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Parallel Enforcement and Agency Interdependence University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship 1-1-2018 Parallel Enforcement and Agency Interdependence Anthony O'Rourke University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Criminal Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation Anthony O'Rourke, Parallel Enforcement and Agency Interdependence, 77 Md. L. Rev. 985 (2018). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/921 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. PARALLEL ENFORCEMENT AND AGENCY INTERDEPENDENCE ANTHONY O’ROURKE* Parallel civil and criminal enforcement dominates public en- forcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of inter- agency coordination. Drawing on original interviews with pros- ecutors, regulators, and white-collar defense attorneys, this Arti- cle is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive ac- count to offer an explanatory theory of the pressures and incen- tives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships with inves- tigating agents. This constitutive feature of parallel proceedings explains many of the institutional design choices that shape our regimes of overlapping civil and criminal enforcement. INTRODUCTION Prosecutors and civil regulators routinely combine their resources to pursue concurrent actions against the same defendant in a variety of do- mains: financial regulation,1 immigration control,2 environmental law,3 tax © 2018 Anthony O’Rourke. * Professor of Law, SUNY Buffalo Law School; Assistant Federal Defender, Federal De- fenders of New York. For feedback at various stages of this project, I am grateful to Christine Bartholomew, Anya Bernstein, Guyora Binder, Luis Chiesa, Matthew Dimick, Russell Gold, Jonathan Manes, Sandra Mayson, Errol Meidinger, Ion Meyn, John Rappaport, Daniel Richman, Jack Schlegel, Christine Varnado, Jim Wooten, participants of Crimfest 2016, and workshop par- ticipants at SUNY Buffalo Law School. Christopher DeSanto provided excellent research assis- tance. I am especially grateful to those I interviewed for their time, insights, and confidence. Be- cause of the sensitive nature of this topic and with respect for the privacy of interviewees, their identities will remain anonymous. I conducted all interviews for and completed a substantive draft of this Article before being offered a position at the Federal Defenders of New York; the views expressed here are my own and not the views of that office. Research for this article was made possible by the generous support of the Baldy Center for Law and Social Policy. 1. See Speech, Mary Jo White, Chair, SEC, All-Encompassing Enforcement: The Robust Use of Civil and Criminal Actions to Police the Markets (Mar. 31, 2014), https://www.sec.gov/News/Speech/Detail/Speech/1370541342996#_ftnref4 (“In the vast majority of criminal securities fraud prosecutions, the SEC’s Enforcement staff works closely with the criminal authorities, whether it be DOJ, the FBI, or state and local law enforcement.”). 985 986 MARYLAND LAW REVIEW [VOL. 77:985 enforcement,4 and others. To agency outsiders, the mechanics of this prac- tice—known as parallel enforcement—are dimly understood. Indeed, the term “parallel enforcement” itself is a misnomer that contributes to the pub- lic’s misunderstanding of inter-agency practices. Lawyers and litigators use the term to refer to cases that criminal and civil regulatory agencies pursue concurrently.5 Contrary to what the term “parallel” suggests, however, prosecutors and regulators do not bring these cases “side by side” without crossing investigative paths.6 Instead, to the fullest extent the law per- mits—and the law permits a great deal7—these actors coordinate closely to maximize their strategic advantages over defendants. Consider, for example, the civil and criminal insider trading cases against SAC Capital’s Mathew Martoma. The district court’s decision in 2. See, e.g., Enhancing Public Safety in the Interior of the United States § 11, Exec. Order No. 13768, 82 Fed. Reg. 8799, 8801 (Jan. 30, 2017), https://www.whitehouse.gov/the-press- office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united (“The At- torney General and the Secretary [of Homeland Security] shall work together to develop and im- plement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.”). 