Friday, February 8, 2013
I missed the story when it appeared, but I ran into Reuters' Suzanne Barlyn at Brooklyn Law School's Conference on the Importance of Compliance today, and she filled me in on the news that FINRA CEO Rick Ketchum has backed away from advocating that FINRA take on SRO responsibilities for investment advisers. In an interview Ketchum said there was "no sign it can convince lawmakers in Washington to support a change in the way the advisers are regulated anytime soon." He warns that investors continue to be at risk because the SEC does not have the resources to examine investment advisers on a regular basis.
So what's the solution? My understanding is that investment advisers sensibly would prefer one regulator over two and thus resist the idea of any SRO. Will the SEC be given the resources to expand its examination program over investment advisers?
William Alper, a Manhattan attorney, attended the oral argument today in SEC v. Citigroup at the request of the Securities Law Prof Blog and filed the following report. He cautions that it is difficult to convey accurately the Q&A, but I think you'll agree that he has done a darn good job in capturing the essence. He notes that although the oral argument was scheduled for only 29 minutes, it went on much longer than that. The judges asked many questions and were obviously engaged.
Securities and Exchange Commission v Citigroup Global Markets Inc.
February 8, 2013
United States Court of Appeals
For the Second Circuit
Judges: Rosemary S. Pooler, Raymond J. Lohier, Jr., Susan L. Carney
The courtroom was so overcrowded that additional seating was set up in the ante room where more than 50 people watched on closed circuit TV. SEC v Citigroup was first on the calendar and once the argument was concluded nearly everyone inside or outside the courtroom left.
Counsel for SEC began by arguing that the District Court (Judge Rakoff) had adopted an inappropriate “bright line” rule. Question was asked whether the District Court had said held the parties had provided insufficient information to warrant approval of the settlement/injunction but that the SEC contended the information provided was sufficient. Counsel answered that the information provided was sufficient. Asked by a judge what information was available to Judge Rakoff, SEC counsel referred to the Complaint, the settlement agreement negotiated by counsel at arms’ length, that it contained no ambiguity and that it did not require excess resources to enforce.
Asked by a judge whether the allegations in the Complaint were sufficient to support approval of the settlement, SEC counsel argued that they were. He was then asked whether more information had been available to the Court which approved settlement in the Bank of America case, counsel agreed, but noted that Bank of America had agreed to submission of a statement of facts without admitting to any of them and had given the District Court additional evidence.
One of the judges noted that Judge Rakoff had not been satisfied with the answers supplied by the parties to his 9 questions. SEC counsel agreed, but noted that many of Judge Rakoff’s questions were policy questions and that Judge Rakoff had complained, in refusing to approve the settlement, that he’d been provided no facts established by trial or by admission.
A judge asked whether Judge Rakoff should not have asked for more facts and SEC counsel said that under the law, it wouldn’t have been necessary for approval of the settlement.
A judge asked whether the District Court was entitled in deciding whether to approve the settlement to look at the complaint in Stoker. SEC counsel replied that it was beyond the legitimate scope of the District Court’s review of the settlement. That SEC refused to bring additional charges in light of Stoker was permissible, because SEC, as a government agency, has discretion and the District Court is not entitle to go beyond that. The District Court’s power to review the settlement is limited to the injunctive relief, e.g., to determine whether there were ambiguous terms in the settlement.
Q: How could the District Court assess whether third parties would be harmed by the settlement with only the Complaint to go on? Could it ask 3d parties to submit facts?
A: That could happen in, e.g., a Title VII case, where the potential for harm to 3d parties is much more apparent, but not here.
Q: Why was an injunction necessary at all, in light of the fact the SEC almost never takes action to enforce them?
A: The possibility of enforcement proceedings is “useful” and has collateral effect as, for example, in SEC v. Cioffi, (EDNY(?)).
Judge Rakoff asked for admissions from Citigroup that could be used for collateral estoppel purposes.
Q: What if the district court asked for facts “short of admissions”?
