Earlier this summer, SEC chair Mary Jo White told a Wall Street Journal conference that the Commission would in some circumstances depart from its longstanding policy of allowing defendants to settle cases without admitting or denying wrongdoing. She didn’t let Labor Day hit before putting the new plan into action.
You may remember that the SEC had alleged in June 2012 that Philip Falcone improperly “borrowed” $113 million from his advisory firm Harbinger Capital Partners to pay his personal taxes, secretly favored certain customer redemption requests at the expense of other investors, and conducted an improper “short squeeze” in bonds issued by a Canadian manufacturing company. You may also remember that the SEC’s staff took a run at settling this matter last month, and the Commissioners rejected the effort by a 3-1 vote. On Monday, the SEC settled its case against Falcone and Harbinger Capital. In doing so, the SEC required the defendants to pay more than $18 million in monetary sanctions and admit wrongdoing. As a technical matter, the consent filed in the Southern District of New York included an annex, all of the facts in which Falcone and Harbinger admitted. Falcone also agreed to be barred from the securities industry for at least five years, though he is not barred from acting as an officer or director of a public company.
This move is interesting to me. It was impossible to tell what sorts of cases White meant by “particular kinds of cases” when she announced the policy change in June. I suspected she might mean largely criminal microcap fraud that is within the SEC’s jurisdiction, but very hard to police and control. The defendants in those matters are not always well represented, and might have been soft targets for a policy shift like this one. Falcone is not in that box; he’s a billionaire who could hire any lawyers he wanted. It was a somewhat riskier move to implement this policy shift with Falcone than with a financially weaker defendant. Falcone may have calculated that the follow-on costs from private lawsuits trying to take advantage of the admissions in the filed consent are not high enough to continue litigating this matter with the SEC. In any event, it will be interesting to see how this new policy continues to develop from here.