The Deal Quotes James Tysse on SCOTUS and Gushlak Case

Akin Gump Supreme Court and appellate counsel James Tysse was quoted by The Deal on the case of Myron Gushlak, who, in 2010, was convicted of stock fraud and sentenced to six years in prison and fined $25 million in addition to being ordered to pay $17.4 million in restitution.  Gushlak has requested that the U.S. Supreme Court take up his case, claiming that the regression analysis method used to calculate his victims’ losses was in error.

Tysse said, “This is an interesting case, especially given the size of the restitution and the number of victims. The Supreme Court has looked at the issue of restitution fairly often recently, including a couple times this term.”

Regarding the fact that it took over a year and multiple submissions of a restitution total by the government to arrive at a figure acceptable to the court, he noted, "The district court took a very long time coming up with the proper amount of restitution and the government and the court struggled with what would be fair. This was not an off-the-cuff analysis."

Gushlak’s attorney claims that the 2nd Circuit’s decision to allow the use of regression analysis in the calculation of the restitution figure creates a conflict with other circuits’ rulings and, thus, an appropriate case for the Court to consider.  Tysse disagrees: “The real problem with the case is that there really isn't a strong or obvious circuit conflict, and without a conflict, the Supreme Court is not in the business of error correction.” 

He added that the 2nd Circuit itself had chosen not to review the case: “The petitioner filed for an en banc rehearing within the 2nd Circuit and it was not granted, which is indication that the 2nd Circuit did not find this problematic. The Supreme Court could certainly look at it anyway, but the lack of any dissent in the 2nd Circuit makes it somewhat less likely.”