated efforts by counsel for ITT and outside counsel to conceal ITT's wrongdoing from the federal government36 and employees' internal disclosures to ITT counsel.37 Ingersoll-Rand's DPA also referenced privileged communications between its subsidiaries and outside counsel.38

Comparable signals appear in three DPAs from 2012.39 For example, Biomet's 2012 DPA noted that "the company's Argentine general manager sought advice from the company's lawyers, causing Biomet to suspend payments to Argentine doctors;"40 United Technology's DPA referenced confidential advice that the companies received from legal counsel;41 and Smith & Nephew's DPA noted that a corporate manager "met with [corporate counsel] to discuss issues with GmbH's relationship with Greek Distributor…notes from the meeting include references to the fact that such payments were 'not legal or ethic[al].'"42 These references are the clearest signals of waiver in any Group 2 agreements. Surprisingly, these signals occurred as frequently in 2012 (long after the Filip Memo went into effect) as in 2007 and 2008 combined.

Group 3—Ambiguous

As note above, 28 DPAs or NPAs were too ambiguous for us to determine on their face whether the corporation waived privilege. However, based on the reality that conducting an internal investigation and disclosing the substance of that investigation to the DOJ is a prerequisite for an DPA or NPA, augmented by discussions with counsel, it would appear that most of the corporations involved in those DPAs or NPAs likely waived privilege.

Developments After Filip Memo

Whatever effect the Filip Memo had on waiver decisions, it fostered important changes by prosecutors in the structure and content of DPAs and NPAs. First, DPAs and NPAs have become far more standardized since the Filip Memo went into effect. Whereas earlier agreements did not have a uniform structure, more recent agreements feature the same clearly structured sections and headings. For example, all of the agreements from 2012 include a section titled "relevant considerations" that identifies the factors that the DOJ did and did not rely on in entering into each agreement.43

Second, agreements from the pre-Filip Memo era typically included a clause stating that the "Department specifically reserves the right to request that [the corporation] provide the Department with access to information, documents, records, facilities and/or employees that may be subject to a valid claim of attorney-client privilege and/or the attorney work product doctrine."44 Although these agreements typically provided a procedure for corporations to refuse such disclosures, they note that "the Department may consider [a refusal to waive privilege] in determining whether [the corporation has] fully cooperated with the Department."45 After the Filip Memo, few agreements contained those clauses, and such language has been eliminated from all 2012 agreements.

Conclusion

While the survey of DPAs and NPAs described above was far from scientific, it shows that the DOJ continues to reward (and expect) corporations to waive privilege. Corporations that voluntarily choose to waive privilege should receive credit for that decision, but Judge Gleeson's decision recognized that prosecutors have the capacity to overreach in negotiating DPAs and NPAs and that certain agreements may so "transgress[] the bounds of lawfulness or propriety as to warrant judicial intervention…."46 Judge Gleeson's decision did not detail the consequences for prosecutorial overreaching. Given that corporations cannot realistically "take back" privileged disclosures (putting aside instances of limited and inadvertent disclosures), one remedy could be to bar the prosecution altogether.47

Gleeson's decision in HSBC is reminiscent of Judge Jed Rakoff's rejection of Citigroup's settlement with the Securities and Exchange Commission (SEC) in 2011. While Gleeson was primarily concerned about overreaching by the DOJ, Rakoff was concerned about "under reaching" by the SEC.48 Rakoff's decision led to a spate of similar decisions and a shift in SEC policy away from "no admit" settlements.49 Time will tell if Gleeson's decision will have a similar impact.

Steven M. Witzel is a partner of Fried, Frank, Harris, Shriver & Jacobson. Joshua D. Roth and Deuel Ross, litigation associates, and Garen Marshall, a summer associate, assisted in the preparation of this article.

Endnotes:

1. DPAs are written agreements in which the DOJ agrees to "defer" and ultimately dismiss filed charges if the defendant agrees to certain terms. If the defendant violates the DPA, the DOJ can resume prosecution. For NPAs, charges are not filed unless the defendant violates the NPA. DPAs have been so successful in the United States that the United Kingdom recently passed legislation authorizing the use of DPAs in certain circumstances. See Memorandum from James Kitching & Salah Mattoo, Fried Frank, to Clients, UK Deferred Prosecution Agreements: New Enforcement Tool or Blunt Instrument? (May 14, 2013), available at http://www.friedfrank.com/siteFiles/Publications/FINAL-5-14-2013-UK_Deferred_Prosecution2.pdf.

