Prosecutions drop for US white-collar crime

It's the kind of announcement that should put white-collar criminals on notice. The Securities and Exchange Commission (SEC) is now investigating more than 80 companies in the growing stock-option scandal.

The government has charged officials at two companies for backdating options – a practice that funneled guaranteed profits to executives. More indictments are expected.

But far from ratcheting up the fight against financial wrongdoing, the federal government is actually shifting resources away from it. The number of white-collar crime prosecutions is down 28 percent from five years ago, according to an analysis of federal data by the Transactional Records Access Clearinghouse at Syracuse University.

The reason? The government's focus on homeland security, experts say. In the same period white-collar crime prosecutions fell, for instance, immigration prosecutions more than doubled.

"There's been a shift of priorities since Sept. 11 at the [Federal Bureau of Investigation], in the sense that they've moved bodies from fraud and white-collar crime units to terrorism units," says James Sanders, a partner at McDermott Will & Emery in Los Angeles and a former federal prosecutor. "At the same time, the [white-collar crime] cases have gotten bigger and more complex."

During the 1980s and 1990s, many of the white-collar crime cases involved things like bank fraud, insider trading, and stock manipulation, many of which were not document-intensive. Trials could take as little as four or five days, says Mr. Sanders. But cases like Enron and WorldCom involved complex financial manipulations at high levels. Prosecutors had millions of documents to wade through, which in some cases took years to do.

"Those are very, very complex, document-intensive cases," says J. Boyd Page, senior partner at Page Perry LLC in Atlanta, which was involved in some civil litigation connected to the WorldCom case. "The documents that were made available for our review were something like 1,250 boxes packed one end to the other."

The Enron and WorldCom convictions, as well as the passage of the Sarbanes-Oxley Act in 2002, which holds CEOs directly accountable for their public financial statements, may have had a deterrent effect on some wrongdoers in corporate America, say experts. But they doubt that the drop in white-collar prosecutions reflects an equivalent drop in financial wrongdoing.

Instead, they say, the drop is a reflection of changed priorities. One key factor: The staff available to investigate such cases has shrunk. According to the Justice Department's Office of the Inspector General, the FBI had 2,385 agents engaged in fighting financial crimes in 2000. By 2004, that number had dropped to 1,882.

"There's always been a serious limitation of resources that has caused the government to focus on only the most egregious, large-scale fraudulent schemes," says Christopher Bebel, former federal prosecutor and specialist in securities fraud. "This continuing diversion of resources toward perceived immigration and terrorism threats greatly heightens the dilemma associated with that problem."

That's become particularly apparent in the current stock-option scandal, say experts, because of the scandal's extensiveness. Corporate lawyers say the SEC is relying on companies themselves to do independent investigations, to act as screeners of a kind, and then share with government lawyers if any egregious behavior turns up.

"The US Attorneys offices don't have the prosecutorial resources to truly investigate each one of these cases separately themselves," says Sanders. "They're basically saying to law firms like mine, 'We want you to be independent and come back to us and tell us if there's been an offense here.' "

If an offense is found, Sanders says, the government will do its own investigation.

A spokesman for the SEC declined to comment on the nature of its investigations. But he did note that the number of agents working on the "prevention and suppression of fraud" increased from 981 in 2001 to 1,232 in 2005.

The Justice Department also defends its success in fighting corporate crime, noting that it's cyclical in nature. "We had an extremely high number of convictions from 2001 to 2004, which rose from years prior to 2001 and is typical of these kinds of investigations and prosecutions because they are cyclical," says Brian Roehrkasse, a Department of Justice spokesman. "Since July of 2002, we've had 1,063 corporate fraud convictions, which is a significant amount of work in a four-year period."

White-collar crime experts don't fault the Justice Department for lack of zeal in its work, but do worry about the shrinking resources devoted to keeping corporate America on its ethical toes.

"People can steal a much greater amount of money with a pen than they can with a gun," says Mr. Page. "If we don't take a stand to say, 'Look, this is wrong' ... then we turn our head, and it results in a lot of people thinking it's OK."