Jeff Bornstein joined RBGG earlier this year, bringing to the firm decades of experience handling white collar criminal and government enforcement matters. Prior to joining RBGG, Jeff was a partner at K&L Gates for ten years defending white collar criminal and Securities and Exchange Commission (SEC) matters. Before that, he served for nearly two decades in the criminal and civil divisions of the San Francisco U.S. Attorney’s Office. Jeff has tried more than 35 jury and non-jury trials in state and federal courts and has represented individuals in many high-profile cases, including the Galleon insider trading case, the San Bruno gas pipeline accident, and the individual who discovered an iPhone 4 prototype in a bar. He has also represented investment banks, broker dealers, computer chip and healthcare companies, and Solyndra, and been responsible for conducting internal investigations in connection with criminal and civil fraud allegations and potential FCPA violations.
Q: Can you give us any insight into current Department of Justice (DOJ) trends and priorities?
A: The DOJ, and presumably the local U.S. Attorney’s Office, continues to focus on corruption-type cases to include Foreign Corrupt Practice Act (FCPA) violations, other forms of commercial bribery or fraud in connection with investments, finance and/or other business practices, and the protection of electronic communications. The latter includes holding businesses to a high standard of protecting personal and other sensitive customer information on the one hand, and aggressively prosecuting hackers, foreign or domestic, who try to obtain this information on the other. In the San Francisco Bay Area, the government has also been focused on environmental and healthcare criminal investigations and prosecutions.
Q: How can businesses best protect themselves from a criminal prosecution?
A: The best way is to create a culture of compliance by having policies, procedures, compensation, and other remunerative practices that reward good conduct and not just the top-line revenue that is generated. The DOJ expects businesses to police themselves and to self-report when misconduct is discovered. Current Criminal Chief Leslie Caldwell, a former Assistant U.S. Attorney in San Francisco (and my supervisor for a period of time), has made it clear that to get credit for cooperation, businesses need to do thorough, targeted, internal investigations, and then make a full disclosure to the government to include detailing the conduct of individual corporate officials. Ms. Caldwell sets the bar at an extremely high level because corporate executives often believe that what they are doing is in the best interests of the corporation.
Q: What about individuals?
A: These are scary times. The federal government aggressively continues to pursue and criminalize all kinds of conduct that historically would have been handled civilly, such as theft of trade secrets or other misappropriation of corporate assets. Individuals are vulnerable because the policy of the DOJ and the SEC is to look to hold individuals, not just entities, accountable. Furthermore, the government continues to believe that prison sentences for white collar criminals are the only true deterrent to misconduct.
All corporate executives in large and small firms alike need to be vigilant in making sure that they, and those they are supervising, conduct themselves appropriately. The new culture of rewarding whistleblowers has helped to up the ante.
The government is increasingly using blue collar techniques as part of its investigation of white collar crimes. We call this “grey collar” crime. These are the same techniques that have been historically used to prosecute drug dealers and organized crime syndicates. This means using cooperating witnesses who wear secret tape recorders, using wiretaps and other electronic intercepts, such as stingrays. All of this is in addition to building cases using electronic evidence from emails, texts, tweets, Facebook and other social media postings. There is also an aggressive use of monetary payments and/or rolling lower-level people to build cases against their bosses and others.
Q: How do you see your practice integrating with RBGG?
A: My courtroom and trial skills blend nicely with the firm’s sophisticated commercial and civil rights practitioners. There is also a real synergy concerning conducting internal investigations for public entities and private corporate clients. The firm has a great depth of talent that produces high-quality legal work in a cost-effective manner, and I look forward to working with my partners on some of their challenging civil and civil rights cases.