Supreme Court Takes On “Another” in Upholding Hobbs Act Conviction

The Hobbs Act – a law promulgated in 1946 to deal with the infiltration of racketeering activity in labor unions – got a “W” in its column yesterday with the Supreme Court’s issuance of Ocasio v. United States.  Justice Alito, writing for the 5-3 majority, affirmed the convictions of a Baltimore police officer for Hobbs Act extortion and conspiracy to commit the same for accepting kickbacks in exchange for directing cars post-accident to his co-conspirator’s auto body shop for repairs.

The Hobbs Act is a vehicle typically used by federal prosecutors to charge a public official “who took ‘by colour of his office’ money that was not due to him for the performance of his official duties,” or more simply put, the Hobbs Act provides for the prosecution of law enforcement officials and politicians who accept bribes or extort others via their professional office.  Evans v. United States, 504 U.S. 255, 260 (1992). The definition of extortion under the Hobbs Act requires the obtaining of property (think money, gifts, entertainment, etc.) from another with his consent.  Id. at 265.

In a strict constructionist argument that would have made the late Justice Scalia proud, Ocasio argued that the Government did not carry its burden on this requisite element of the Hobbs Act by failing to prove that he had obtained property “from another.”  Sure, Ocasio accepted money in exchange for routing beat up cars to his co-conspirator’s repair shop, but he shrewdly pointed to the fact that he accepted the said property, i.e. his kickbacks, directly from his co-conspirator and not from another individual outside the conspiracy.  Therefore, he concluded that although his co-conspirators paid him off, there was no agreement – and could be no agreement – to obtain property from another individual or individuals. Clever argument?  Yeah.  Successful?  No.

Justice Alito rejected this argument, in sum, agreeing with the Government that Ocasio’s acceptance of kickbacks from his conspiring bribe payors, satisfied the “from another” element of the Hobbs Act.  Any suggestion proffered by the defense that the bribe must have been paid from an individual outside or beyond the conspiracy was swiftly dismissed by majority Justices Alito, Kennedy, Ginsburg, Breyer, and Kagan.  Moral of the story:  just like the man who becomes his own grandpa, one can now be both a victim and a co-conspirator under the Hobbs Act.

 

 

Landmark $1.375 Billion Settlement in S&P Case Highlights DOJ’s FIRREA Civil Enforcement

Just two years after the ink dried on the Department of Justice’s civil complaint against McGraw-Hill Financial, Inc. and its wholly owned subsidiary Standard and Poor’s Financial Services LLC and almost a decade after S&P was alleged to have misled investors by promoting all-star grades of residential-mortgage bonds as independent and objective, S&P settled prosecutions being conducted by the DOJ, the District of Columbia, and nineteen states for over $1.375 billion, the largest record settlement involving a credit rating firm in history. The settlement agreement requires S&P to pay the DOJ $687,500,000 as well as pay similar amounts to the nineteen states and the District of Columbia.

The DOJ initiated suit against S&P on the basis that it violated the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), a previously underutilized statute that, as we discussed on White Collar Alert, has been rejuvenated by the DOJ in recent years. As detailed in the government’s complaint, S&P was alleged to have knowingly misled investors by overrating residential mortgage backed securities (“RMBS”) and collateralized debt obligations (“CDOs”) during the onset of the 2007 financial crisis. The complaint asserts that S&P’s conduct was fueled by its desire to maintain business relationships with and profit from the banks and companies that issued the RMBS and CDOs. When the housing market collapsed, S&P’s ratings turned out to be inaccurate and in many instances, based on mortgage packages that S&P knew were likely to default. As Attorney General Eric Holder summarized:

On more than one occasion, the company’s leadership ignored senior analysts who warned that the company had given top ratings to financial products that were failing to perform as advertised. … While this strategy may have helped S&P avoid disappointing its clients, it did major harm to the larger economy, contributing to the worst financial crisis since the Great Depression.

Although the settlement agreement and its sixteen-point statement of facts did not require an explicit admission of wrongdoing by either S&P or McGraw Hill, it did require S&P to retract its earlier assertion that the DOJ’s prosecution was political retaliation for the firm’s 2011 downgrade of the United States’ credit rating.

