Read The Recorder‘s roundup of the stock-option backdating scandal. There won’t be a test later … but there might be a subpoena.
“A CEO can be prosecuted, criminally prosecuted, if there’s a misstatement in a 10k that he didn’t know was a misstatement?” the judge asked. If so, he added, “your cases are going to be very short. From now on, you’re going to take a 10k, you’re going to talk to a handwriting analyst, and you’re going to ask ‘is this the CEO’s signature?’”
There wasn’t much left for the yellow-suited Marmaro � partner at Skadden, Arps, Slate, Meagher & Flom � to say when it was his turn, other than to agree with the judge’s skepticism on “probably the single critical issue in this case.” He said it was critical for Breyer to get rid of the case before it reached the jury because “there’s an anti-CEO bias out there.”
Crudo declined to comment after the hearing, and Marmaro said he wouldn’t talk publicly about the motion until this week.
But David Shapiro, a former interim San Francisco U.S. attorney and now a partner at Boies, Schiller & Flexner in Oakland, said judges are particularly hesitant to grant Rule 29 motions before a verdict is reached because they are unappealable unless issued after a conviction.
There’s also a high standard for defendants � he and other former prosecutors said prosecutors can usually take solace in the fact that a Rule 29 motion requires that evidence be viewed in the most favorable light to the government � a point that Crudo repeatedly stressed.
“They are filed in every case, and it would be a mistake for a defense lawyer to not file one,” Shapiro said. “But they’re very seldom granted.”