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Monthly Archives: September 2014

baccher

Jagdeep Bachher, chief investment officer of the University of California.

The news this week that the University of California’s chief investment officer (CIO) will not be recommending divestment from fossil fuel companies to the university’s governing board of regents isn’t a surprise.

A coalition of UC students, faculty, staff and alumni have pressed the UC regents to divest from fossil fuel stocks and bonds. On Tuesday, the UC’s CIO released a recommendation that regents not pursue divestment, and instead develop “a framework for the management of environmental, social , and governance considerations.”

UC’s CIO, Jagdeep Singh Bachher was recently hired by the regents to run the university’s finances, more than $90 billion in funds. Bachher previously helped run the Alberta Investment Management Corporation (AIMCo), the sovereign wealth fund of Alberta, Canada. While helping pick investments for AIMCo, Bachher steered the province’s money into coal, oil, and gas companies and projects in North America, China and beyond. He also prioritized renewable energy and clean tech investments. But nothing in his record indicates that he would support divestment from fossil fuel companies. Instead it appears that Bachher sees clean tech as simply one part of a diversified investment portfolio which includes fossil fuels.

AIMCo’s stock holdings, disclosed in this SEC filing, show that the Canadian province’s savings are concentrated in oil and gas companies. About $1.8 billion of the total $8.9 billion in stock owned by AIMCo, roughly 20% of the total, is in an oil, gas, or coal company.

AIMCo’s single largest stock investment is a $374 million stake in Bonanza Creek Energy, an oil and gas company that utilizes fracking techniques in North American oil patches.

AIMCo’s second and third biggest investment positions in publicly traded stocks are Canadian Natural Resources and Suncor Energy, two Canadian oil companies that are excavating the tar sands, arguably the most environmentally destructive energy projects in the world.

Screen Shot 2014-09-11 at 11.01.38 AMIn 2011 Bachher co-authored a paper about investment opportunities across the economies of Alberta, China and India. Bachher focused on investments in energy, calling Alberta a “veritable bank vault of natural resources,” meaning mostly oil and gas.

Bachher also portrayed these investments as opportunities to develop “clean energy,” but it’s clean energy built atop a fossil fuel base.

For example, Bachher singled out AIMCo’s investment in Calera, a California company that aims to capture CO2 emissions and use them to manufacture materials like cement. To leverage China’s five year economic plan, which includes contracting with Peabody Energy to build massive coal-fired power plants, Bachher hopes that companies like Calera will capitalize from the expansion of coal fired energy to utilize some CO2 emissions to create “green cement.”

Peabody Energy, one of the largest coal companies in the world, had a voice in UC’s recent deliberations around the question of whether or not to divest university funds from fossil fuel companies. As I reported in this week’s East Bay Express, Gregory Boyce, Peabody’s CEO, was invited by Bachher to speak to the UC regents task force considering the question of divestment.

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Attorneys employed by the Stroock Stroock & Lavan law firm often are hired after careers in state and federal law enforcement and regulatory agencies like the Securities & Exchange Commission and California Department of Justice.

In a story this week for the East Bay Express I detailed how Benjamin Diehl, a Supervising Deputy Attorney General for the California Department of Justice, quit his post last year, and immediately joined a private law firm that represents many of the same financial corporations he was previously tasked with investigating and prosecuting.

By switching sides, by going from the DOJ’s mortgage fraud strike force, and consumer protection section, to Stroock Stroock & Lavan’s Government Relations group—Stroock is one of the most aggressive defense firms backing banks, mortgage lenders and servicers, and credit card companies in disputes against consumers and state law enforcement—Mr. Diehl is walking a fine line with respect to the law and professional ethics. Of course there’s nothing wrong with a lawyer taking a new job, and shifting gears in their career. But when a government lawyer contemplates switching sides, they must navigate a complex set of ethical and legal questions so that they don’t do harm to the public.

Public perception in recent years is that top federal lawyers in the U.S. DOJ, the Securities and Exchange Commission, and other enforcement agencies are simply cashing in on their connections and knowledge, and perhaps even going soft on Wall Street while in government, all in order to secure lucrative post-government jobs defending and lobbying for the financial sector. The revolving door between Covington & Burling and the DOJ has gotten a lot of press, for example. Much of the public has lost faith in the effectiveness of the justice system.

I inquired with Stroock as to what sort of systems and procedures the firm has in place to ensure that Mr. Diehl will be separated and recused from cases that he might have worked on as a member of the California Attorney General’s staff, and how the firm will ensure he does not breach his duty of confidentiality to the State of California with respect to detailed legal information he surely has about California’s prosecution strategies, but the law firm declined to comment. I also inquired with the California DOJ about Diehl’s exit, but received no response.

I asked in part because of the timing of Mr. Diehl’s departure from the DOJ and his hiring by Stroock. Mr. Diehl announced his resignation from the DOJ in October, 2013 and joined Stroock as special counsel in November of 2013. But e-mails I obtained indicate that he was having private conversations with Stroock attorneys at least as early as April of 2013, a period in which he presumably had significant influence over multiple financial fraud and consumer protection investigations and lawsuits, including enforcement actions directed against clients of Stroock. The subject of the conversations between Diehl and the Stroock partners isn’t clear, but you can read the email exchanges yourself.