A: The District Court had ample “evidence” from the complaint, the SEC’s 28 page response to the District Court’s 9 questions and Citi’s 20 page response to them. All of the questions were fully answered. WARNING: Corporations won’t settle if findings that could be used for collateral estoppel purposes were made or required. 2d Circuit precedent states that the District Court shouldn’t second guess the agency and defendant.
Q: Didn’t the District Court say it could not exercise its judgment and couldn’t make a judgment?
A: District Court said that either trial or admissions [to establish facts] were required.
Q: What if the District Court required something more than it was given, but short of admissions, should the Court of Appeals remand?
A: Many more words with colorful analogies but, “No.”
Q: Didn’t Harvy Pitt say the SEC could meet the District Court’s requirements?
A: The law doesn’t require admissions by settling party to settle or for District Court to approve settlement.
Q: The “admissions” argument is a “red herring” because the District Court didn’t and couldn’t demand them.
Pro Bono Counsel's Argument
Basic disagreement among the parties is what the District Court actually required of the parties: Appellants argue he required admissions or a trial to establish facts. That’s just not so.
Q: District Court’s Order, p. 4, states that the court hadn’t been given proven or admitted facts. Doesn’t that require admissions or trial to establish facts?
A: District Court didn’t require an admission of liability, but rather facts that could be the basis for proof of liability. The “proof” could be documents, deposition testimony.
Q: So the Court’s ruling requires proof from the parties?
A: None was required, but there’s no rule that the District Court can’t ask, and Citi did provide evidence in support of it’s application to the Court for a stay, stating that courts can require evidentiary submissions. The District Court also had admissions from the 2 criminal cases.
Q: Did the acquittal in Stoker support the settlement in this case?
A: Yes, it would have, but it occurred after the District Court had already made its decision in this case. It might be sufficient now [on remand].
Q: You agree that the District Court can’t require an admission of liability?
Q: Would it be inappropriate to ask for facts necessary to establish liability?
A: It isn’t necessary to determine liability and the District Court’s questions and the answers did not.
Q: Did the Bank of America settlement establish facts estopping B of A?
Q: But Bank of America settlement led to the filing of many lawsuits based on the facts of that case?
A: Yes, but without collateral estoppel/factual findings that could be used in subsequent cases.
Q: Why is an Article III judge entitled to determine what’s necessary in the public interest instead of the relevant agency?
Rule 23, and the fact that the settlement incorporated an injunction subject to judicial enforcement.
Q: SEC acknowledged a gap between total damage caused by the alleged acts and the amount Citigroup agreed to pay.
A: This case is different from Stoker: No criminal charges, not allegations of Citi’s scienter.
Q: Why isn’t it the SEC’s responsibility to determine the strength of its own cases, as other agencies and prosecutors do?
A: The SEC can, it is entitled to deference, but the District Court is not required to approve automatically what the SEC has agreed to. It has its own standards to apply and uphold.
Q: SEC/Citi argue that many facts were given to the court.
A: No evidence, e.g., deposition testimony, was submitted.
Q: It isn’t sufficient for the agency to state important facts, the District Court may require sworn testimony, affidavits?
A: The submissions were “lawyer talk”, not “proof” or “evidence”.
Q: In light of the results in Stoker, does the District Court now have sufficient information?
Counsel (Wing): The statement at the end of the District Court’s opinion was a “rhetorical flourish”.
Q: After Stoker, what is there left for the District Court to do on remand?
A: Stoker resolves Judge Rakoff’s questions and shows why the District Court was properly concerned.
Q: It showed the weakness of the SEC’s case?
A: Yes, but now the District Court has that information to us in doing its job.
Rule 23 is very different from this case because District Courts have a fiduciary responsibility to protect others, not, as here, where there’s an agency entitled to deference.
Q: What relief should we give, reverse and approve the settlement?
Q: In light of Stoker, should we direct approval of the settlement on remand or just give the District Court the opportunity to take Stoker into account?
A: Yes, and perhaps give the parties a chance to back out of the settlement.
