Second Circuit Says Wall Street Can Play “Truth or Settle”

by Robins Kaplan LLP

On June 4, 2014, a three-judge Second Circuit panel reversed and remanded Judge Rakoff’s 2011 order that rejected an S.E.C. settlement with Citigroup. The proposed settlement resolved the S.E.C.’s securities fraud case against Citigroup for misrepresenting its role and financial interest in a billion dollar investment fund. United States Securities and Exchange Commission v. Citigroup Global Markets, Inc., Docket Nos. 11-5227-cv(L); 11-5375-cv(con), 11-5242-cv(xap), 2d. Cir. (June 4, 2012).

According to the S.E.C. complaint, Citigroup “exercised significant influence” in selecting the fund’s assets, which were largely collateralized by subprime mortgage-backed securities. At the same time, the S.E.C. alleged, Citigroup took a short position in the mortgage-backed assets and earned $160 million when the assets performed poorly. The fund investors, on the other hand, lost millions of dollars.

Soon after filing the complaint, the S.E.C. entered a consent decree with Citigroup. Citigroup agreed to disgorge the $160 million net profits from the alleged conduct and pay $30 million in prejudgment interest and $95 million in civil penalties. The decree also imposed injunctive relief and remedial action. Citigroup made no admission of guilt or liability.

Judge Rakoff submitted a series of question to the S.E.C. and Citigroup to determine how fair and effective the consent decree would be. After a hearing on November 9, 2011, the court concluded that the proposed consent decree was “neither fair, nor reasonable, nor adequate, nor in the public interest” because sufficient basis did not exist to determine whether it was justified under those standards. S.E.C. v. Citigroup Global Markets Inc., 827 F.Supp.2d 328, 332 (S.D.N.Y. 2011). The judge largely criticized the lack of underlying facts on which to base an approval decision, as “the public is deprived of ever knowing the truth in a matter of obvious public importance.” Id. The judge refused to approve the consent judgment and set the case for trial. The Second Circuit granted a stay of the proceedings and determined that it could exercise jurisdiction over the interlocutory appeal.

The Second Circuit found that Judge Rakoff abused his discretion in applying an incorrect legal standard. In giving deference to the S.E.C. or any other enforcement agency in reaching a consent decree, the proper standard for review is “whether the proposed consent decree is fair and reasonable, with the additional requirement that the ‘public interest would not be disserved’ when it includes injunctive relief.” Omitting the term “adequacy” from the standard of review, the Court concluded “the district court is required to enter the order” unless a “substantial basis in the record” exists to conclude that the proposed consent decree does not meet the requirements.

According to the Court, Judge Rakoff abused his discretion when requiring the S.E.C. to establish the “truth” of the allegations against Citigroup as a condition for approving the consent decree. Trials are for “truth.” Consent decrees concern “pragmatism.”

The Second Circuit’s decision is a victory for Wall Street, which has been plagued in recent years by numerous enforcement and regulatory actions. Still, some argue that Judge Rakoff’s decision spurred needed public debate on appropriate penalties for wrongdoing in the financial industry and influenced government enforcement.


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.

© Robins Kaplan LLP | Attorney Advertising

Written by:

Robins Kaplan LLP

Robins Kaplan LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.