2. See Lanny A. Breuer, Ass't Atty. General, U.S. Dept. of Justice, Address at the New York City Bar (Sept. 13, 2012), available at http://www.justice.gov/criminal/pr/speeches/2012/crm-speech-1209131.html.

3. See United States v. HSBC Bank USA, N.A. and HSBC Holdings, 12-CR-00763 (JG), Slip Op. at 2 (S.D.N.Y. July 1, 2013), available at http://www.mainjustice.com/wp-admin/documents-databases/127-1-HSBC-7.01-Order.pdf.

4. See Deferred Prosecution Agreement, at 1-2, United States v. HSBC Bank USA, N.A., No. 1:12-cr-00763-ILG (E.D.N.Y. Dec. 11, 2012) [hereinafter HSBC DPA].

5. Id. at 13.

6. Id. at 9 (emphasis added). The DPA also confirmed in the "Bank Officer's Certificate," the "Company Officer's Certificate," and the "Certificate of Counsel" that HSBC was not waiving the attorney-client privilege or attorney work product protections. Id. at 28.

7. Id. at 3-4, 18.

8. HSBC Bank USA, Slip Op. at 6.

9. Id. at 11. For example, in United States v. Stein, 541 F.3d 130 (2d Cir. 2008), the Second Circuit affirmed the dismissal of an indictment against 13 former partners of KPMG because the DOJ pressured KPMG to stop advancing legal fees to those partners in violation of their Sixth Amendment right to counsel.

10. Id.

11. See Memorandum from Eric H. Holder, Jr., Deputy Att'y Gen., U.S. Dept. of Justice, to All Component Heads and U.S. Att'ys, at 1 (June 16, 1999), available at http://www.justice.gov/criminal/fraud/documents/reports/1999/charging-corps.PDF.

12. Id. at 6.

13. Id.

14. See Memorandum from Larry D. Thompson, Deputy Att'y Gen., U.S. Dept. of Justice, to Heads of Department Components and U.S. Att'ys, at 7 (Jan. 20, 2003), available at http://www.albany.edu/acc/courses/acc695spring2008/thompson memo.pdf; Memorandum from Paul J. McNulty, Deputy Att'y Gen., U.S. Dept. of Justice, to Heads of Department Components and U.S. Att'ys, at 8-11 (Dec. 12, 2006), available at http://www.justice.gov/dag/speeches/2006/mcnulty_memo.pdf.

15. HSBC Bank USA, N.A., Slip Op. at 11, n.10.

16. See Letter from Mark Filip, Deputy Att'y Gen., U.S. Dept. of Justice, to Senator Patrick J. Leahy and Senator Arlen Specter, at 2 (July 9, 2008), available at http://federalevidence.com/pdf/Corp_Prosec/Filip_Letter_7_9_08.pdf; see generally Memorandum from Mark Filip, Deputy Att'y Gen., U.S. Dept. of Justice, to Heads of Department Components and U.S. Att'ys (Aug. 28, 2008), available at http://www.justice.gov/dag/readingroom/dag-memo-08282008.pdf.

17. We limited the scope of our review to DPAs and NPAs involving "Main Justice." We identified the relevant DPAs and NPAs through BloombergLaw.com, the WestlawNext's Department of Justice News Release archive, and the University of Virginia School of Law's Library of Federal Organizational Prosecution Agreements archive.

18. See Deferred Prosecution Agreement, United States v. Standard Chartered Bank, No. 1:12-cr-00262-JEB (D. D.C. Dec. 10, 2012) [hereinafter SCD DPA]; Deferred Prosecution Agreement, United States v. Willbros Grp., No. 4:08-cr-00287 (S.D. Tex. May 14, 2008) [hereinafter Willbros DPA]; Non-Prosecution Agreement, Blue Cross & Blue Shield of Rhode Island (Dec. 13, 2007) [hereinafter BCBSRI NPA].

