Trial Log For Wednesday: How “Insulting, Contemptuous” Behavior Differs From “Remorse” Edition…

The good soul FTD stayed up late (my condolences!) to hear Mr. Shkreli claim in a YouTube live feed that he will (if convicted) only do three years or less. [I would encourage the able AUSAs to pin this to their cork boards, for a possible September sentencing date — this is… motivation. And my graphic is sincerely intended to suggest that she is… a “saint“, by comparison — to Mr. Shkreli, at least.]

Mr. Shkreli based that on CFTC v. Park — a recent CFTC regulatory case (i.e., not a DoJ/US Attorneys SEC one), stemming from “commodity pool operator” charges — not wire fraud, and “parking” charges, related to public company securities.

Ms. Park never “parked” public company securities — his on the other hand, is an eight count indictment (hers was only seven; some of which were not even felonies — all of Mr. Shkreli’s are), and she agreed to a guilty plea. She wept openly at sentencing, taking full responsibility for her crimes, and expressing genuine remorse — to her victims (mostly friends and family). Importantly, she is not the subject of a raft of securities class actions, spanning at least two public companies, as a control person — leaving one very ugly public company bankruptcy, in her wake. Oh — and she didn’t menace and threaten the wife and children of one of her employees — with whom she had sought to fraudulently “park” those same securities (essentially hiding her level of control of the involved public company — with the goal of manipulating the entire market for that public company’s shares). That’s all… Mr. Shkreli.

And she wasn’t charged with wire fraud — she didn’t act as the kingpin, in a series of schemes in which she allegedly co-opted a lawyer, for cover (my “allegedly” is out of respect for Mr. Greebel’s presumption of innocence).

Most importantly, hers is a CFTC case — not a case involving the market manipulation of an SEC-registered public company. That is, she never controlled a public company, and then defrauded the public shareholders of that ’34 Act company. That all matters quite a bit. Hers was in no respect an open market fraud on our system of capital raising — and secondary market trading. She was trading commodities which are by definition not… securities.

She didn’t force the government to spend enormous resources on a trial; she wasn’t contemptuous of the Judge — didn’t call the AUSAs the “junior varsity”… there is much more, but it all gets rather… redundant after a bit, no? So I’ll stop with factual analysis, here.

In sum, even if Mr. Shkreli were to plead guilty right now, he’d get a minimum of ten years. He may only do five, with day for day credit, but he’ll get ten.

That’s my guess. But we shall see…

Post your July 12, 2017 trial thoughts and updates here.