SEC Practice of Settling Enforcement Actions Without Requiring Defendants to Deny or Admit to Allegations Gets Support from Federal Judges and Democrats

At a House Financial Services Committee hearing on May 17, a number of Democratic lawmakers spoke out against the Securities and Exchange Commission’s practice of settling securities enforcement actions without making defendants deny or admit to the allegations. There is concern that companies might see this solution as a mere business expense.

The hearing was spurred by U.S. District Court for the Southern District of New York Judge Jed Rakoff’s rejection of the SEC’s $285 million securities settlement with Citigroup (C) over its alleged misrepresentation of its role in a collateralized debt obligation that it marketed and structured in 2007. Citigroup had agreed to settle without denying or admitting to the allegations.

Rakoff, however, refused to approve the deal. In addition to calling for more facts before the court could accurately judge whether or not to approve the agreement, he spoke out against the SEC’s policy of letting defendants off the hook in terms of not having to deny or admit to allegations when settling. The U.S. Court of Appeals for the Second Circuit later went on to stay Rakoff’s ruling that SEC v. Citigroup Global Markets, Inc. go to trial.

At this Congressional hearing, a number of the lawmakers were “sympathetic” to Rakoff’s reasoning, said Rep. Carolyn Maloney (D-N.Y.). Rep. Al Green (D-Texas) stressed the importance of holding businesses accountable for alleged wrongdoings. The Democrats, however, were clearly mindful of the fact that SEC did not have the resources to take on additional, lengthy lawsuits, as well as of the delays that a change in the SEC’s current settlement policy would cause for investors seeking financial recovery, and they did not call for any actual policy change.

Meantime, SEC Enforcement Director Robert Khuzami, who was also at the hearing, talked about how not only would securities cases take longer to resolve if defendants were made to deny or admit wrongdoing when settling, but also, there would be a lot less settlements.

His views were backed by a number of attending Republican lawmakers who support the SEC’s settlement policy. Committee Chairman Spencer Bachus (R-Ala.) said he felt that agencies should have the primary discretion when it comes to deciding whether to settle or try a case, while Vice Chairman Jeb Hensarling (R-Texas) also said that eliminating the SEC’s policy would result in a huge increase in the number of securities lawsuits.

Earlier this month, at the Alan B. Levenson Symposium in Washington, current and former judges spoke for federal judges’ right to turn down settlement agreements if they didn’t think they had been given enough facts or considered the deals to be fundamentally unfair. They spoke about the importance of judicial independence and how judges shouldn’t be forced to merely rubber stamp settlement deals. For example, U.S. District Court for the District of Columbia Judge Beryl Howell said that regardless of whether parties had agreed to a settlement, a court still must be given sufficient facts to be able to determine whether a deal is reasonable.

Contact our SEC securities lawyers at Shepherd Smith Edwards and Kantas, LTD, LLP today.

Examining the Settlement Practices of U.S. Financial Regulators, House.gov, May 17, 2012

Courts Must Reject Settlement Pacts Where Necessary, Former, Current Judges Say, Bloomberg BNA, May 15, 2012

SEC v. Citigroup Global Markets, Inc., Justia (the Opinion and Summary)

More Blog Posts:
SEC Looks Likely to Win Appeal in $285M Securities Settlement that Judge Rakoff Rejected, Institutional Investor Securities Blog, March 15, 2012

Citigroup’s $285M Settlement With the SEC Is Turned Down by Judge Rakoff, Stockbroker Fraud Blog, November 28, 2012

Citigroup’s $75 Million Securities Fraud Settlement with the SEC Over Subprime Mortgage Debt Approved by Judge, Stockbroker Fraud Blog, October 23, 2010