Q: Can’t we remand with an opportunity for the parties to appeal immediately if they wish?
A: Stoker is not a case to which Citi was a party – it can’t be the basis for fact finding in this case.
Wednesday, February 6, 2013
Tuesday, February 5, 2013
Monday, February 4, 2013
FINRA Requests Comment on Proposed FINRA Rules Governing Markups, Commissions and Fees in Regulatory Notice 13-07. This is part the process to develop a new, consolidated rulebook (the Consolidated FINRA Rulebook).
FINRA is proposing several changes to the proposed rules. These changes include, among other things, amendments to: (1) retain the 5% markup policy in NASD IM-2440-1 (Mark-Up Policy); (2) revise certain of the relevant factors used to determine the reasonableness of markups and commissions; (3) eliminate the requirement to provide commission schedules for equity securities transactions to retail customers; and (4) extend the proposed markup rules to transactions in certain government securities.
The text of the proposed rules is here. Deadline for comments is April 1, 2013.
The financial press is reporting that the U.S. Department of Justice, as well as state officials, plan to file civil fraud charges against Standard & Poor's Ratings Service, charging that the firm fraudulently rated mortgage bonds. This would be the first government suit against a ratings firm related to the financial crisis. The company issued a statement stating that any suit would be "entirely without factual or legal merit."
Settlement discussions reportedly broke down because the government was talking about a settlement figure around $1 billion, a somewhat higher figure that the parent company's profits for last year.
NYTimes, Dealbook, U.S. and States Prepare to Sue S.&P. Over Mortgage Ratings
Sunday, February 3, 2013
Regulation FD in the Age of Facebook and Twitter: Should the SEC Sue Netflix?, by Joseph Grundfest,
Stanford University Law School, was recently posted on SSRN. Here is the abstract:
The Staff of the Securities and Exchange Commission has announced its intention to recommend to the Commission that enforcement proceedings alleging a violation of Regulation FD be instituted against Netflix, Inc. and its CEO, Reed Hastings, because of a posting on Mr. Hastings’ personal Facebook page. Mr. Hastings’ webpage had more than 200,00 followers, including reporters who covered the posting in the traditional press. The posting was also the subject of a tweet by TechCrunch, which has approximately 2.5 million followers on Twitter.
This article is in the form of an amicus Wells Submission suggesting that the Commission would, for nine distinct reasons, be prudent not to initiate an action on the facts of the Netflix posting. In particular, the public record suggests that the posting did not contain material information, was not a selective disclosure, and because of its spread through social media constituted a “broad non-exclusionary distribution” that did not violate Regulation FD. A prosecution would also diverge dramatically from all prior Regulation FD enforcement proceedings, and would violate the Commission’s prior representations not to “second guess” good faith efforts to comply with Regulation FD. In addition, the posting is not inconsistent with the Commission’s 2008 Guidance on the Use of Company Webpages - - guidance that is seriously outdated because of the emergence of social media.
The enforcement action on the facts of the Netflix posting would, moreover, raise serious constitutional questions. Regulation FD is a restraint on truthful speech and, as applied on the facts of a Netflix prosecution, would involve discrimination against social media and in favor of more traditional media channels. There is also doubt that Regulation FD would pass muster as a restraint on commercial speech, particularly in light of the Supreme Court’s recent decision in Sorrell and the Second Circuit’s decision in Caronia. A loss on constitutional grounds would also call into question a large panoply of Commission regulations that act as restraints on truthful speech, including, without limitation, quiet period restrictions and restriction on communications with analysts.
Further, the issuance of the Wells Notice has already chilled the use of social media as a form of corporate communication absent the filing of a Form 8-K with the Commission. It also constitutes a questionable allocation of scarce Commission resources and raises questions that should be addressed through rulemaking and not through prosecution. The submission closes with suggestion for a reformulated Regulation FD that should be better able to pass constitutional muster and that would embrace social media technology rather than confront it.