What this historical settlement signals is the increased (and successful) use of FIRREA by the DOJ. The statute has been around for over twenty years without a significant track record, but the DOJ has started to feature it more prominently in civil enforcement actions against financial services and securities companies. Not only does it have a longer statute of limitations, but a civil enforcement action under FIRREA has a lower standard of proof than a criminal enforcement action and provides for the recovery of significant monetary penalties. Although the S&P prosecution is the first enforcement action of its kind against a rating agency, we wouldn’t be surprised to see the government dip its toe into the cool FIRREA waters more frequently in the future.

Criminal Plea, Civil Liability: Aftermath of the BP Deepwater Horizon Catastrophe

Perhaps the most infamous environmental litigation case in history, the 2010 Deepwater Horizon catastrophe has resulted in approximately 3,000 lawsuits (both criminal and civil) and over 100,000 named claimants in federal and state courts nationwide. In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 2:10-md-02179, Findings of Fact and Conclusions of Law Phase One Trial at pg. 7, Filed Sept. 4, 2014 (Doc. No. 13355).

From a criminal perspective, BP entered into a plea agreement in November 15, 2012, thereby resolving all criminal claims arising out of the disaster. In addition to payment of $4 billion dollars in fines and penalties, the terms of BP’s plea agreement require continuous monitoring and compliance efforts, including the creation of a public website that provides lessons learned and annual progress reports and summaries.

On the civil side, yesterday, September 4, 2014, BP was hit with what some are considering a sweeping victory for the government in the multi-district litigation that is spearheading the civil proceedings against BP, amongst others. Judge Carl Barbier concluded that BP’s reckless actions, gross negligence, and willful misconduct were the proximate cause of the spill and that Transocean Holdings LLC and Halliburton Energy Service, Inc. were negligent and proximate causes of the casualty, but did not act grossly negligent. Id. at 135- 136. Finding BP 67 percent at fault, Judge Barbier wrote, “BP’s negligent acts that caused the blowout, explosion and oil spill … were profit-driven decisions. These instances of negligence, taken together, evince an extreme deviation from the standard of care and a conscious disregard of known risks.” Id. at 129-130.

While formulating the standard for gross negligence is an issue of law, Judge Barbier’s conclusion that BP’s conduct amounted to gross negligence is, indeed, an issue of fact. Id. at 114. And issue of fact, I might add, that will likely have profound financial consequences for BP. What implications will this ruling have upon other similarly-situated entities? Click here to read more about our maritime colleagues’ take on the effects of Judge Barbier’s opinion.

Riley Ruling Continues to Protect Citizens from Police Scrutiny

Earlier this summer, we discussed the implications of the Supreme Court’s ruling in Riley v. California, which held that police officers cannot review the contents of a cell phone incident to an arrest absent a search warrant or exigent circumstances. We opined that this bright-line rule would clear up the murky waters created by courts less decisive or intrepid and now, not even three months later, the patience of our nation’s courts in tolerating warrantless cell phone searches has already waned.

Just last week, a New York State trial court suppressed photographs seized from the cell phone of a court observer during the 2012 high-profile sexual assault matter involving Satmar spiritual counselor, Nechemia Weberman. People v. Weissman, 2012KN002159, 2014 WL 4209245 (N.Y. Crim. Ct. Aug. 26, 2014). During the course of the Weberman trial, the presiding judge admonished those in the gallery to refrain from using their cell phones. Despite the judge’s explicit direction, the defendant removed his cell phone from his pocket and took photographs of others in attendance at the trial, including the female complainant while she testified.

When defendant Weissman attempted to exit the courtroom, he was stopped by an officer who seized his phone, scrolled through two to three photographs, and then identified the pictures that the defendant took while in the courtroom. While the court conceded that the officer’s initial investigation was reasonable, in part, because “the courthouse is an environment where persons have diminished expectations of privacy,” it also held that the officer was not permitted to physically seize the phone and view its contents without a warrant. The judge found the search was too expansive in nature and highlighted the officer’s viewing of two to three pictures prior to finding the relevant photos as prohibited under Riley. Id.

