4 ms·

Just curious. Suppose you did your due diligence, asked your general counsel, and they said, "It's within the law, go for it." Then, acting on their advice, you

Just curious. Suppose you did your due diligence, asked your general counsel, and they said, "It's within the law, go for it." Then, acting on their advice, you did the same thing this person did. Would you go to jail for the same amount of time in both cases? E: Name removed to protect the accused, although it's thin protection indeed considering her name is disclosed elsewhere in this thread.

rayiner 13y ago
Almost always, something like this just results in a civil investigation and monetary penalties if the SEC concludes you did something not-kosher. The criminal indictment for "Michelle" was for tax evasion linked to the back dating: http://ww2.cfo.com/accounting-tax/2008/04/mercury-interactive-ex-cfo-is-indicted http://ww2.cfo.com/accounting-tax/2008/04/mercury-interactiv.... In general, tax crimes require a high standard of "willful" violation in which the defendant purposefully violates a known legal obligation. A violation based on a good faith reliance on a reasonable (or sometimes even unreasonable) interpretation of the tax law will not meet the standard: http://en.wikipedia.org/wiki/Cheek_v._United_States http://en.wikipedia.org/wiki/Cheek_v._United_States.
- jamesaguilar 13y ago
  Fascinating. Based on what everyone is saying, it seems like it is relatively much more difficult to wind up in jail if you are trying to do the right thing.
  - triplesec 13y ago
    ...if you're a white collar, white well-off person, that it. Important caveat, even if not strictly relevant in this context.
Avenger42 13y ago
Presumably at that point your general counsel will inform your defense counsel of the legal theory upon which he told you to "go for it", and you'll see whether it holds up at trial.
pseingatl 13y ago
Acting on advice of counsel is indeed a defense. You have to show that you disclosed all relevant facts to your attorney and that you acted within the parameters of that advice. Tbe government may try to get around this by alleging a conspiracy between you and your attorney and charging you both. This is unusual. Not rare, but not the norm either. The government will subpoena your attorney as a witness and threaten him with this. Your attorney will then claim that you failed to disclose X relevant fact. The defense will not be allowed where you failed to disclose all the relevant facts to your attorney. There is a good deal of case law on these issues.
rmrfrmrf 13y ago
The Wikipedia article on options backdating notes that Steve Jobs was investigated for fraud at Apple, but ultimately the SEC went after Apple's CFO and general counsel at the time.

rayiner 13y ago

Almost always, something like this just results in a civil investigation and monetary penalties if the SEC concludes you did something not-kosher. The criminal indictment for "Michelle" was for tax evasion linked to the back dating: http://ww2.cfo.com/accounting-tax/2008/04/mercury-interactive-ex-cfo-is-indicted http://ww2.cfo.com/accounting-tax/2008/04/mercury-interactiv.... In general, tax crimes require a high standard of "willful" violation in which the defendant purposefully violates a known legal obligation. A violation based on a good faith reliance on a reasonable (or sometimes even unreasonable) interpretation of the tax law will not meet the standard: http://en.wikipedia.org/wiki/Cheek_v._United_States http://en.wikipedia.org/wiki/Cheek_v._United_States.

jamesaguilar 13y ago
Fascinating. Based on what everyone is saying, it seems like it is relatively much more difficult to wind up in jail if you are trying to do the right thing.
- triplesec 13y ago
  ...if you're a white collar, white well-off person, that it. Important caveat, even if not strictly relevant in this context.

Avenger42 13y ago

Presumably at that point your general counsel will inform your defense counsel of the legal theory upon which he told you to "go for it", and you'll see whether it holds up at trial.

pseingatl 13y ago

Acting on advice of counsel is indeed a defense. You have to show that you disclosed all relevant facts to your attorney and that you acted within the parameters of that advice. Tbe government may try to get around this by alleging a conspiracy between you and your attorney and charging you both. This is unusual. Not rare, but not the norm either. The government will subpoena your attorney as a witness and threaten him with this. Your attorney will then claim that you failed to disclose X relevant fact. The defense will not be allowed where you failed to disclose all the relevant facts to your attorney. There is a good deal of case law on these issues.

rmrfrmrf 13y ago

The Wikipedia article on options backdating notes that Steve Jobs was investigated for fraud at Apple, but ultimately the SEC went after Apple's CFO and general counsel at the time.