On the recordMay 12, 2010
the absence of civil liability is striking in this situation, because there is criminal liability for aiding and abetting under the federal criminal code. I know of no situation where there is criminal liability for conduct, but it does not give rise to a civil claim for relief or a civil cause of action. During a hearing on this subject, a very distinguished scholar, Professor Coffee of the Columbia Law School, pointed out how unusual that was in his experience, much broader than mine, that this was anomalous. In the case of Refco Securities Litigation, reported at 609 F. Supp. 2d 304 (S.D.N.Y. 2009), Judge Gerald Lynch made the same point: It is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable in damages to the victims of the fraud. . . . There are accomplices and there are accomplices: after all, in the criminal context when the Godfather orders a hit, he is only an accomplice to murder-one who "counsels, commands, induces or procures," but he is nonetheless liable as a principal for the commission of the crime. Likewise, some civil accomplices are deeply and indispensably implicated in wrongful conduct. But on the current state of the law, there is no accountability for civil damages for aiders and abettors.
