Consenting Adults: D.C. Circuit Tells Press To Stay Out Of SEC-AIG Relationship

by Orrick - Securities Litigation and Regulatory Enforcement Group
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What happens between a mature multinational insurance corporation and its regulator is nobody’s business, or so says the United States Court of Appeals for the D.C. Circuit, which issued an opinion in SEC v. AIG on February 1, telling the press that it couldn’t have reports prepared by an AIG consultant under a consent decree with the SEC.

In 2004—years before AIG would rise to infamy in the financial collapse—the SEC charged AIG with securities violations, and the result was a consent decree requiring, among other things, that AIG hire a consultant to review AIG’s transaction policies and procedures and to prepare reports. The court supervising the decree later allowed disclosure of the consultant’s reports twice: to the Office of Thrift Supervision and the House of Representatives. Sue Reisinger, a reporter for Corporate Counsel and American Lawyer, wanted to know what the consultant found at the government bailout recipient. Not being a regulator or constitutionally-created legislative body, Ms. Reisinger turned to the courts for access. The district court found that the consultant’s reports were “judicial records” to which Reisinger had a common law right of access. The court of appeals disagreed.

Whether something is a judicial record depends on the role it plays in the adjudicatory process. The court of appeals noted that the consultant’s reports were not relied upon by the district court in any way, and thus never found their way into the fabric of the court’s record or decision-making process. Though merely filing the reports with the court would not have been sufficient to transform them into the type of judicial records Reisinger sought, the court of appeals held that filing was “very much a prerequisite.” Thus, while the terms of the decree requiring a consultant were surely important to the district court, the court was agnostic as to the eventual content of the reports. In other words, Reisinger had the substantive cart before the procedural horse, and whatever those reports eventually contained, their import did not work to make them judicial records.

Does this mean that the public will be forever foreclosed from regaling their friends and family with the fascinating tales of transaction procedures these consultant reports must surely hold?

AIG conceded that if the district court in its supervisory role is one day called upon to enforce the consent decree, the reports may become relevant, graduate to the vaunted status of judicial record, and thus be subject to disclosure. Though not addressed by the court of appeals, the court’s emphasis on the significance of filing a document with the court and the court relying on the document says nothing about discovery of such material. Indeed, one could imagine a scenario where a plaintiff seeks such reports in discovery in a civil securities suit and perhaps incorporates them into a summary judgment motion. In that scenario, a regulator like the SEC might fight the discovery request to begin with, arguing that the reports are agency records not subject to disclosure. But if the reports made their way into the record and the court’s thought process, under the D.C. Circuit’s reasoning, they might yet see the light of day. Until then, companies in “consensual” relationships with the SEC can take some comfort in the fact that the courts will not make every private detail public.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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