The legal jujitsu of Goldman Sachs

By Felix Salmon
August 2, 2013

Vanity Fair has timed the publication of its latest 11,000-word Michael Lewis opus perfectly to coincide with Fabrice Tourre being found liable on six counts of misleading investors while he worked at Goldman Sachs. Lewis also profiles a former Goldman employee charged with serious misdeeds; in his case, it’s Sergei Aleynikov. And in both cases — Aleynikov and Tourre — the government ended up in a position of overstretch.

The big difference between the two cases is that while Tourre was defended by Goldman Sachs, Aleynikov was prosecuted by them: Lewis leaves the reader in no doubt that the decision to prosecute, along with all the supporting arguments, while nominally taken by the FBI, was essentially made by Goldman Sachs itself. The irony is painful: the government, acting against Goldman Sachs, could only manage a civil prosecution. But Goldman Sachs, acting through the government, managed to secure itself a highly-dubious criminal prosecution, complete with an eight-year prison sentence.

Lewis doesn’t delve too deeply into the jurisprudence here. But it’s obvious that the case would never have been brought without Goldman’s aggressive attempt to cause as much personal destruction as possible to Aleynikov — and it’s also obvious that Aleynikov neither meant nor caused any harm to Goldman whatsoever.

Goldman has consistently attempted to paint Aleynikov as a stealer of valuable secrets — but if anything in Goldman’s high-frequency trading code was valuable, it was Goldman’s trading strategies, and Aleynikov had zero interest in those. What’s more, he wasn’t interested in the code itself, a big buggy mess which he was happy to leave behind: his new job was to build an entirely new system from scratch, in a completely different computer language to that used at Goldman. All that Aleynikov did, in substance, was to email to himself a bunch of files which included open-source code he had managed to find, over the years, online. He thought it might come in handy, one day, but it never really did: most of the files, when they were seized, were unopened.

The story of Aleynikov’s prosecution is a depressing one — one of the experts Lewis assembled to judge the coder’s claims was literally nauseated by the bank’s actions. The story is pretty simple: there are smart HFT shops, and then there’s Goldman Sachs. The smart shops execute their strategies using lightweight, open-source, flexible code. Goldman, by contrast, considers its enormous, clunky, proprietary codebase to be a source of competitive advantage — it has to, in order to justify the bonuses it gives to the people in charge of that codebase. Goldman knew that Aleynikov was its best programmer, but it never really grokked why he was good: he was an expert at replacing clunky Goldman code with much simpler and more elegant open-source solutions.

So while Aleynikov thought he was streamlining Goldman’s technology, Aleynikov’s bosses got million-dollar bonuses by claiming that he was adding to a proprietary codebase in which they placed enormous value. And when Aleynikov thought that he was simply emailing his own notes to himself, Goldman decided that he was stealing proprietary information of enormous value — and that, since it was enormously valuable, of course Aleynikov intended to use that code against Goldman in his new job.

Or, maybe that’s the charitable explanation, and the real explanation is just that Goldman lost their star programmer, and reacted with violent petulance.

In any case, I’m increasingly coming to the conclusion that America’s system of jurisprudence simply isn’t up to the task of holding banks and bankers accountable for their actions. The only people who ever get prosecuted are small fry and insider traders, rather than the people who really caused the biggest damage. And the lesson of Sergei Aleynikov is that if and when the laws get beefed up, the banks will simply end up taking advantage of those laws for their own vindictive purposes, rather than becoming victims of them. Given the ease with which Goldman got the FBI to do its bidding, one has to assume that, most of the time, the government will be working on the same side as the big banks, rather than working against them. Do we really want to give those banks ever more powerful weapons?

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