FOR SEC ENFORCEMENT, WHAT IS THE ENCORE?
The commentary, speculation and second guessing about the SEC’s settlement in Goldman may be drawing to a close, or at least diminishing. There is no doubt that Goldman is the most significant market crisis case to come from the numerous investigations the Commission has been conducting. Indeed, simply bringing the case was a significant step in view of the bank’s stature on Wall Street and the fact that the claims took the SEC into uncharted and very difficult waters. At the same time, it is beyond dispute that one big case does not create an enforcement program. So what does the SEC Enforcement Division do for an encore?
One might look for clues in the testimony of SEC Chairman Mary Schapiro before the House Financial Services Committee on Tuesday. The remarks were titled “Evaluating Present Reforms and Future Challenges,” available here. The Chairman’s testimony recounts recent efforts of the Enforcement Division, with the promise of a look at future challenges.
The Enforcement program “is a key element to fair and effective markets,” the Chairman told the Committee. She then rehashed the now familiar reforms such as the delegation of authority to issue a formal order of investigation, as well as the initiatives to encourage cooperation. The new Financial Fraud Enforcement Task Force and the structural changes Enforcement Director Khuzami has implemented, creating new specialty units and hiring new personnel were reviewed. All of these reforms were, as usual, tied to themes of speed and efficiency.
The results of these and other efforts, the Chairman noted, are reflected in part by the statistics. In testimony reminiscent of remarks by Mr. Khuzami in a recent speech, discussed here, the Chairman noted that in 2009 the Commission secured orders for disgorgement and civil penalties in amounts that exceeded those for fiscal year 2009 by, respectively, 46% and 101%. The SEC also sought more than twice as many temporary restraining orders while issuing more than twice as many formal orders of investigation.
Cases brought by the Division bolster the statistics, according to the Chairman. Key examples include the action against American Home Mortgage, the cases naming the officers of Countrywide Financial Corp and New Century as defendants, and the actions against Brookstreet Securities and Morgan Keegan. Interestingly, only after citing these cases did the Chairman mention the high profile settlement in Goldman, discussed here. Ms. Schapiro went on to tell the Committee about other significant cases such as ICP Asset Management, the action against the former chairman of Taylor, Bean and the case against State Street Bank.
Overall the Chairman’s remarks recount where the program has been recently. But where is it going? What is happening with all the market crisis investigations Commissioner Walter and others previously mentioned?
While the SEC press release and litigation release for Goldman each contain the identical statement that the settlement does not apply to “any other past, current or future SEC investigations against the firm,” suggesting there may be other investigations, it seems clear the inquiry is over. Goldman’s 8-K states that it “understands that the SEC staff also has completed a review of a number of other Goldman mortgage-related CDO transactions and does not anticipate recommending any claims against Goldman or any of its employees.” Undoubtedly that language was reviewed in the settlement discussions.
So the Goldman investigation is over. Ms. Schapiro’s testimony, despite its title referencing “Future Challenges,” gives no clue about the future direction of any pending enforcement investigations. The question persists: Is Goldman the beginning of a bold new enforcement program that is about to unravel the roots of the market crisis or the end of the significant cases emanating from all the market crisis investigations? What is the encore?