“Upon further review,” as they say in the NFL, was the SEC’s recent “Division of Enforcement Approach to Forum Selection in Contested Actions,” entitled to a better call than we gave it in our Friday post: SEC Attempts To Stick a Thumb in the Dike with New Guidelines for Use of Administrative Court? The definitive answer is: “No.” The SEC clearly fumbled the ball with this publication, and made itself look pretty silly doing it. I’m going to add a penalty flag.
Our Friday post did not discuss any of the SEC’s vague descriptions, all-encompassing caveats, prevarications, and self-congratulatory pats on the back (to itself) in this document, so we will address some of them here. This SEC memo is the equivalent of one of those “what were they thinking?” moments we now see on the internet all of the time, like a selfie someone might take (and actually post for all to see) of the author grinning before some solemn background, like the Vietnam War Memorial. It’s an embarrassment for what it says and what it fails to say about the serious issue of assuring due process and fair treatment in SEC enforcement actions, particularly as to non-regulated persons.
“When recommending a contested enforcement action to the Commission, the Division recommends the forum that will best Utilize the Commission’s limited resources to carry out its mission.”
A false and misleading statement in at least two respects. The Director of the Division of Enforcement already admitted that the Division chooses its administrative forum to pressure targets into settlement (“I will tell you that there have been a number of cases in recent months where we have threatened administrative proceedings, it was something we told the other side we were going to do and they settled”), and that he believed federal court juries were not properly adhering to the required burden of proof (“Frankly, I think juries, while they’re instructed that we have a preponderance standard, I think apply a higher standard to us than preponderance”). See SEC Could Bring More Insider Trading Cases In-House. That has nothing to do with “best utilizing resources”; it has to do with maximizing the chance to win or force a settlement on SEC terms. One of the key reasons for choosing the administrative forum is because it has a better chance of winning there, not to make careful use of enforcement resources. And, as the Wall Street Journal recently documented, that is precisely the result. The Division also makes no real effort to “best utilize” its resources in any other enforcement context. It badly allocates its ample staff resources on investigative matters that have little overall public policy consequence. That includes the so-called “broken windows” approach to enforcement, which focuses staff attention on what the SEC itself describes as minor violations. But it also includes expensive litigated cases involving trivial violations of law, even if all the allegations could be proved. (See There They Go Again: SEC Wasting Taxpayer Dollars on Trivial Perquisite Enforcement Litigation in SEC v. Miller.)
“There is no rigid formula dictating the choice of forum. The Division considers a number of factors when evaluating the choice of forum and its recommendation depends on the specific facts and circumstances of the case. Not all factors will apply in every case and, in any particular case, some factors may deserve more weight than others, or more weight than they might in another case. Indeed, in some circumstances, a single factor may be sufficiently important to lead to a decision to recommend a particular forum. While the list of potentially relevant considerations set out below is not (and could not be) exhaustive, the Division may in its discretion consider any or all of the factors in assessing whether to recommend that a contested case be brought in the administrative forum or in federal district court.”
A long-winded way of saying: “We are going to list a whole lot of factors below, but there is no way to know which ones we will decide are important, or whether we will decide other unmentioned factors are more important. That is, the Division will choose a forum on whatever basis it thinks makes sense, and we are not going to give you any way of predicting or understanding that decision”
“The Division may in its discretion consider . . . [t]he cost ‐ , resource ‐ , and time ‐ effectiveness of litigation in each forum. . . . In general, hearings are held more quickly in contested administrative actions than in contested federal court actions. . . . When a matter involves older conduct, this may allow for the presentation of testimony from witnesses who have a fresher recollection of relevant events.”
In other words, since administrative proceedings move more quickly, that can justify our choice of that forum in pretty much any case. And in an “older case” — which means, by the way, cases that Division of Enforcement lawyers have sat on for years on end — because our dilatory investigation makes it virtually impossible for any witness to remember accurately what really happened, we will lean towards the administrative forum because, in our discretion, we now think it is important to move at a breakneck pace, and not allow the defense the time to develop a complete understanding of the record or what witnesses may say at trial.
“The additional time and types of pre‐trial discovery available in federal court may entail both costs and benefits, which should be weighed under the facts and circumstances of a case. Although pre‐trial discovery procedures exist in both administrative proceedings and district court actions, the mechanisms of discovery are different. For example, in administrative proceedings, the Division must produce to respondents all non‐privileged documents from its case file and the Division has Brady and Jencks obligations, requirements that do not exist in civil district court litigation. On the other hand, depositions are available in district court but generally not in administrative proceedings.”
