More on criminalizing executive compensation

My last post raised some questions about what might be called criminalizing executive compensation in connection with the Brocade case. 

Here's some thoughts on a specific aspect of the case -- why was the CFO charged only civilly and not criminally?  A few possible reasons come to mind:

1. No criminal liability possible.  But can it be that there is any corporate behavior in that category these days? 
2. The government made a judgment about relative guilt.  On what basis? 
3. The government secured his cooperation. As indicated in my previous post, the net can be cast so far in this case that all of corporate America will be talking itself hoarse.
4. CFOs are a key political constituency for the SEC -- they pay a lot of attention, lobby effectively. Less so for HR officers. 

These points raise significant questions about what I've called the corporate crime lottery that need to be considered as the criminal phase of the backdating so-called scandal rolls on.

Comments

[C.E. Petit]

Although it was before I was a lawyer, I've been involved (mostly peripherally) in enough contract fraud situations to posit a fifth, and extremely common, reason:

(5) Although the government is itself convinced of the guilt/liability of a given corporate officer, the attorney(s) who would actually prosecute the matter were confident that the admissible evidence would satisfy a preponderence of the evidence standard, but not beyond a reasonable doubt.

[Larry E. Ribstein]

Isn't that my reason (2)?