19. See Deferred Prosecution Agreement, United States v. United Technologies, No. 3:12-cr-00146-WWE, (D. Conn. June 28, 2012) [hereinafter UTC DPA]; Deferred Prosecution Agreement, United States v. Biomet, No. 1:12-cr-00080-RBW, (D. D.C. March 26, 2012) [hereinafter Biomet DPA]; Deferred Prosecution Agreement, United States v. Smith & Nephew, No. 1:12-cr-00030-RBW (D. D.C. Feb. 2, 2012) [hereinafter Smith DPA]; Non-Prosecution Agreement, Akzo Nobel N.V. (Dec. 20, 2007) [hereinafter Akzo NPA]; Non-Prosecution Agreement, Faro Technologies Inc. (Nov. 14, 2007) [hereinafter Faro NPA]; Deferred Prosecution Agreement, United States v. Ingersoll-Rand, No. 07-CR-294-RJL (D. D.C. Oct. 31, 2007) [hereinafter Ingersoll-Rand DPA]; Deferred Prosecution Agreement, United States v. York Int'l, No. 07-CR-00253 (D. D.C. Oct. 15, 2007) [hereinafter York DPA]; Non-Prosecution Agreement, Paradigm B.V. (Sept. 21, 2007) [hereinafter Paradigm NPDA]; Deferred Prosecution Agreement, United States v. ITT, No. 07:07-cr-00022 (W.D. Va. March 28, 2007) [hereinafter ITT DPA]; Deferred Prosecution Agreement, United States v. Aibel Grp., No. H-07-005 (S.D. Tex. Feb. 6, 2007) [hereinafter Aibel DPA].

20. Non-Prosecution Agreement, Caddell Construction Co. (Dec. 20, 2012); HSBC DPA, supra note 4; Deferred Prosecution Agreement, United States v. MoneyGram Int'l, No. 1:12-cr-00291-CCC (M.D. Pa. Nov. 9, 2012); Deferred Prosecution Agreement, United States v. Orthofix International, N.V., No. (E.D. Tex. Nov. 8, 2012); Non-Prosecution Agreement, Tyco International, Ltd. (Sept. 20, 2012); Deferred Prosecution Agreement, United States v. Pfizer H.C.P., No. 1:12-cr-00169-ESH (D. D.C. Aug. 7, 2012); Non-Prosecution Agreement, Gibson Guitar Corp. (July 27, 2012); Deferred Prosecution Agreement, United States v. Victory Pharma, No. 3:12-cr-03040-W (S.D. Cal. July 26, 2012); Deferred Prosecution Agreement, United States v. ING Bank, N.V., No. 1:12-cr-00136-PLF (D. D.C. June 12, 2012); Deferred Prosecution Agreement, United States v. BDO USA, No. S4 09 Cr. 581 (S.D.N.Y. June 6, 2012); Deferred Prosecution Agreement, United States v. Bizjet Int'l Sales and Support, No. 4:12-cr-00061-CVE (N.D. Okla. March 14, 2012); Non-Prosecution Agreement, The Nordam Group (July 6, 2012); Deferred Prosecution Agreement, United States v. Marubeni, No. 4:12-cr-00022 (S.D. Tex. Jan. 17, 2012); Deferred Prosecution Agreement, United States v. Iveco S.p.A., No. 08-cr-0377, United States v. CNH Italia, S.p.A., No. 08-cr-0378, United States v. CNH France, S.A., No. 08-cr-0379, (D. D.C. Dec. 22, 2008); Deferred Prosecution Agreement, United States v. AGA Medical, No. 0:08-cr-00172 (D. Minn. June 3, 2008); Deferred Prosecution Agreement, United States v. AB Volvo, No. 08-069 (D. D.C. March 18, 2008); Deferred Prosecution Agreement, United States v. Flowserve, No. 1:08-cr-00035-RJL (D. D.C. Feb. 21, 2008); Non-Prosecution Agreement, Westinghouse Air Brake Technologies Corp. (Feb. 8, 2008); Deferred Prosecution Agreement, United States v. Sigue Corporation, No. 4:08-CR-00054RWS (E.D. Mo. Jan. 28, 2008); Non-Prosecution Agreement, Lucent Technologies Inc. (Nov. 14, 2007); Deferred Prosecution Agreement, United States v. BP America, No. 07-CR-683 (N.D. Ill. Oct. 25, 2007); Deferred Prosecution Agreement, United States v. Union Bank of California, N.A., No. 3:07-cr-02566-W (S.D. Cal. Sept. 18, 2007); Non-Prosecution Agreement, Textron Inc. (Aug. 21, 2007); Deferred Prosecution Agreement, United States v. American Express Bank Int'l, No. 07-20602-CR-ZLOCH/SNOW (S.D. Fla. Aug. 6, 2007); Non-Prosecution Agreement, Mirant Energy Trading, LLC (July 11, 2007); Non-Prosecution Agreement, Omega Advisors Inc. (June 19, 2007); Deferred Prosecution Agreement, United States v. Baker Hughes, No. 4:07-cr-00130 (S.D. Tex. April 11, 2007); Non-Prosecution Agreement, NetVersant Solutions Inc. (March 21, 2007).