This is no more than a transparent effort to create the misleading impression that a sow’s ear could be something other than a sow’s ear. No aspect of the discovery limits in administrative proceedings are beneficial to a respondent. The restrictions on discovery may be the single-most unfair aspect of these proceedings, but the SEC portrays them here as cutting both ways. Hogwash! (In keeping with the sow metaphor.) The lack of depositions, the inability to pursue reasonable discovery against the SEC, the more restrictive approach to third-party discovery (including that every subpoena must get prior approval from the ALJ, inevitably over opposition from the Division), and the incredibly short time-frame for doing any independent development of evidence, all mire the administrative respondent in a sloppy mud pen. The SEC, however, had many years to develop its own case (and now uses its own delay as a reason to avoid court!), and no obligation to do so in a way that actually makes a fair record (in investigative testimony, leading and misleading questions, hiding key evidence from witnesses, vague questions that can be later misconstrued, and avoiding any discussion of exculpatory evidence, are the norm). So the much-touted production of “all non-privileged documents from its case file” is a laugher as a benefit to the respondent. The same production would be required in court (and typically is made by the SEC at the outset without waiting for a request), and intelligent discovery requests will be able to garner all Brady and Jencks material as well. Not to mention the fact that the Division’s concept of what is “non-privileged” means they often refuse to produce many materials based on privilege claims (attorney-client, work-product, and the all-encompassing “deliberative process privilege”) that would not (and do not) withstand challenge in court. But administrative judges are much more reluctant to force discovery on the Division, or the SEC more broadly, than federal court judges.
“Administrative Law Judges, who adjudicate securities law cases, and the Commission develop extensive knowledge and experience concerning the federal securities laws and complex or technical securities industry practices or products. . . . If a contested matter is likely to raise unsettled and complex legal issues under the federal securities laws, or interpretation of the Commission’s rules, consideration should be given to whether, in light of the Commission’s expertise concerning those matters, obtaining a Commission decision on such issues, subject to appellate review in the federal courts, may facilitate development of the law.”
The hubris! This could be the most offensive factor of all. It suggests that administrative law judges and SEC Commissioners are better-suited to decide “unsettled and complex legal issues” to “facilitate development of the law” than federal court judges. Let me see if I have this right. An appointee not required to meet anything close to the standards that apply to federal judges is better to decide complex issues and the development of the law? And Commissioners, who have virtually no adjudicative experience at all when they are appointed, all of a sudden become better at considering “complex and unsettled legal issues” when they are confirmed? I think not. Nor does district judge Jed Rakoff, who gave the exact opposite view on this issue (moving cases from the federal courts to the SEC’s captive administrative court “hinders the balanced development of the securities laws”). See Judge Rakoff Slams SEC for Increased Use of Administrative Proceedings.
The SEC was not content here to talk about technical applications of SEC rules in the securities industry — as to which they could at least have a theoretical basis for making such an argument based on supposed agency expertise. They argue here that ALJs and Commissioners may be viewed as better able to decide complex legal issues wholly apart from technical SEC regulatory compliance issues — for example, whether a non-regulated corporate official engaged in fraud in some respect or another. There is no way to support the argument that ALJs or SEC Commissioners are better situated to decide complex and unsettled issues involving fraud allegations than federal judges. The obvious example is insider trading cases, as to which the law is so nuanced, and so bound up in considerations of fraud and fiduciary obligation, that federal court judges are much more likely to get it right. (The exact view expressed by Judge Rakoff: see Judge Rakoff PLI Speech.) That doesn’t even take into consideration the fact the federal judges (and juries) are not conflicted on these cases like the SEC Commissioners are. Only after having first approved the filing of a prosecution, and likely having rejected a proffered settlement as insufficient, do the Commissioners decide these cases, including whether to adopt views of the facts or the law that may be inconsistent with their own decision to prosecute.
As an attempt to make public policy, this document is an embarrassment. Its objective is not to determine when an administrative forum is a fairer and more appropriate forum in which to litigate enforcement actions against non-regulated persons. It is to provide a justification for any decision the SEC may make about where to litigate its cases, and to be able to argue that those decisions deserve deference because they reflect a reasoned agency determination under an adopted set of guidelines
The fact that Chair Mary Jo White signed off on such an atrocity is depressing, and, frankly, inexplicable.
May 11, 2015
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