By the time you read this blog post, you undoubtedly will have seen one of the stories in the mainstream media reporting on the February 25, 2013 decision of Southern District Court Jed Rakoff ordering former Goldman Sachs director Rajat Gupta to repay most of the legal fees the company incurred in connection with the government’s investigation and prosecution of Gupta. In case you didn’t see the stories, you can find them, for example, here and here.


There are a number of interesting things about Judge Rakoff’s order, many of which garnered little attention in the mainstream media reports.


By way of background, readers may want to recall that Gupta was convicted in June 2012 of leaking boardroom secrets to Raj Rajaratnam, who relied on the leaked non-public information in making highly profitable securities trades. Gupta was sentenced in October 2012. Gupta is appealing his conviction.


Judge Rakoff did not enter the order ordering Gupta to repay Goldman in a separate proceeding. Rather, Judge Rakoff entered the order in connection with the criminal proceeding against Gupta, and in particular as part of his (Rakoff’s) deferred determination of restitution in connection with Gupta’s sentencing. Goldman had specially appeared in Gupta’s criminal case to seek restitution of the $6.9 million in fees it paid to the Sullivan & Cromwell law firm in connection with the criminal case and related matters. (Goldman later withdrew a request for restitution of Gupta’s salary and for restitution of legal fees incurred in connection with a Section 16(b) short-swing profits proceeding against Gupta, which would explain why the amount Rakoff awarded was below the restitution amount Goldman had originally requested.)


Goldman sought restitution under the Mandatory Victims Restitutions Act, which mandates restitution in a criminal case where an identifiable victim has suffered a pecuniary loss. Under the Act, the restitution may include “necessary” expenses incurred during participation in the investigation or prosecution of the offense. Under Second Circuit authority, necessary other expenses may include attorneys’ fees, provided that the court finds by a preponderance of the evidence that the expenses were necessary and were incurred in connection with the investigation or prosecution of the offense, and that they were incurred by victims of the offense.


Goldman submitted 542 pages of its counsel’s billing records, relating to a range of related matters, not just Gupta’s criminal proceedings alone. Gupta had argued that the restitution, if any, should be limited to fees incurred in his prosecution. But Judge Rakoff interpreted the relief to which Goldman is entitled under the Act broadly. Judge Rakoff said that “this Court has no difficulty in concluding, by a preponderance of the evidence, that nearly all of the expenses Goldman Sachs here claims were the necessary, direct, and foreseeable result of the investigation and prosecution of Gupta’s offense.” 


Among other things, Rakoff included expenses incurred during Goldman Sachs’s internal investigation into Gupta’s conduct; the fees Goldman incurred to attend post-verdict proceedings in Gupta’s case; the fees the company incurred in the parallel SEC case against Gupta; and the fees the company incurred in connection with Rajaratnam’s criminal prosecution.


It is important to highlight the fact that in ordering Gupta to repay Goldman for the fees it incurred, Rakoff was interpreting and applying the Mandatory Victims Restitution Act. Rakoff’s order did not involve or relate to any interpretation or application of Gupta’s rights for advancement of indemnification of his attorney’s fees under Goldman’s by-laws or under applicable state law. I emphasize this fact because, following Gupta’s conviction, there has been discussion in the press of Goldman’s rights (if any) to seek recoupment from Gupta under applicable principles governing advancement or indemnification.


It remains an interesting question whether or not Goldman might have had the right (or would have had the right if Gupta’s conviction is affirmed) to seek to establish in a separate civil proceeding that it had a right of recoupment. But Goldman was not relying on its recoupment rights and Judge Rakoff did not order Gupta to pay Goldman in reliance upon principles of advancement or indemnification. Rather, he was applying the Mandatory Victims Restitution Act.


The fact that Rakoff was applying the Act is also important in connection with the question of what the ruling might mean in other cases. The ruling is only going to be relevant in other cases where a corporate official has been criminally convicted and where there is an identifiable victim that has suffered a pecuniary loss. Absent a conviction, there would be no grounds for restitution. A company seeking restitution of attorneys’ fees and other expenses would have to meet the Act’s other requirements as well. (It should be noted that Goldman is not the only company to have sought restitution of attorneys’ fees from a former official convicted of a criminal offense; as discussed here, Morgan Stanley is seeking in a separate proceeding to recover millions it paid to and on behalf of Joseph Skowron, a former hedge fund manager for the company who plead guilty to insider trading.)


Although it does not appear to have been relevant in Gupta’s case, it is interesting to consider what subrogation rights a D&O insurer might have under the Act in the event of a criminal conviction. To the extent that the attorneys’ fees had been paid by an insurer, the insurer might take the position that it is subrogated to any victims’ restitution rights to which the company is entitled under the Act. Whether the insurer would be as successful casting itself as the victim in that situation is an issue the carrier would have to address.


Today’s Classic Rock Note:  (Hat Tip to The Meta