SEC’s Shift in No-Admit-or-Deny Policy Would Create Dilemma for Defendants if Applied in Close Cases

by Lane Powell PC - Securities / D&O Discourse
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Last Tuesday, new SEC Chairman Mary Jo White said at The Wall Street Journal’s annual CFO Network Event that the SEC “in certain cases” will seek admissions of liability as part of settlements. The statement made headlines, and for good reason: for decades, the SEC has allowed settling defendants to neither admit nor deny wrongdoing. The policy shift, moreover, comes during the appeal to the Second Circuit of District Judge Jed Rakoff’s rejection of the SEC-Citigroup settlement, where he rejected a no-admit-or-deny settlement based in part on his determination that any consent judgment that is not supported by “proven or acknowledged facts” would not serve the public interest. (Last year, the SEC stopped allowing civil defendants to neither admit nor deny fraud, if they had already pleaded guilty in a parallel criminal case.)

Chairman White’s remarks last Tuesday indicated that a new policy requiring admissions of liability will be applied in cases of “widespread harm to investors” and “egregious intentional misconduct.” An internal SEC email from co-directors of the SEC Enforcement Division to the Enforcement staff, obtained by Alison Frankel of Reuters, and author of the blog On the Case, elaborates on the scope of the policy’s application:

“While the no admit/deny language is a powerful tool, there may be situations where we determine that a different approach is appropriate,” Ceresney and Canellos said in the email, which was provided to me by an SEC representative. “In particular, there may be certain cases where heightened accountability or acceptance of responsibility through the defendant’s admission of misconduct may be appropriate, even if it does not allow us to achieve a prompt resolution. We have been in discussions with Chair White and each of the other commissioners about the types of cases where requiring admissions could be in the public interest. These may include misconduct that harmed large numbers of investors or placed investors or the market at risk of potentially serious harm; where admissions might safeguard against risks posed by the defendant to the investing public, particularly when the defendant engaged in egregious intentional misconduct; or when the defendant engaged in unlawful obstruction of the commission’s investigative processes. In such cases, should we determine that admissions or other acknowledgement of misconduct are critical, we would require such admissions or acknowledgement, or, if the defendants refuse, litigate the case.”

What will this mean in actual SEC enforcement matters and related shareholder cases? Comments from plaintiffs’ lawyers and defense lawyers in Frankel’s blog post provide a useful start to the discussion. Not surprisingly, plaintiffs’ lawyers Max Berger, Gerald Silk and Steve Toll feel the policy will help them by providing them with ammunition to use to bolster their private securities cases. My former partner Boris Feldman of Wilson Sonsini said that the “proof of the sausage is in the making,” and feels the policy won’t change SEC enforcement matters much because the SEC will only insist on an admission when “the defendant is hosed anyway.” Thomas Gohrman of Dorsey & Whitney is worried that, “unless applied on a very sparing basis,” the policy “may well significantly undercut the entire enforcement program” because defendants will refuse to settle and the SEC will expend its resources litigating these cases.

My view lies somewhere in between these. The SEC doesn’t currently have the enforcement resources to litigate a significant additional number of additional cases, so in the near term it really can only apply the policy to particularly gnarly cases, where there is egregious or notorious misconduct, and where they are very confident they would win at trial. This approach won’t impact defendants significantly, because in cases that fall into these categories, the defendants already have significant problems stemming from the underlying facts, and there would be little collateral damage from the admission the SEC seeks.

But, to be sure, the SEC is bound to apply the policy to some close cases as well, because of a misapprehension of the case’s strength, or an overly zealous interpretation of White’s edict by the SEC staff. (There may also be a temptation by the SEC to apply this policy too broadly to high-profile cases of questionable merit, although I believe that tendency will be limited by a concern over suffering too many high-profile defeats.) The defendants will refuse to agree to settlements requiring admissions in most close cases, because of collateral consequences in otherwise defensible cases, thus yielding an increase in the number of cases the SEC litigates. How many more cases will be litigated will depend in large part on the rigor of the SEC’s screening process and on whether the SEC staff facilitates frank and meaningful discussions with defense counsel about the facts of each case.

What we know for sure is that the amount of litigation will increase in proportion to the SEC’s implementation of this new policy. Unless the new policy is interpreted very narrowly, the SEC will very quickly have a decision to make: it will either need to find new resources to finance the additional litigation; divert resources into litigation from investigation and enforcement, resulting in fewer actions being filed in the first place; or pull back on the implementation of the new policy.

I predict that after some initial overreaching, the SEC will re-calibrate its no-admission policy to limit its application to only the gnarliest cases with the worst facts. Otherwise, the government will have to fundamentally rethink the SEC’s funding and/or its enforcement role, in order to accommodate substantially more active litigation. This is possible, of course, but it seems unlikely.

On the other hand, the SEC is in control of the process only up to the point of judicial review of a proposed settlement. The uncertainty surrounding judicial review of no-admit-or-deny settlements is a wild card – increased judicial insistence on admissions likely would prompt the SEC to apply its policy to more cases than it otherwise would. Thus, the Second Circuit’s response to Judge Rakoff in the SEC-Citigroup case remains an important development to watch.

As I previously wrote, increased insistence on admissions, whether by the SEC or courts, would have significant consequences on private litigation and D&O insurance coverage. Obviously, making these admissions would increase the risk of liability in related private litigation, while at the same time creating insurance coverage problems – not to mention the impact they would have on a company’s reputation and directors’ and officers’ careers.

Deciding to litigate with the SEC will create difficult issues as well. Increased litigation will strain D&O insurance policies, not just because it creates another piece of litigation, but because it is inherently expensive litigation, which is likely to go to trial and will frequently require separate representation for each defendant. That will leave less insurance to settle the private cases, which in turn will mean that more private shareholder cases will go to trial as well.

These forces, along with the problem of increasing defense costs (about which I’ve posted here and here), will create a financial problem for many companies and their directors and officers. And, of course, they could create a serious liability problem as well, since the odds are that a decent percentage of the cases that go to trial under these circumstances will result in determinations of liability. Depending upon how these factors play out, it will become even more critical for defense counsel to adopt a more efficient, effective, and trial-focused approach to securities litigation.

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Lane Powell PC - Securities / D&O Discourse
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