Last week, the SEC brought its latest case in the seemingly never-ending stock option backdating scandal.  In SEC v. Shanahan, Case No. 4:07-cv-1262 (E.D. Mo. July 12, 2007), the agency charged the founder and former Chairman and CEO of Engineering Support, Michael F. Shanahan, Sr., and his son, a former board member at the company, with violations of the antifraud, proxy, and reporting provisions in connection with an option backdating scheme.  This is the most recent case to trickle out of the SEC of the reported 140 companies under investigation.  Two points make this case somewhat noteworthy.  First, the options involved immediately vested, according to the SEC complaint.  Thus, if the options were improperly backdated as the SEC claims the defendants immediately profited from the scheme.  Typically, option grants do not vest at least in part until some point in the future.  Under those circumstances, it is not always clear that backdating will result in a profit. Likewise, the huge numbers about how much people profited are somewhat questionable when the options do not vest immediately.  

Second, and perhaps of more importance, are the kind of claims brought here.  With dozens of companies still under investigation, the continuing question is what standards the agency will use in determining whether to bring enforcement actions.  The initial cases all involved aggravated fact patters with falsified documents, cover-ups, false claimants and similar activities.  While Shanahan involves claims of fraud based on what, if established, is intentional conduct, it lacks the kind of egregious conduct seen in many earlier cases.  To be sure, Shanahan contains allegations of false backdated options, large profits and false filings.  The claims however, are based on violating a stock option plan that directed options be priced at the market, allegations that various filings represented that the options were properly priced according to the plan and the failure to disclosure the fact that the options had been backdated.  If established by the SEC, this conduct of course violates the securities laws.  At the same time, it is clear that the case is based on allegations which materially differ from many of the earlier cases.  This may represent a significant evolving step in the scandal, signaling that the SEC is expanding it loop of liability.  

That loop may receive further definition later this week.  On Thursday, the Court in U.S. v. Reyes, the criminal trial involving the former Brocade CEO is due to rule on the defense’s Criminal Rule 29 motions for acquittal made at the conclusion of the government’s case-in-chief.  Whatever the ruling, it is significant that the Court delayed the decision on the motions for a significant period of time.  All too often courts, deny these motions from the bench following the oral argument.  In Reyes however, the Court significantly delayed ruling on the motions to consider the papers.  This action, at a minimum, suggests that there is a very significant question as to whether the government has established its case.  If granted, the ruling would be a huge blow to the government’s prosecution of options backdating cases.  Indeed, such a ruling could redefine the standards used by the government in evaluating cases, particularly in view of the repeated allegations of intentional conduct made by both government prosecutors and SEC officials when the cases involving Brocade were brought.  Even if the motions are denied in Reyes (as is typical), the long delay in ruling on them raises significant questions about the kinds of cases the government is selecting for prosecution.  As the scandal continues to evolve, the question of standards of prosecution and case selection will continue to be key not only for the dozens of companies and individuals still under investigation, but also others because of what it says about SEC and DOJ enforcement of the securities law. 

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Following the Supreme Court’s decision in Tellabs, Inc.  v.  Makor Issues & Rights, Ltd., No. 06-484, 2007 WL 1773208 (June 21, 2007) two weeks ago, many commentators have speculated as to whether the decision is pro-business. While many have come to that conclusion, the reality is not that simple.  Prior to Tellabs, the Circuit Courts were split on at least two key issues regarding the requirement of Section 21D(2)(b) of the Private Securities Litigation Reform Act  of 1995 that plaintiffs plead a “strong inference” of the required state of mind.  15 U.S.C.§ 78u-4(b)(2).  Once issue which might be labeled the “what evidence?” question concerned the use of the Second Circuit’s “motive and opportunity” test as evidence establishing a “strong inference” of scienter.  A second issue focused on how inferences should be drawn from the facts alleged in the complaint on a motion to dismiss – the “construing the inferences” issue.  While the Supreme Court only agreed to resolve the second issue, in fact it probably also resolved the first as we discussed in the post of June 21, 2007 (available at https://www.secactions.com/?p=202).  Whether the Court’s resolution favors one side or the other has to be assessed on a circuit-by-circuit basis and probably ultimately depends on the District Courts, given the large amount of discretion the decision grants the District Courts.  Indeed, one recent District Court case concluded that Tellabs did not make much difference.  Elam v. Neidorff, Case No. 4:06CV1142 (CDP) slip op. (E.D. Mo. June 29, 2007) (“I do not believe that the Tellabs decision is much different from the Eighth Circuit law. … The vast majority of the Eighth Circuit decisions might just as well have been decided un the ‘at least as compelling’ standard.”). 

Perhaps a more interesting question is the position of the SEC, which filed an amicus brief in Tellabs. Many commentators concluded that the SEC’s brief was “pro-business,” a position which seems to have presaged the comments on the Court’s decision.  Many of those commentators criticized the agency, claiming it had abandoned its shareholder protection mandate.  

Again, however, the question is not so simple.  A review of the SEC’s brief suggests that the agency did in fact alter its position on pleading a “strong inference” of scienter.  Prior to Tellabs, the SEC had filed amicus briefs in a number of Circuits Court cases arguing that the pre-Reform Act Second Circuit “motive and opportunity” test should be used to assess a “strong inference” of scienter.  See, e.g., Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999).  In its amicus brief in Tellabs however, the SEC argued that in enacting the Section 21D(2)(b) “strong inference” standard, Congress “built” on the Second Circuit standard, suggesting that a higher standard is now required.  This argument, which seems focused on the first question of “what evidence?,” rather than the second regarding how to construe inferences,  suggests that the SEC changed its position, adopting one more favorable to defendants.  The agency appears to have tried to evade this point by dropping a footnote in its brief, arguing that the motive and opportunity test had not been raised in Tellabs by the parties. 

The real question here, however, is not whether the SEC changed positions, but rather whether it should.  Stated differently, the question is:  Does the SEC always have to adopt a position in favor of the shareholder plaintiffs?  No doubt the SEC has repeatedly argued that private damage actions are a necessary supplement to its enforcement program.  No doubt the SEC should protect the interests of shareholders.  But that does not mean that the agency must always side with plaintiffs.  In litigation, plaintiff shareholders can be expected to take positions which will enable them to win.  From the point of view of a regulator charged with administering the securities laws however, arguments advanced by plaintiffs seeking a money settlement or judgment may not always represent the best interpretation of the statutes.  If not, there is no reason that the SEC should side with the shareholders.  Rather, the SEC should make the legal argument which it considers consistent with its overall statutory mandate and the intent of Congress.  In this context, whether the SEC’s Tellabs brief favored plaintiffs or defendants is not relevant.  The real question should be whether that brief offered the Supreme Court a proper interpretation of the statute – something the Court should be entitled to expect from a regulator such as the SEC.  The answer seems to be ‘”no.”  In Tellabs, the Supreme Court ignored the views of the SEC.  This may say something about how the SEC is carrying out its statutory mandate.  At the same time, it may also say something about the validity of the comments that both the SEC and the Court took a pro-business approach.

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