What is a Security in the Crowdfunding Era?, by Joan MacLeod Heminway, University of Tennessee College of Law, was recently posted on SSRN. Here is the abstract:
With the advent of the crowdfunding era, financial interests in business enterprises may look less like investment instruments commonly known as common stock or debentures, and more like loans, gambling bets, rights to consumable products or services or charitable or other nonprofit donations. A closer look at innovations in interests, instruments and offerings in the crowdfunding era preceding the enactment of the Jumpstart Our Business Startups Act (JOBS Act) offers a basis for comparisons and contrasts that raises questions about the categorization of instruments regulated as securities. These and other questions are important to a rethinking of the structure of financial and financially related regulation in and outside the realm of U.S. securities law.
Specifically, innovations in financial interests and instruments that immediately preceded the JOBS Act raise a number of important questions about regulatory authority and interpretation. How do we classify the instruments that represent complex or hybrid financial interests in business enterprises? What area of regulation should apply to them? Why? What do the answers to those questions tell us, if anything, about the current (and possible future) structure and function of domestic and international financial regulation? This essay preliminarily explores the features of certain financial instruments in an effort to begin to answer these questions by focusing on what a security — a statutory and regulatory category including specific financial instruments — is and should be under federal securities law.
Reforming LIBOR: Wheatley versus the Alternatives, by Stephen M. Bainbridge, University of California, Los Angeles (UCLA) - School of Law, was recently posted on SSRN. Here is the abstract:
The London Interbank Offered Rate (LIBOR) is the trimmed average interest rate for interbank loans by a panel of leading London banks. LIBOR is the most widely used benchmark rate. An estimated $350 trillion in financial products are based on the LIBOR rate.
In late June 2012, a major scandal broke when Barclays PLC — one of the panel banks whose rates went into calculating LIBOR — agreed to pay $453 million in fines to UK and US regulators to settle allegations that Barclays had attempted to manipulate the LIBOR rate. The probe by multiple national regulators around the world quickly spread to include several other global banks.
In response, the United Kingdom’s Chancellor of the Exchequer charged a commission led by Martin Wheatley with conducting an independent review of the setting and usage of LIBOR. In September 2012, Wheatley released a report proposing a comprehensive 10-point reform plan. In October, the UK Government announced that it accepted “the recommendations of Martin Wheatley’s independent review of LIBOR in full.”
Even though Wheatley’s recommendations likely will have been implemented by the time this article appears in print, they are still deserving of analysis. First, changes and amendments may be necessary to further improve the process, perhaps including some of those suggested in this Article. Second, while LIBOR is one of the most important benchmark rates, it is not the only such rate. Some of these other benchmarks are already under scrutiny. Assessing the merits of various LIBOR reforms therefore may be helpful as regulators evaluate whether these other benchmark rates require similar reform.
In light of LIBOR’s systemic importance as a global interest rate benchmark and the compelling evidence of rate manipulation by panel banks, reforming LIBOR was both a political and economic incentive. This Article explores a number of alternatives that were available to the UK government.
The Article concludes that leaving the problem to market forces had failed and, moreover, was politically unfeasible. Switching to a government-supplied alternative benchmark was both impractical and unwise as a policy matter, as was installing a government agency as a replacement for BBA as the LIBOR administrator. Although vesting the LIBOR administrator with sufficiently strong intellectual property rights to ensure an adequate stream of licensing fees to provide adequate incentives for the administrator and panel banks is an important part of a reform package, but — contrary to what some commentators have suggested — is not viable as a stand-alone reform.
In contrast to the alternatives, the Wheatley Review provides a comprehensive reform package that has proven politically attractive and seems likely to significantly enhance LIBOR’s credibility and attractiveness as a interest rate benchmark. To be sure, the Wheatley regime is not perfect. To the contrary, this Article suggests a number of ways in which it can be expanded and improved. Over all, however, the analysis of the Wheatley Review herein strongly suggests that it will prove a viable starting point as a blueprint for reforming LIBOR and other interest rate benchmarks.