The Pennsylvania Superior Court, too, has applied the Riley rule, thereby affirming their intent to protect citizens’ expectation of privacy when it comes to the treasure troves of data found on our cell phones. In July, the Superior Court affirmed the lower court’s suppression of photographs found on a cell phone, relying on Riley in finding the seizure “undoubtedly unconstitutional.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. Ct. July 11, 2014). There, although the cell phone was seized incident to arrest, the police turned on the phone, searched the cell phone data, and proactively accessed the phone’s picture application prior to obtaining a warrant. Although the police officer only viewed a single photo that he believed to be child pornography prior to applying for a search warrant, the court suppressed all seventeen photos containing child pornography, unmistakably delineating them fruit of the poisonous tree.

As Riley continues to sweep the nation state by state, rest assured that you can continue to tweet, Facebook, and text to your heart’s content knowing that the Fourth Amendment’s protections (finally) apply to your most treasured possession – your cell phone.

“Am I on speaker?” PA Supreme Court OKs eavesdropping using phones

This post was co-authored by Michael Hayes. Michael is a partner in Montgomery McCracken’s Litigation Department and co-chair of the firm’s Electronic Discovery practice. He can be reached at 215.772.7211 or at mhayes@mmwr.com.

At least one good thing has already come from Donald Sterling’s very public shaming: a heightened public awareness that even our “private” communications are increasingly susceptible to interception, recording and rapid dissemination. Commissioner Silver, if you’re reading this, please note that we: (1) love this game; (2) admire your work; (3) routinely provide complimentary initial consultations; and (4) are open to discussing alternative fee arrangements (including premium tickets to sporting events).

In an instance of coincidental timing, last week the Pennsylvania Supreme Court unanimously found in Commonwealth v. Spence (J-90-2013) that the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. §§5701 et seq., does not prohibit the surreptitious interception of private communications, so long as the interception is accomplished using a telephone.

Specifically, the Court concluded that telephones (whether smartphones, mobile phones or landline phones), are excluded from the Act’s definition of “electronic, mechanical or other device[s].” Because the Pennsylvania Wiretap Act only prohibits the “interception” of private communications using “electronic, mechanical or other device[s],” the Court reasoned that the Act does not prohibit or otherwise limit the interception of private communications using telephones.

In Spence, a state trooper used an arrestee’s mobile phone to call Spence (the arrestee’s drug supplier), then handed the phone to the arrestee and directed him to activate its speaker function so the trooper could eavesdrop on the conversation between Spence and the arrestee. During the conversation Spence incriminated himself; he was quickly arrested and charged with various drug offenses.

Following his arrest, Spence argued the evidence against him should be suppressed because the state trooper who secretly listened in on his cell phone conversation did so in violation of the Pennsylvania Wiretap Act. If law enforcement “intercepts” a communication in violation of the Act, the evidence obtained may be suppressed; if a citizen violates the Act (for example, by secretly recording a private communication), he or she is subject to potential criminal liability.

The trial court determined the trooper did indeed use an “electronic, mechanical, or other device” (namely the arrestee’s mobile phone) without prior approval to “intercept” Spence’s conversation with the arrestee, and therefore suppressed the evidence against him. On appeal the Pennsylvania Superior Court affirmed suppression of the evidence.

The Commonwealth then appealed to the Pennsylvania Supreme Court and there argued the arrestee’s mobile phone was not an “electronic, mechanical or other device” for purposes of the Act. As a result, the Commonwealth contended, the trooper could not have “intercepted” the informant’s conversation with Spence in violation of the Act, and the evidence against Spence should not have been suppressed. Continue reading

Bharara’s Fire Dies Out: Cohen Remains Uncharged And Turns His Losses Into Gains

As the chapter closes on the decade-long insider trading investigation of SAC Capital Advisors, our question has finally been answered—at least for now: billionaire hedge fund guru Steven A. Cohen has dodged criminal charges for his role in managing the company now convicted of systemic insider trading. It seems, after all, that Manhattan U.S. Attorney Preet Bharara did not have enough fuel in his fire to engulf Cohen.

What is undisputedly the largest insider trading prosecution in American history, the United States of America v. S.A.C. Capital Advisors, L.P., et al. drew to a close April 10, 2014, as U.S. District Judge Laura Taylor Swain accepted SAC’s guilty plea. SAC will pay an unprecedented $1.8 billion in penalties, serve a probation sentence of five years, wind down its business affairs as an investment advisor for third parties, and retain a compliance consultant to evaluate and report on insider trading compliance procedures.