3. See Timothy J. Chapman, Parallel Proceedings in Federal Environmental Crimes Cases, U.S. ATT’YS’ BULL., July 2012, at 31 (“Department of Justice . litigating components are obli- gated to pursue parallel proceedings under appropriate circumstances.”). 4. See, e.g., I.R.S. POLICY STATEMENT 4-26, IRM 1.2.13.1.11 (Oct. 5, 2005) (encouraging intra-agency coordination of civil and criminal proceedings). 5. See, e.g., Eli Ewing, Comment, Too Close for Comfort: United States v. Stringer and United States v. Scrushy Impose a Stricter Standard on SEC/DOJ Parallel Proceedings, 25 YALE L. & POL’Y REV. 217, 217 (2006) (defining parallel proceedings as “involv[ing] concurrent inves- tigations of the same conduct by different government agencies, as an efficient means of law en- forcement”); Charlotte Taylor, The Rise of Parallel Proceedings in Health Care Fraud Investiga- tions: How to Tell When You’re a Target, JONES DAY (Apr. 2014), http://www.jonesday.com/the- rise-of-parallel-proceedings-in-health-care-fraud-investigations-how-to-tell-when-youre-a-target/ (defining “parallel proceedings” as “a shorthand term for simultaneous criminal, civil and admin- istrative investigations”). As it is frequently used by litigators and regulators, the term is under- inclusive in that it often does not refer to any private civil lawsuits that are filed concurrently with a criminal or regulatory action. Cf. Jefferson M. Gray, Potential Ethical Issues in Parallel Pro- ceedings, U.S. ATT’YS’ BULL., May 2007, at 42, https://www.justice.gov/sites/default/files/usao/legacy/2008/07/29/usab5503.pdf (defining “paral- lel proceedings” as “matters opened as possible federal criminal cases” that are “under active in- vestigation by federal or state regulatory agencies, or even by private civil counsel”). The risk of such private lawsuits is one of the most pressing concerns of the white-collar defense attorneys with whom I spoke. See also Christine P. Bartholomew, Redefining Prey and Predator in Class Actions, 80 BROOK. L. REV. 743, 796 (2015) (“Unlike government enforcement, which wavers by administrative interest, politics, and economic resources, private class actions have the potential for more constant regulatory oversight . .” (footnote omitted)). A full examination of this issue, however, is beyond the scope of this Article. 6. Parallel, ENGLISH: OXFORD LIVING DICTIONARIES https://en.oxforddictionaries.com/definition/parallel (last visited Apr. 30, 2018) (defining “paral- lel”). 7. See infra Part I.A. 2018] PARALLEL ENFORCEMENT 987 United States v. Martoma8 offers a rare, though incomplete glimpse at the degree of coordination involved in parallel proceedings.9 Martoma’s case is unusual in that he opted for a criminal trial, but the structure of the govern- ment’s coordinated investigation was not exceptional.10 By describing the trajectory of this investigation, the court revealed some of the hallmarks of contemporary parallel proceedings: information-sharing, jointly conducted witness interviews, investigation through means other than confidential grand jury subpoenas, and other forms of close coordination.11 The civil and criminal cases against Martoma were tightly coordinated and devastatingly effective.12 The Securities and Exchange Commission (“SEC”) traced suspicious trades to Martoma and collaborated with Federal Bureau of Investigation (“FBI”) agents to build “parallel” civil and criminal cases against him.13 As the investigation proceeded, the SEC shared every document it obtained through civil discovery from SAC Capital with prose- cutors in the U.S. Attorney’s Office for the Southern District of New York (“SDNY”).14 SEC attorneys and SDNY prosecutors also jointly conducted twenty interviews of a dozen witnesses.15 In advance of a crucial deposition in the civil case, SEC attorneys met with an SDNY prosecutor to discuss the evidence against the deponent.16 SEC attorneys called this prosecutor during a break in the deposition to discuss the testimony, and they updated the prosecutor after the deposition concluded.17 The U.S. Attorney’s Office 8. 990 F. Supp. 2d 458 (S.D.N.Y. 2014). The case concerned Martoma’s use of nonpublic information about a clinical drug trial and appears to have been
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