With Lay's conviction erased, neither the SEC nor any other civilplaintiff will be able to use it as proof of wrongdoing (though it would still be able to use evidence and testimony given in the trial, says Henning).
To prevail in a civil case, the plaintiff need only persuade the trier of fact by a mere preponderance of evidence that the elements of the cause of action have been proved.
On appeal, the United States Supreme Court noted that it had never applied the Discovery Rule in a matter where the plaintiff is the government bringing an enforcement action for civil penalties, in contradistinction to a defrauded victim seeking recompense.
In declining to extend the Discovery Rule to government civil penalty enforcement actions, the Court cast the government as a unique plaintiff often tasked with rooting out fraud and armed with many arrows in its quiver just for such an undertaking.
Plaintiff attorney Shelly Kulwin's comments came during a sarcasm-filled closing argument at the federal civil trial that pits Jacqueline Goldberg against the billionaire real estate mogul-turned TV showman.