With a sentence like that, one would think that SAC’s days are numbered. But Cohen has been quick to reinvent himself and christen Point72 Asset Management as the legal successor to SAC, a family office that will assume the reins of Cohen’s investing, trading, and portfolio management. Perhaps in an attempt to get out from under the SEC’s watchful eye, Point72 was specifically founded as a “family office,” a wealth management office that will not be subject to SEC regulation as other investment advisors, such as SAC, are. 17 C.F.R. § 275.202(a)(11)(G)–1. Just how wide a net can a family office cast when soliciting clients, you ask? Point72 will be permitted to invest and manage the money of Cohen’s family members, key employees, certain non-profit organizations, estates, and trusts, and any company owned and operated for the benefit of family clients. Id. And what’s more, key employees include Point72’s executive officers, directors, trustees, and general partners, not to mention employees who have participated in Point72’s investment activities for the past twelve months. Id. Does Point72 sound like a revamped version of SAC? Perhaps, but then again, Cohen’s uncanny ability to turn such massive losses somehow into entrepreneurial opportunities are conceivably the reason behind his seemingly endless success.

To those critics who think that SAC walked away essentially unscathed, the terms of the plea were unequivocally supported by SAC and the Government alike. As the Government wrote in its sentencing memorandum of April 3, 2014:

The $900 million fine imposed on the SAC Entity Defendants pursuant to the Plea Agreement is, to the Government’s knowledge, the largest criminal fine ever imposed in an insider trading case. When combined with the $900 million judgment in the Forfeiture Action, it represents an amount that is several times larger than the illicit gains and avoided losses resulting from the insider trading alleged in the Indictment. This financial penalty, together with the non-financial penalties and considerations set forth in the Plea Agreement, is an appropriate punishment for the criminal conduct at SAC Capital – where eight employees to date have been convicted of insider trading – and provides a strong message of deterrence to other institutions…

Gov’t Sentencing Mem. at 2, United States of America v. S.A.C. Capital Advisors, L.P., et al. (2nd Cir. 2014) (13-CR-00541-LTS).

But alas, prosecutors have left themselves wiggle room. The executed plea agreement unambiguously reserves the right to investigate and pursue charges against other individuals—i.e. Cohen. Id. at 7. So perhaps I spoke too soon, perhaps the question still remains: Will Bharara ever have enough fuel to fire the indictment of Cohen?

Bharara’s Infernal Region Expanded By One: Martoma Convicted

For those of us following the prosecutions of SAC Capital Advisors LP, today marked another milestone in U.S. Attorney Preet Bharara’s quest against insider-trading.  Mathew Martoma, ex-SAC fund manager and pharmaceutical-industry analyst, was found guilty this afternoon of one count of conspiracy and two counts of securities fraud.  He became the seventy-ninth consecutive individual to have pled guilty or to have been convicted by the U.S. Attorney’s Office in the federal government’s recent crackdown on insider-trading.

After deliberating for two days, federal jurors concluded that Martoma received insider information regarding Alzheimer’s disease drug trials and manipulated the information to trade large blocks of Elan Corp. and Wyeth shares.  Ultimately, Martoma made profits for SAC amounting to $276 million.

And yet, despite seven consecutive convictions of SAC fund managers, the million dollar question remains: will Martoma’s conviction add enough fuel to Bharara’s fire to motivate the U.S. Attorney’s Office to pursue a prosecution against SAC kingpin Steven Cohen?

Time to Log Off? Complications in Workplace Social Media Use

Are your employees allowed to use their work e-mail account to send and receive personal e-mails?  Should staff be permitted to surf the net while at the workplace?  What about Facebook and Twitter?  Does your employee handbook have any limitations on how employees should (or should not) use social media at the office?

In today’s world—where there are more devices connected to the Internet than there are people on the planet—the Internet and social media keep the world connected.  But from a corporate compliance and accountability perspective, the question that employers need to ask themselves is:  what Internet use limitations do I need to insulate my company from being held vicariously liable for an employee’s criminal conduct?

