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Wednesday, October 26, 2011

Goldman's Gupta Arrest: Who's Getting Nervous?

Many high-ranking executives and even government officials might be getting nervous after Goldman Sachs director Rajat Gupta was arrested earlier today on charges relating to alleged insider trading.

The arrest was no surprise. Gupta was heard on audiotapes played at the recent federal trial of Galleon Group founder Raj Rajaratnam, who was sentenced earlier this month to 11 years in federal prison. In addition, the Securities and Exchange Commission filed earlier civil charges against Gupta (since dismissed, now re-filed in a parallel proceeding).

Gupta now has some choices -- assuming he isn't (in his own heart, between him and The Man Upstairs) totally convinced of his innocence. Unlike the head-scratching cases sometimes brought, Gupta likely faces some (apparently) very formidable hurdles in strong evidence (the aforementioned tapes and records of phone calls), strong and credible witnesses (whom might include Rajaratnam if he wants to try to get lenient re-sentencing down from 11 years) and a United States Attorney's Office confident of its ability to win cases and perhaps aware of the mobs at the Occupy Wall Street demonstrations. Does Gupta dare the government to meet its burden of proof, or does he consider the value of the secrets he may keep, the name cachet of the other big names -- "targets" -- he can implicate, and weigh how much he can shorten or avoid a prison sentence through plea bargaining and fact bargaining?

It is per se improper -- if not downright dangerous to our entire system of justice -- to even consider protests in deciding whether to bring or stop an investigation. But it would be naïve to assume there is no effect.

Gupta is left with choices. Much of Wall Street -- and one dares say, the highest levels of our Federal Government -- is anxious to hear of the outcome.

Eric Dixon is a New York lawyer, commentator and litigation stress consultant.

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