Posted: November 6, 2013

Attempt To Lift Officer–Director Bar Fails

In SEC v. Alexander, No. 06 CV 3844 (E.D.N.Y. Oct. 24, 2013), Judge Nicholas Garaufis denied a motion by the former CFO of Comverse to modify a consent judgment.  Facing charges that he participated in a scheme to backdate stock option grants in Comverse stock, David Kreinberg had pleaded guilty in 2006 and entered into a consent order with the SEC in which he agreed never again to be an officer or director of a public company.  Kreinberg sought to remove the officer and director bar, claiming that it caused him to forego numerous employment opportunities.

The Court first noted that motions for reconsideration of a final judgment are generally disfavored and require a showing of exceptional circumstances.  That showing needed to be even stronger here where the judgment at issue was on consent, described by the court as “basically [] a contract.”  The Court rejected Kreinberg’s arguments that his seven years of good behavior and extensive cooperation warranted lifting the bar.  Instead, Kreinberg was held to his bargain:

Defendant’s underlying conviction has not been overturned.  Defendant knew, when he agreed to the bar, that he was forfeiting future potential earnings.  As a financial professional, he would be aware of the ramifications of such as choice.  Having weighed the costs and benefits, he chose the bar over further negotiations or litigation of the issue.  And he received not only the benefits of quick settlement of his civil case, but extreme leniency in criminal sentencing as a direct result of his civil settlement.  To put the SEC to its proof on the issue of the bar, he might have had to risk greater sanctions.  That he miscalculated, if indeed he did, is not a reason to revise his bargain absent the showing of any extraordinary hardship.

Slip. op. at 8 (citation omitted).

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