In a recent Pennsylvania Supreme Court opinion, the court affirmed the lower court’s ruling that interactions and images of child pornography relayed over Skype, the ever-popular Internet-based telecommunications system, are considered “computer depictions” under Pennsylvania’s child pornography laws.  Commonwealth v. Levy, 2013 PA Super 331 (Pa. Super. Ct. Dec. 30, 2013).  While the court expanded the statutory definition of “computer depiction” to include video images displayed on a computer monitor via Skype, it reasoned that doing so was well within the General Assembly’s intent in enacting the sexual abuse of children statute and “[t]o construe the term ‘depiction’ as excluding images displayed on a computer monitor would circumvent, and confound, this legislative intent.”  Id. at 5.

The practical implications of this ruling (and other similar rulings relating to the statutory interpretation of child abuse prevention laws) are that employers should be prudent in drafting and disseminating their employee conduct handbooks, particularly when it comes to the use of the Internet, social media, and Skype at the workplace.  And while some may coin the implementation of rigorous Internet policies as micro-managing or the imposition of ‘big brother,” the reality is that employers have a federal duty to report promptly and in good faith knowledge of any employee utilizing child pornography… even at the workplace.  See 18 U.S.C. § 2258A(a).  Failure to do so can not only result in stiff fines, see 18 U.S.C. § 2258A(e), but also civil liability.  At least one employer has been found liable in a civil lawsuit for failing to report that an employee was visiting child pornography sites at work and sending child pornography from his work computer.  Doe v. XYC Corp., 382 N.J. Super. 122, 126, 887 A.2d 1156, 1158 (N.J. Super. Ct. App. Div. 2005).

So what’s the bottom line?  Update your Internet use policies, ensure that your employees know to whom to report possible misconduct, and familiarize yourself with the federal CyberTipline should you have to report the criminal misconduct of an employee.

Gordon Gekko Redux: Jordan Belfort’s Hollywood Redemption?

We all remember the infamous Gordon Gekko scene from the original Wall Street movie when he empowered Teldar Paper shareholders with his “Greed is good” speech:

Greed, for lack of a better word, is good.  Greed is right, greed works.  Greed clarifies, cuts through, and captures the essence of the evolutionary spirit.  Greed, in all of its forms: greed for life, for money, for love, knowledge, has marked the upward surge of mankind.  And greed, you mark my words, will not only save Teldar Paper, but that other malfunctioning corporation called the USA.

America’s love (or hatred) for Gekko, perhaps the most infamous and well-coiffed stockbroker in Hollywood history, exhibits how Hollywood can’t get enough of the white collar crime story.  And it doesn’t stop with Gordon Gekko.  Due to be released Christmas Day 2013, The Wolf of Wall Street portrays the life of Jordan Belfort, the founder of Long Island’s infamous Stratton Oakmont penny-stock brokerage firm which grew to over 1,000 brokers in its heyday before it was shut down by the SEC.  Belfort was ultimately convicted of money laundering and securities fraud in 2003, served almost two years of a four-year prison sentence, and was ordered to pay $110.4 million in restitution to victims of his fraud.  But in spite of his sinking his own ship just years ago, today, he has risen back to the top Martha Stewart-style with two books and a movie starring Leonardo DiCaprio under his belt.

And whether you find Belfort reprehensible for luring naïve twenty somethings to join his coalition of ruthless brokers or admirable for outsmarting law enforcement by laundering money to Switzerland via his wife’s retired aunt, one thing is for certain: Belfort is a salesman with the gift of gab and a knack for manipulation.  After dropping out of dental school, Belfort paid the bills by selling frozen lobsters and steaks door-to-door.  He empowered those same salesman skills when he moved to Wall Street, manipulating others with his powers of persuasion and scamming more than $100 million from investors throughout the 1990s.  When Belfort was arrested in 1998, rather than invoke his Fifth Amendment privilege, he convinced government officials to allow him to wear and wire to help build cases against his then-partners and associates.  The federal prosecutor who handled Belfort’s case was so impressed with Belfort’s aptitude for speaking glibly that he later invited Belfort to speak to other prosecutors.  However, it wasn’t until Belfort was behind bars that he realized that he could employ his way with words in legal business ventures instead of illegal scams.  While in prison, he committed himself to writing his autobiography and today is the proud author of The Wolf of Wall Street and Catching the Wolf of Wall Street: More Incredible True Stories of Fortunes, Schemes, Parties, and Prison.  Of course, one-half of Belfort’s earnings from his books, movies, and other miscellaneous investments go directly toward his outstanding restitution obligations.