Diehl was a frequent speaker and attendee at financial industry conferences put on by the American Conference Institute, and a legal education group called the Practicing Law Institute. These conferences are geared toward educating in-house counsel and defense firms that work for financial corporations, many of which specialize in defending banks from consumer protection lawsuits. Attending these conferences, alongside Mr. Diehl, were several partners of the Stroock Stroock & Lavan law firm.

Attorneys are supposed to zealously represent their clients. They have a duty of loyalty and confidentiality to their current and past clients. Attorneys shouldn’t allow the interests of any other party, or their own personal interests, including future career opportunities they’re hoping to pursue, to interfere with the duties of loyalty and confidentiality they owe a client. And the information clients share with their lawyers, as well as information attorneys generate through investigation, and work products such as prosecution and defense strategies, should be maintained in confidentiality under most circumstances. Sharing this information with oppositional parties is especially problematic.

If the information a former government attorney shares is general in nature, that is, if it isn’t confidential information related to specific investigations or lawsuits, or specific government regulatory and litigation strategies, then it’s usually considered legal and ethical for a lawyer to share with new clients.

Part of Diehl’s new job is sharing information about state attorney general enforcement actions against the financial industry. For example, last April Diehl spoke at an ACI conference offering: “Expert defense strategies for in-house and outside counsel on navigating class actions, litigation, and government enforcement actions in the consumer finance industry.”

Government attorneys in California have added layers of responsibility to uphold. All attorneys practicing in California must follow the California State Bar’s rules to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

Attorneys employed by the State of California to represent the interest of the state’s offices, agencies, and ultimately the people of California, must follow the same rules as other government servants. The Political Reform Act puts several restrictions on state attorneys who leave government employment and go to work for the private sector. Specifically, California law bars government lawyers from switching sides and representing new clients in proceedings (court cases, negotiations, administrative hearings, etc.) that they previously worked on as government attorneys. This is a very specific prohibition with lifetime duration.

Government attorneys are also prohibited from making decisions that might materially affect a person or company with whom they’re negotiating with for a job. The law’s exact wording is:

“No public official shall make, participate in making, or use his or her official position to influence, any governmental decision directly relating to any person with whom he or she is negotiating, or has any arrangement concerning, prospective employment.”

Of course the exactitude of these laws leaves plenty of big loopholes. And the secrecy that lawyers can easily maintain, including government lawyers whose records, for the most part, are not subject to disclosure under the California Public Records Act, makes it hard for the public to keep tabs on what crucial decisions an attorney is making, and how they might relate to post-government employment pursuits.

Screen Shot 2014-09-04 at 1.13.15 PMUrban Shield, a law enforcement conference that includes SWAT competitions, training exercises, briefings, and a large vendors show, is underway again in Oakland this year. The downtown Marriott hotel and conference center is packed with police officers and police-industrial contractors selling everything from machine guns to drones. Alyssa Figueroa of Alternet has a good story about Urban Shield and the protests against it this year, and Ali Winston and I wrote about the event last year.

I briefly walked through the conference this morning. What’s different this year is the size of the event. It feels bigger, and attendees said they thought there were more participants and vendors.

Here’s some photos from the vendors show.

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Guns are a big deal at Urban Shield. Salesmen from Sig Sauer chat about rifles and pistols. Sig Sauer’s gun factory is located in New Hampshire.

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A company named Execushield which claims to have been founded on September 11, 2001 shows off a video of its paramilitary security forces operating in Columbia. Based in San Francisco, Execushield specializes in providing security to high net worth individuals and Fortune 500 companies. A salesman manning Execushield’s booth said he could not talk specifics about clients.

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Members of the Brazilian Police are attending Urban Shield this year. Here the Brazilians get a demonstration of a portable explosives detection device.

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Drones are still in demand among law enforcement agencies, even though there has been significant public backlash. Here representatives of HaloDrop show off their drone aircraft which the company rents out as a service to government agencies.

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The .50 caliber AW50, manufactured by Accuracy International, a British weapons maker that specializes in military sniper rifles. Mile High Shooting Accessories, a vendor attending Urban Shield and distributing these weapons, says the rifles are increasingly popular with U.S. police agencies. The Alameda County Sheriff has bought several of these AW50s (for about $5,000 a piece), and the Livermore police have bought other models made by Accuracy International.

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A sales rep for Mile High Shooting Accessories of Colorado shows off various models of Accuracy International’s sniper rifles to Bay Area police.

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Participating in this year’s Urban Shield tactical competitions, the U.S. Marines.

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Arizona gun maker Patriot Ordnance Factory shows off its weapons at Urban Shield. Patriot sells weapons to the California Highway Patrol.

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Patriot Ordnance Factory’s weapons include the words “God Bless America” inscribed below the chamber.