21. BCBSRI NPA, supra note 18, at ¶5.

22. Id. at ¶12.

23. Willbros DPA, supra note 18, at ¶5(e).

24. Id. at ¶1.

25. SCB DPA, supra note 18, at ¶1.

26. SCB DPA, supra note 18, Ex. A, at ¶106(d).

27. See York DPA, supra note 19, app. B, at ¶20 ("On or about November 19, 2000, Employees A and B met with a representative of Company X to discuss FZE's bid to obtain the Iraqi compressor contract, and agreed to pay the requested kickback to the Iraqi government by inflating the amount of money paid to Company X…").

28. See Akzo NPA, supra note 19, app. B, at ¶21 ("Agent A told Employee A that the Agricultural Ministry required Intervet to pay a kickback of five percent of the contract price to the Agricultural Ministry").

29. See Aibel DPA, supra note 19, at ¶1.

30. Id. at ¶27.

31. See, e.g., BP DPA, Attachment A, at ¶40 (The DPA references a number of recorded, non-privileged telephone calls on specific dates and provides a transcript from those calls).

32. Paradigm DPA, supra note 19, app. A, at ¶8.

33. See Faro NPA, supra note 19.

34. Faro NPA, supra note 19, app. A, at ¶¶7-8.

35. See Ingersoll-Rand DPA, supra note 19; ITT DPA, supra note 19.

36. See, e.g., ITT DPA, supra note 19, app. A, at 8 ("The government further discovered during its investigation that counsel for ITT Defense was specifically informed during a meeting in March 2000 that ITT NV employees were aware of the consignment license violations at least as early as March 17, 1998.").

37. See id. at 12 ("the ITT NV employee alerted higher level ITT personnel at ITT Defense, including counsel for ITT Defense").

38. See, e.g., Ingersoll-Rand DPA, supra note 19, Attachment A, at ¶88 ("In or around November 2000, Thermo King sent Contract 801228 to the legal department of Ingersoll, Thermo King and TKI's parent company, so that the legal department could obtain a license…").

39. UTC DPA, supra note 19; Biomet DPA, supra note 19; Smith DPA, supra note 19.

40. Biomet DPA, supra note 19, Attachment A, at ¶32.

41. UTC DPA, supra note 19, app. A, at 14 ("A UTC official…reviewed this May 2004 briefing paper and then emailed it to two executive-level lawyers…").

42. Smith DPA, supra note 19, Attachment A, at ¶16.

43. See, e.g., Smith DPA, supra note 19, at ¶3 ("Relevant Considerations" section).

44. See, e.g., BP DPA, supra note 19, at ¶4(a)(i).

45. Id. at 5, at ¶4(a)(iv).

46. See HSBC Bank USA, N.A., Slip Op. at 11.

47. Gleeson also asked: "What if, for example, the 'remediation' is an offer to fund an endowed chair at the United States Attorney's alma mater?" HSBC Bank USA, Slip Op. at 12. Unlike the disclosure of privileged information, cronyism and graft (like in Judge Gleeson's example) could be remedied by excising the offending provisions from the agreement. See Stein, 541 F.3d at 142 ("Judge Kaplan concluded that no remedy other than dismissal of the indictment would put defendants in the position they would have occupied absent the government's misconduct").

48. Bill Singer, "Judge Rakoff Rejects SEC's 'Contrivances' In Citigroup Settlement," FORBES (Nov. 29, 2011), http://www.forbes.com/sites/billsinger/2011/11/29/judge-rakoff-rejects-secs-contrivances-in-citigroup-settlement/. "The SEC keeps accusing Citigroup of breaking the same laws over and over, without ever attempting to enforce the prior orders. The SEC's most recent complaint against Citigroup, filed last month, is no different. Enough is enough." Jonathan Weil, "Citigroup Finds Obeying the Law Is Too Darn Hard," Bloomberg (Nov. 11, 2011), http://www.bloomberg.com/news/2011-11-02/citigroup-finds-obeying-the-law-is-too-darn-hard-jonathan-weil.html.

49. See, e.g., Emily Flitter, "Falcone agrees to industry ban in new SEC settlement," REUTERS (Aug. 19, 2013) ("The new settlement agreement, which involves Falcone and his hedge fund Harbinger Capital, comes after the Commission rejected an earlier proposal because it was too lenient, lacking any admission of wrongdoing or a full industry ban"), http://www.reuters.com/article/2013/08/19/us-sec-falcone-settlement-idUSBRE97I0VR20130819.