Appeals Court Puts Citi, SEC Trial Back On IceSteven Thel in Forbes, December 28, 2011
Almost a month after Southern District Judge Jed Rakoff shot down a proposed $285 million settlement between Citigroup and the SEC, telling both sides to prepare for a July trial, the U.S. Court of Appeals in Manhattan granted the regulator a stay that will temporarily halt the proceedings.
The Court of Appeals delayed further action until at least Jan. 17 in a ruling Tuesday, the New York Times reports, while it decides whether to “grant an expedited hearing of the appeal and whether the two sides should have to simultaneously prepare for a trial.”
In mid-October, Citi agreed to pay $285 million to settle charges it misled investors in a collateralized debt obligation tied to the mortgage-related securities that defaulted within months of being issued. As is typical in such cases, the bank did not admit nor deny any wrongdoing, a custom that does not sit right with Judge Rakoff.
The judge blocked the settlement in late November, arguing that the lack of facts associated with the settlement does not mesh with the “overriding public interest in knowing the truth.” Rakoff said the two sides were free to come up with a revised agreement, but warned they should prepare for a trial this summer.
Steven Thel , a professor at Fordham Law School and a former SEC attorney, said at the time that it was hard to view Rakoff’s decision through the lens of just the Citigroup case.
“This appears to be the straw that broke the camel’s bank,” Thel said, citing a previous SEC settlement with Bank of America that Rakoff initially blocked due to his concerns “that the money was coming from the company, not the wrongdoers.”
Rakoff’s perspective in the Citi case makes it hard to see how any judge could ever bless a settlement that does not include some admission of wrongdoing, but that represents a conundrum for the SEC, which has limited resources to deal with lengthy litigation in order to wring settlements out of powerful financial institutions.
Michael Barr, a professor at Michigan Law, argued Rakoff “is trying to make a broader point about the lack of transparency in SEC settlements” with big firms like Citi, Bank of America, JPMorgan Chase, Goldman Sachs Group (which coughed up a record $550 million in the Abacus settlement) and others.
“It holds the banks’ and SEC’s feet to the fire, in terms of forcing greater disclosure to the extent of past wrongdoing,” Barr said. “But going too far could hinder the SEC’s ability to settle.”
Of course, one of the reason parties like Citigroup are reluctant to admit any wrongdoing is because any such admissions can subsequently be used by private plaintiffs. To big financial institutions, there is “a calculus” to determining the price at which the benefit of protecting against private litigation is paying up for a settlement with regulators, Barr said.
Tuesday’s ruling in the Court of Appeals will at least give the SEC and Citi some breathing room, and a month ago Barr said he thought the two sides would “be eager to reach a new settlement without the need for a trial.
Citigroup shares were down 0.9% Wednesday morning.