SEC Argues Common “Facts” Are Not Common “Issues of Fact” — I Kid You Not

Yesterday, we described the SEC’s desperate attempt to nullify the assignment of the case Timbervest, LLC v. SEC to Judge Leigh Martin May.  That was based on the argument that the other cases already before Judge May identified as “related cases,” Hill v. SEC and Gray Financial Group v. SEC, were not actually “related cases” because “the cases do not ‘involve the same issue of fact,’” and they “do not arise out of the same event or transaction.”  See SEC, Desperate To Avoid Judge May, Challenges Related Case Designation in Timbervest Action.  Timbervest argued this was wrong because “they all arise out of the same facts concerning how SEC administrative law judges (‘ALJs’) are hired and what authority and powers SEC ALJs possess,” and the factual differences in the underlying SEC allegations in each case have no bearing on the constitutional issues raised in the respective complaints in these actions.

Today, the SEC filed its response.  It can be read here: SEC reply in opposition to related case designation.  It acknowledges that the cases have some common “facts” but argues that common “facts” are not common “issues of fact.”  In the SEC’s words, “At best, Plaintiffs’ argument boils down to the contention that these cases involve some of the same ‘facts,’ rather than ‘issues of fact.’”  The SEC’s argument turns on the assertion, made without citation, that an “issue of fact” must be a “dispute of fact,” and because the SEC will not dispute the common “facts” in these cases, they cannot be considered “issues of fact” because they will be undisputed.  (“their arguments ignore the distinction between a mere ‘fact’ and an ‘issue of fact,’ i.e., a dispute of fact”).  The best the SEC can do to support this view is a cite to Black’s Law Dictionary, which is quoted as saying: “An ‘issue of fact’ is ‘[a] point supported by one party’s evidence and controverted by another’s.'”  I don’t have a copy of Black’s Law Dictionary handy, but I guarantee you this purported definition had nothing to do with the assignment of cases to district court judges.

I have to chuckle.  No wonder lawyers are not often trusted by ordinary folks.  They concoct these arguments whether they make sense or not.  What ordinary person out there would think that two paragraphs with identical facts would not have the same “issues of fact”?  In any case, that doesn’t really matter here because it is patently obvious that in the context at issue here — how to assign a newly-filed case — a court (actually, a clerk of court) cannot possibly apply the standard the SEC passionately espouses because there is no way to determine at that stage which “facts” will or will not be “disputed.”  At this stage, there is only one source that can be used to assign the case — the allegations in the complaint.  If the allegations in the complaint involve factual contentions that materially overlap the facts alleged in another pending case, then the “related case” designation should be appropriate.  Last I checked, no clerk of court sought input from the defendant in an action about what factual allegations would be disputed before making a “related case” assignment.  Got a cite for that, SEC?

I wonder whether, having made this cute argument, the SEC will argue against being judicially estopped from disputing any of the facts alleged in the complaint when it files its Answer.  SEC counsel has now represented there are no material “disputed” facts, right?

I also wonder what Judge May is thinking about all of these machinations conjured up by the SEC solely to avoid having her preside over the Timbervest complaint?  If she has a sense of humor, she’ll chuckle as well, and move on to the job of deciding whether the few important facts that differ between Timbervest v. SEC and Hill v. SEC — which involve the different status of the respective administrative actions when the complaints were filed — alters the jurisdictional analysis in her Hill opinion.

Straight Arrow

June 18, 2015

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One thought on “SEC Argues Common “Facts” Are Not Common “Issues of Fact” — I Kid You Not

  1. Pingback: SEC Gambit To Avoid Judge May in Timbervest Case Seems To Have Failed | Securities Diary

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