Although the jury may still be out, Belfort’s autobiography nonetheless provides an example of redemption and resilience.  Time will tell if he takes the path of one of the inspirations Gordon Gekko, Michael Milken, whose own tale of redemption is well known.  In any event, his story of Wall Street excesses will soon join Gekko’s on the silver screen this holiday season.

The Blame Game: Who Should be Indicted – the Company or the Individual?

Just how wide is the net being cast upon SAC by federal authorities?  Last week, I posted about the unprecedented plea agreement worked out between prosecutors and SAC Capital Advisors, L.P. in what could be described as the most rampant insider trading scheme ever charged.

Last Friday, SAC’s general counsel, Peter Nussbaum, appeared in federal court to plead guilty to all five charges filed against SAC on the behalf of the company.  The presiding criminal judge, U.S. District Judge Laura Taylor Swain, was emphatic that she would not approve the agreement without an exhaustive review of its terms, including the “no immunity clause” which provides “no immunity from prosecution for any individual and does not restrict the government from charging any individual for any criminal offense,” a clause that allows the government to potentially charge SAC’s founder, Steven A. Cohen.  And while national headlines are abuzz about SAC – the company – reporters have been remiss to discuss the implications of alleged insider trading upon SAC’s individuals – alumni, traders, and advisors.

Here is the scoop on some of the primary individuals indicted in connection with SAC:

  • Richard Lee, former SAC trader, pled guilty to insider trading and is cooperating with prosecutors.  Lee was allegedly responsible for giving the government information about SAC’s so-called expert networks that connect traders with corporate insiders and the company’s questionable hiring procedures and protocol, including the fact that he was hired by SAC after being terminated by a prior hedge fund on his first day of employment for accessing the hedge fund’s accounting system and misstating the value of his holdings.
  • Donald Longueuil and Noah Freeman, both former portfolio managers, were charged with insider trading relative to publicly traded technology companies, including chip maker Marvell Technology.  Freeman received insider information about Marvell, which he passed along to Longueuil, who turned the tip into a $1 million profit.  Reportedly, Longueuil was taken down in part of a larger effort by authorities to crack down on SAC’s so-called expert networks.  He pled guilty in 2011 and is currently serving a two and a half year sentence.  Freeman pled guilty in 2011 but because he is cooperating with prosecutors, he has yet to be sentenced.
  • Jon Horvath, a former technology industry analyst pleaded guilty in September 2013, for his role in the insider trading conspiracy involving Dell computer and the chip maker Nvidia.  The conspiracy allegedly earned $62 million in illegal gains and included Horvath’s former boss, Michael Steinberg.
  • Anthony Chiasson, co-founder of Level Global Investors, was convicted by a federal jury of illegally trading the technology stocks Dell and Nvidia as part of the conspiracy discussed, supra.  On appeal, Chiasson’s attorneys are arguing that Chiasson lacked knowledge that the insider information was, in fact, given by tippers with the intent to benefit themselves.
  • Michael Steinberg, former SAC portfolio manager, has been indicted for insider trading and the government contends that he utilized secret tips about quarterly earnings results from computer mogul Dell and technology company Nvidia.  He is scheduled for trial on Monday, November 18.  With SAC’s increased notoriety and significant media attention in the past few weeks, Steinberg’s lawyers have already raised concerns that he may not be able to obtain a fair and impartial jury.
  • Mathew Martoma, an ex-SAC trader and pharmaceutical-industry analyst, is charged with conspiring to profit from insider knowledge pertaining to an Alzheimer’s drug and is scheduled for trial in January 2014.  Prosecutors allege that Martoma received insider information about a drug trial from Sidney Gilman, a neurology professor at Michigan and leading expert in Alzheimer’s disease.  Based on Gilman’s tip, Martoma bought and sold large blocks of Elan and Wyeth shares and was allegedly able to avoid losses and make profits for SAC amounting to $276 million, the biggest insider-trading case in history.

Questions remain: how will these prosecutions affect company founder Cohen?  Specifically, will information obtained through cooperating defendants and/or outstanding trials result in the government turning its attention from the company to Cohen, the individual on top?