Securities Litigation

Short fish, Long fish, Red fish, Gone fish.[1] Old fish, New fish,[2] Red fish, Few fish.[3] This one is tangible,[4] That one's an object[5] The evidence was tampered.[6] Say, wasn't investigation hampered?[7] "Records" and "files" With Latin canon wiles What does it say? No! Don't read it that way.[8] Verbs and nouns[9] Dissenters frown[10] Four plus one, The statute's done.[11] (with apologies to Theodor Geisel). Thomas K. Potter, III (tpotter@burr.com) is a partner in the Securities Litigation Practice Group at Burr & Forman, LLP. Managing Partner of the Nashville office, Tom is licensed in Tennessee, Texas and Louisiana. He has over 28 years' experience representing financial institutions in litigation, regulatory and compliance matters. See attorney profile here: LegalProfessionals/Attorneys/Thomas-K-Potter-III.aspx#.VO5TuuLnZAU © 2015 by Thomas K. Potter, III (all rights reserved). [1] Gulf fisherman John Yates was cited by a federally-deputized Florida Fish & Wildlife officer for having caught a few red grouper that were about an inch under the 20" minimum limit at the time (they'd have been legal under subsequent regulations). Instructed to preserve the under-sized fish until he reached shore, Yates ordered a crew member to throw them overboard. [2] Having destroyed the fish, Yates ordered the crew member to replace them with other legal fish from among the catch. [3] The entire litigation was over 3 fish (red grouper). [4] A post-Enron Sarbanes-Oxley provision, 18 U.S.C. § 1519, subjects whoever "knowingly alters, destroys, …or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence" a federal investigation to federal felony prosecution with fines and imprisonment for up to 20 years. Although convicted on other counts (not challenged), the issue reaching the Supreme Court was whether this destruction of evidence was encompassed within Section 1519's term "tangible object." [5] All nine Justices agreed that a fish is an object that takes up space and you can touch (whew!). [6] All nine Justices agreed that Yates tampered with evidence to avoid prosecution. [7] For the dissent, notes 6-7 supra, were enough. [8] The plurality (Justices Ginsburg, Roberts, Breyer, Sotomayor, with Alito concurring) held that the Latin canons of statutory construction noscitur a sociis (words are known by the company they keep) and ejusdem generis (where general terms follow a specific list they are limited to those similar to the specifics) compelled the conclusion that "tangible object" in this statute means one used to record or preserve information in context of the Act addressing corporate records and related fraud. [9] For Justice Alito, concurring, the nouns used ("records," "files") together with those key verbs ("makes a false entry in") cinched it: "filekeeping, not fish." [10] Justices Kagan, Scalia, Kennedy, and Thomas dissented. Justice Kagan's sharp-tongued dissent was plain: A "tangible object" is "any object capable of being touched" and the statute's purpose was to "punish those who alter or destroy physical evidence - any physical evidence - with the intent of thwarting federal law enforcement." So, "A 'tangible object' is an object that's tangible." Citing Dr. Suess (Part I), slip op. at 2. [11] As the dissent points out, the new "loophole in a statute designed to close a loophole" is an exception that swallows the rule, so that (under this law anyway), you could burn the body to thwart a murder investigation or repaint the van to cover up an arson (real cases, with citations), but just don't destroy the accompanying paperwork!