A lot of legal issues look like substantive things but are actually things about what institutions can and want to do. Obviously more people want to think about questions like “should the U.S. have universal health insurance?” than about questions like “does the Anti-Injunction Act bar lower federal courts from reviewing the individual mandate until taxes are collected in 2014?,” but judges tend to get into the latter question. That’s why they’re judges. That difference can make judicial decisions sort of hard to interpret.
Today everyone’s favorite federal judge, Jed Rakoff, surprised few but pleased many by beating the ever-loving crap out of the SEC’s settlement with Citigroup, in which Citi had agreed to pay the SEC $285 million in exchange for the SEC not asking too many questions about its synthetic CDO deals that were maybe not so hot. Here’s the gist of it:
Applying these standards to the case in hand, the Court concludes, regretfully, that the proposed Consent Judgment is neither fair, nor reasonable, nor adequate, nor in the public interest. Most fundamentally, this is because it does not provide the Court with a sufficient evidentiary basis to know whether the requested relief is justified under any of these standards. Purely private parties can settle a case without ever agreeing on the facts, for all that is required is that a plaintiff dismiss his complaint. But when a public agency asks a court to become its partner in enforcement by imposing wide-ranging injunctive remedies on a defendant, enforced by the formidable judicial power of contempt, the court, and the public, need some knowledge of what the underlying facts are: for otherwise, the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance.
Here, the S.E.C.’s long-standing policy – hallowed by history, but not by reason – of allowing defendants to enter into Consent Judgments without admitting or denying the underlying allegations, deprives the Court of even the most minimal assurance that the substantial injunctive relieve it is being asked to impose has any basis in fact.
Right on! But also maybe just a little disingenuous. Judge Rakoff was not being asked for “substantial injunctive relief,” not really. It looks like that on the surface, in the sense that (1) the SEC and Citi worked out a deal where Citi gives the SEC money, promises not to violate the securities laws again, and agrees to do some remedial stuff like telling its salespeople to stop peddling synthetic CDOs structured by the protection buyer without telling anyone because somehow that is still a problem; and in the sense that (2) the SEC was asking Judge Rakoff to enshrine that agreement in an injunction. And then, if Citi didn’t keep its agreement – by not doing the remedial things, say, or by violating the securities laws again – the SEC could go back to court and say “hey, Citi violated the injunction” and Judge Rakoff could hold Citi in contempt and fuck. it. up. Read more »
Federal Judge Wants To Know Why SEC Is Only Charging Citi 1/5th As Much As It Charged Goldman For Ripping Off CDO InvestorsBy Matt Levine
If the SEC really wanted to reduce the chances of embarrassing itself, besides better Internet monitoring software it really ought to look into filing securities lawsuits outside of New York. Every bank is incorporated in Delaware and does all of its activities everywhere – surely they could find a CDO investor in California. But the SEC keeps suing in New York, they keep drawing Judge Rakoff in the suspiciously random assignment system, and he always goes and does this:
A federal judge has raised questions about why he should approve the government’s $285 million civil settlement with Citigroup, suggesting that he is skeptical of the pact. … He posed nine questions to the parties, including how a fraud of this nature and magnitude could be the result simply of negligence. The judge also asked why the court should approve a settlement in a case in which the S.E.C. alleged a serious fraud but the defendant neither admits nor denies wrongdoing.
They’re good questions, including “Why … is the penalty in this case less than one-fifth* of the $535 million penalty assessed in SEC v. Goldman Sachs … ?” And you do get the sense that most other judges wouldn’t have bothered with them and would skip straight to “wow, that’s a lot of money, willing buyer willing seller, I’ll approve the settlement.”
Read more »
“Citi rented out a yacht in the New York harbor the other night for interns who got offers. It was a four hour open bar with a DJ and let’s just say it got interesting at the end. There was limbo.” Read more »
Uncle Vikula, who just started receiving a salary in January after choosing to make $1 a year until Citi turned a profit, may now be eligible for a very exciting three-part bonus. Read more »
Supposedly the three Citi officials were “angered” by the customer contesting his credit card bill. Read more »