Wednesday morning marked the confluence of two events. First, like the rest of the world, I awoke to the reality of the results of the presidential race. Then, as soon as I got to the office, I received the results of a case (on which I have previously blogged) that the SEC’s Division of Enforcement had appealed to the SEC after we beat them – against staggering statistical odds – in front of an Administrative Law Judge. Sadly, but, perhaps, not surprisingly, the SEC reversed the ALJ, found liability – but only some, as I discuss below – and imposed penalties.
Well, to start with the good news: my clients are appealing the SEC’s decision, likely to the U.S. Circuit Court of Appeals for the Fifth Circuit. Why is this good news? Cynics among you will say it is because I get to bill more hours to this case, but, while you are technically correct, that is hardly what makes this decision by my clients to appeal a good one. Rather, it is because there are problems with the SEC’s very system of administering cases, because the SEC specifically managed to get it wrong here, and because, maybe worst of all, it is a case that should never have been brought. Let’s look at these.
First, the SEC’s system. When this complaint was issued by the Division of Enforcement, it was first authorized by the SEC itself, i.e., the actual five individuals (or however many were actually in place at the time) who comprise the Commission. Obviously, if those individuals did not believe that the allegations against my clients were viable, they would not have authorized the issuance of the complaint. When the Division of Enforcement lost the case before the ALJ, under the SEC’s rules of procedure, it appealed that decision to the Commission, that’s right, the very same individuals who had authorized the complaint in the first place. Can you see why, then, that I said the Commission’s decision to reverse the ALJ is not surprising? I mean, if they found the facts sufficient to justify a complaint being filed, it is hardly a stretch for them later, when presented with the same facts – but this time in the context of the Division’s appeal – to find them compelling again. Does this sound in the slightest bit fair? How can the Commission’s review of the ALJ’s decision possibly be unbiased?
Second, putting aside the unfairness of the system that allows the same people who authorized the issuance of the complaint to decide the appeal, it remains that the SEC got it wrong. As the Division of Enforcement is wont to do, when it offered my clients the opportunity to settle the proposed charges prior to any complaint being issued, it was willing to keep out any findings of scienter-based fraud. When my clients ultimately declined to settle, however, the Division got angry, and so it included scienter-based allegations in the complaint (along with non-scienter-based allegations). In his Initial Decision, the ALJ dismissed both the scienter- and non-scienter-based charges, highlighted by his conclusion that after observing my clients’ “demeanor under cross-examination, it is difficult to imagine them trying to defraud anyone, let alone their investment clients.”
In its decision reversing the ALJ, the SEC nevertheless cited that specific finding, with approval, and gave it “significant weight.” But, despite concurring that my clients were incapable of defrauding anyone, the SEC proceeded to conclude that my clients were guilty of “negligence,” under Section 206(2) of the Advisors Act. The problem is, “negligence” under 206(2) still constitutes fraud. Thus, if my clients were well intended and incapable of defrauding anyone, it would not seem to matter if the charge was scienter-based fraud or non-scienter-based fraud; both should have been treated the same. Somehow, however, the SEC managed to figure out a difference.
Making it worse, the SEC imposed second-tier civil penalties, even though based on its finding of mere “negligence.” Such penalties require a finding of at least recklessness, and permit the SEC to impose a penalty of up to $80,000 for an individual for each such act or omission. A first-tier penalty, by comparison, which does not require negligence, can only be as high as $7,500. In light of the SEC’s conclusion that the ALJ properly found that my clients were incapable of committing fraud, it is downright outrageous for it to have imposed second-tier penalties.
My last issue is with the SEC’s agenda itself. Tons of articles were written after the SEC recently closed its books for the last fiscal year about how the Commission set a new record for actions brought. The consensus view – and one to which I adhere – is that this was a result of the SEC’s acknowledged “broken windows” approach to Enforcement, bringing formal actions for relatively minor violations in a supposed effort to avoid bigger ones. The issue is not only that such minor violations are better off dealt with in some manner other than being made the subject of administrative proceedings, but, when such proceedings are instituted, the Division of Enforcement routinely over-charges the violations, and characterizes them as intentional, scienter-based fraud, as it did here. Good corporate citizens are branded as fraudsters, and unnecessarily so. Things need to change.
Which brings me back to the election. Despite people – including people I truly respect – providing reassurances that things won’t be so bad, and urging the electorate to keep an open mind as the new administration’s agenda is fleshed out, some of the media spins out worst-case scenario after worst-case scenario. But, perhaps there is at least one ray of hope on which both parties can agree. It seems clear that the president-elect is not a fan of regulation, or the SEC, or its present chairwoman. If this means that “broken windows” goes the way of Dodd-Frank, or the Affordable Care Act, among other things, at least as promised during the campaign, then, hopefully, people like my clients will no longer find themselves in the bizzarro world that is the present-day SEC Enforcement protocol.
 For what it’s worth, the SEC’s decision was made by the three current members of the Commission. Although he agreed with the finding that my clients were liable for negligence, the one Republican Commissioner dissented from the imposition of the civil penalties! Draw your own conclusions.