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IANAL but I was able to look this up. "While the exact wording of fraud charges varies among state and federal laws, the essential elements needed to prove a f

IANAL but I was able to look this up. "While the exact wording of fraud charges varies among state and federal laws, the essential elements needed to prove a fraud claim in general include: (1) a misrepresentation of a material fact; (2) by a person or entity who knows or believes it to be false; (3) to a person or entity who justifiably relies on the misrepresentation; and (4) actual injury or loss resulting from his or her reliance." http://criminal.findlaw.com/criminal-charges/fraud.html http://criminal.findlaw.com/criminal-charges/fraud.html The statement below appears to cover 1 and 2 and we already know 3 and 4 to be true. "Goldman received information indicating that, for certain loan pools, significant percentages of the loans reviewed did not conform to the representations made to investors about the pools of loans to be securitized, and Goldman also received certain negative information regarding the originators’ business practices." https://www.justice.gov/opa/file/839901/download https://www.justice.gov/opa/file/839901/download rayiner, given your legal background, do you consider this type of misrepresentation to be criminal fraud irrespective of what regulators have achieved to date?

rayiner 11y ago
I think criminal prosecution should be reserved for the most outrageous and clear-cut misrepresentations. Look at the examples on pages 6-9 of the government's statement of facts. If any of those folks should go to prison? Should the folks at Microsoft who keep stating that the latest firmware update fixes Surface Book/Pro 4 sleep issues, even though people keep having troubles getting their laptop to sleep properly, also go to prison?
- chishaku 11y ago
  I don't see any value in that comparison. Goldman Sachs, as part of a certain class of institutions, plays a systemic role in the economy and as such, Goldman Sachs, its affiliates and the activities under discussion are subject to innumerable pages of regulations enforced by several different regulators. There is no equivalent regulation for Microsoft's firmware update announcements. > I think criminal prosecution should be reserved for the most outrageous and clear-cut misrepresentations. Is this the same standard you apply to any type of criminal prosecution?
  - tptacek 11y ago
    I agree with you about Goldman, but we don't yet have the law that makes materially harmful commercial misrepresentations made by systemically important financial institutions a felony. We should, but we don't. And, one of the very first things the founders said when they booted up this country was "no ex post facto laws".
    - chishaku 11y ago
      > we don't yet have the law ... False. http://www.ag.ny.gov/sites/default/files/pdfs/bureaus/investor_protection/library/NY%20Gen%20Bus%20Law%20Article%2023-A.pdf http://www.ag.ny.gov/sites/default/files/pdfs/bureaus/invest... http://www.bloomberg.com/news/articles/2011-06-03/goldman-sachs-investigators-in-new-york-wield-laws-stronger-than-the-feds http://www.bloomberg.com/news/articles/2011-06-03/goldman-sa... The link below is a general discussion of securities fraud and related legal theory. Goldman is used as an example while discussing the case settled with the SEC in 2010. "The law allows a case like the one against Goldman to be alleged and argued as securities fraud even if the seller merely failed to exercise due care as to whether the buyer was misled about the nature of the securities being sold or how those securities were selected. The law further permits a claim of fraud—even when brought by a private litigant—to be founded on an allegation of recklessness and allows the litigant to assert, in essence, gross negligence as to whether the buyer was misled. If one takes the federal appellate decisions on the issue at face value, the law would appear to support a criminal conviction in a case like Goldman’s even if the seller were merely reckless." http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1518&context=dlj http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...
    - patio11 11y ago
      And, one of the very first things the founders said when they booted up this country was "no ex post facto laws". Right next to "no bills of attainder", which is pretty much exactly what people want to pass.
spinlock 11y ago
The products were designed to be safe even if a large percentage of the underlying assets went into default. They did not represent the pools as free from assets that would default. They represented the pools as diverse.
- deleted 11y ago
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rayiner 11y ago

I think criminal prosecution should be reserved for the most outrageous and clear-cut misrepresentations. Look at the examples on pages 6-9 of the government's statement of facts. If any of those folks should go to prison? Should the folks at Microsoft who keep stating that the latest firmware update fixes Surface Book/Pro 4 sleep issues, even though people keep having troubles getting their laptop to sleep properly, also go to prison?

chishaku 11y ago
I don't see any value in that comparison. Goldman Sachs, as part of a certain class of institutions, plays a systemic role in the economy and as such, Goldman Sachs, its affiliates and the activities under discussion are subject to innumerable pages of regulations enforced by several different regulators. There is no equivalent regulation for Microsoft's firmware update announcements. > I think criminal prosecution should be reserved for the most outrageous and clear-cut misrepresentations. Is this the same standard you apply to any type of criminal prosecution?
- tptacek 11y ago
  I agree with you about Goldman, but we don't yet have the law that makes materially harmful commercial misrepresentations made by systemically important financial institutions a felony. We should, but we don't. And, one of the very first things the founders said when they booted up this country was "no ex post facto laws".
  - chishaku 11y ago
    > we don't yet have the law ... False. http://www.ag.ny.gov/sites/default/files/pdfs/bureaus/investor_protection/library/NY%20Gen%20Bus%20Law%20Article%2023-A.pdf http://www.ag.ny.gov/sites/default/files/pdfs/bureaus/invest... http://www.bloomberg.com/news/articles/2011-06-03/goldman-sachs-investigators-in-new-york-wield-laws-stronger-than-the-feds http://www.bloomberg.com/news/articles/2011-06-03/goldman-sa... The link below is a general discussion of securities fraud and related legal theory. Goldman is used as an example while discussing the case settled with the SEC in 2010. "The law allows a case like the one against Goldman to be alleged and argued as securities fraud even if the seller merely failed to exercise due care as to whether the buyer was misled about the nature of the securities being sold or how those securities were selected. The law further permits a claim of fraud—even when brought by a private litigant—to be founded on an allegation of recklessness and allows the litigant to assert, in essence, gross negligence as to whether the buyer was misled. If one takes the federal appellate decisions on the issue at face value, the law would appear to support a criminal conviction in a case like Goldman’s even if the seller were merely reckless." http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1518&context=dlj http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...
  - patio11 11y ago
    And, one of the very first things the founders said when they booted up this country was "no ex post facto laws". Right next to "no bills of attainder", which is pretty much exactly what people want to pass.

spinlock 11y ago

The products were designed to be safe even if a large percentage of the underlying assets went into default. They did not represent the pools as free from assets that would default. They represented the pools as diverse.

deleted 11y ago
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