Monday, November 16, 2015

The SEC's incompetence, combined with its raw power, makes it truly a menace.

The Securities and Exchange Commission (SEC) is meant to be the guardian of the public interest in honest securities markets. Its enforcement effort occasionally is equal to the task. But, far too often, it simply arrives at the fire long after the embers are cold. And, more importantly, more than should be the case it either fails so miserably to do its job that massive damage is caused by its inaction--see Madoff and Stanford, for example--or its enforcement efforts are more symbolic than real--see its generally tepid response to the Wall Street horrors of 2006-2008.

Once in a while, however, the SEC's staggering incompetence borders on willful blindness. Coupled with its enormous power, this incompetence is truly dangerous.

My beliefs in this respect are not theoretical. They are based on my experience  as an attorney at the Division of Enforcement Home Office in Washington, D.C.  (from 1973 to 1981) and 35 years of experience in private practice, where I have represented clients in SEC investigations conducted by the Denver, Chicago, Houston, New York and Miami offices, and the Home Office.

One of the ways the SEC uses its power is in seeking an ex parte TRO, including asset freezes. The theory is logical: go in without notice, get an order, and prevent the Bad Guys from scattering money to the ends of the earth. The Staff files the Complaint, filled with scandalous allegations of wrongdoing, with a foot's worth of supposedly supporting documentation. Judges or their clerks read the allegations and trust that the massive documentation supports, and certainly does not dispute, the allegations. TROs and asset freezes are entered. It is often too late to rescue the defendants from their destruction if, later, the allegations are shown to be false or dangerously incomplete. I have seen this happen in cases on which I was engaged to represent defendants. 

A recent chilling example is the Opinion and Order in SEC v. Caledonian Bank Ltd., No. 15-cv-894 (S.D.N.Y. Nov. 10, 2015), DE 140. The long and short of it is that SEC alleged that a Cayman Islands bank and broker had sold stock of four penny stocks as part of a massive pump and dump scheme and made dozens of millions of dollars from this scheme. It turned out that the shares were not Caledonians'--they were its customers, and all that Caledonian received from these sales were commissions. The Court, however, had frozen assets of both Caledonians--$76 million for the bank alone--and the bank went under after a bank run. The damage was done. As the Court observed in its Opinion and Order, 31:

As the 'statutory guardian' of the nation's financial markets, the SEC is imbued with enormous powers to protect the investing public. It can halt securities trades and seek to freeze-through its representations to a court-the assets of any institution. However, the SEC's canon of ethics cautions: "The power to investigate carries with it the power to defame and destroy." 17 C.F.R. § 200.66. Judges rely on the SEC to deploy those powers conscientiously and provide accurate assessments regarding the evidence collected in their investigations. In that way, the integrity of the regulatory regime is preserved. 
This case reveals the dire consequences that flow when the SEC fails to live up to its mandate and litigants yield to the Government's onslaught. During an ex parte proceeding to freeze assets, where the adversary process is not in play, the SEC has an obligation to timely alert the court to foreseeable collateral damage. By overstating its case, the SEC can do great harm and undermine the public's confidence in the administration of justice. And that damage can be compounded when financial institutions, anxious to appease a regulator, submit to unconscionable terms and permit their depositors' assets to be held hostage without seeking immediate relief from a court. As this case demonstrates, these concerns are not hypothetical. 
Judge Pauley focused most of its ire on the fact that, at the same time as fatally false allegations were made in a complaint developed by the Home Office, the New York Regional Office--supposedly unknown to the HO people--was working on another case involving overlapping facts, and another group in the HO had proof that Caledonian's sales were as broker, and not principal. (Rather than get deeper into the weeds, I refer the reader to the Opinion and Order for the depressing story.) 

Thus, the Court wrote plaintively: "It is hard for this Court to believe that the SEC does not have systems in place to ensure that enforcement and regulatory staff are aware of investigations with common facts or the same individuals or entities. And it is hard to believe that those charged with overseeing enforcement are not monitoring activities to avoid needless duplication of effort." Id., 14.

If only the Court knew that the problem goes deeper than the left hand not knowing what the right hand is doing (or, perhaps more bluntly, the index finger of the left hand does not know what the pinkie was doing.) The problem here was that the facts alleged were not true. How can this happen? All too easily.

I have long contended that one of the principal problems with the SEC's enforcement efforts is how often the facts that the SEC alleges in its complaints filed in court (or with an in-house ALJ) are simply inaccurate. There is a rather simple solution to this problem: make sure that a senior staff person at the SEC carefully reviews for accuracy every staff "action memorandum"--the memorandum prepared by the enforcement staff and addressed to the full Commission, in which the facts underlying a recommended enforcement action are laid out. In my experience, in-depth review has never been the norm at the SEC. The reasons traditionally given vary--lack of manpower, lack of time, desire not to offend staff persons by, in effect, showing lack of "trust," etc. Obviously I do not know whether this was done in this case. Maybe it was. If so, it was not done with the required attitude of "prove it!". 

I have urged Congress, when looking at the SEC, to insist this simple remedy be made the rule. Make sure that every case that is brought, whether it's going to be settled or litigated, is based on facts that can be proven. How anyone could argue against that is beyond me. The damage done to innocent people by false SEC allegations is devastating. True, it may not be happening to Goldman Sachs or Citigroup or the like, so The New York Times or The Wall Street Journal may be too busy to focus on what occurs here. But it's a damned scandal, anyway, and it should be remedied, once and for all.

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