The Statute Of Limitations And Financial Penalties In SEC Enforcement Actions

The Seventh Circuit ruled on two important questions regarding SEC enforcement actions in SEC v. Koenig, Case No. 08-1373 (7th Cir. Decided Feb. 26, 2009). The first concerned the time period under which the SEC must commence suit under the statute of limitations. The second focused on calculating the amount of a civil penalty.

The case arose out of the financial debacle at Waste Management, Inc. The company was unable after 1991 to sustain what had been years of significant growth. Defendant James Koenig, the Chief Financial Officer of the company, devised several accounting strategies to improve the apparent results from 1992 through 1996.

In October 1997, Waste Management issued a press release stating that its financial statements were unreliable. In February 1998, the company restated its financial statements for the years 1992 through 1996, taking a charge of approximately $1.1 billion. Mr. Koenig, who stepped down in January 1997, had been paid bonuses totaling about $831,000 for the years 1992, 1994 and 1995. The SEC filed suit on March 26, 2002.

Following a jury trial at which Mr. Koenig argued that the accounting strategies he used were not fraudulent, the jury found him liable. The district court ordered him to pay disgorgement of about $831,000 along with pre-judgment interest of $1.2 million. The court also imposed a civil penalty of $2.1 million.

The Circuit Court affirmed except with respect to the calculation of Mr. Koenig’s bonuses, an issue which was remanded to the district court. First, Mr. Koenig argued that the statute of limitations under 28 U.S.C. § 2462 precluded the imposition of a civil penalty. This argument was premised on the fact (1) the alleged misconduct occurred before January 1997 when Mr. Koenig stepped down as CFO and (2) the SEC did not file suit until 2002, outside the five year statute of limitations.

While under some statutes of limitation, the time period commences when the wrong occurs and under others when it is discovered, the Court found it unnecessary to determine which approach applied here. The district court had concluded that the claim did not accrue until discovered. The Circuit Court noted that this is a common law view. At common law, there was a special rule for fraud, a concealed wrong. Under that rule the victim of fraud has from the date that the wrong came to light or would have done so had diligence been employed. Since the accounting maneuvers of Mr. Koenig did not come to the attention of the public until October 1997, the SEC’s complaint was timely with respect to the question of a penalty. The Court did not explain the basis for its application of the common law rule here.

Second, Mr. Koenig challenged the amount of the penalty, arguing that it should not include the pre-judgment interest. Under 15 U.S.C. § 77t(d)(2)(A) and § 78u(d)(3)(B)(i), the amount cannot exceed the greater of $100,00 or the “gross amount of pecuniary gain to [the] defendant as a result of the violation,” according to the Court. The “pecuniary gain” is the amount obtained from the fraudulent accounting, plus the economic return he made or could have made by investing that sum. This is because “[d]epriving Koenig of both the principal amount, and the economic return measured by prejudgment interest, puts him in the same position as if he had not received any ill-got gains … .”

Based on its definition of the statutory phrase “pecuniary gain,” for which the Court did not cite any authority, it concluded that the amount of the penalty can include the amount of the bonuses plus prejudgment interest. Because there is a question as to whether Mr. Koenig would have received any bonus – the position adopted by the district court — or some bonus absent his accounting conventions, the question was remanded for consideration of this point.

The Market Crisis Continues To Spawn Financial Fraud Cases

The market crisis continues to send stock prices to new lows. It is also unraveling fraudulent investment operations and schemes at a record pace. In recent weeks, the SEC has brought a stream of cases against Ponzi schemes and other fraudulent funds and operators who, like Bernard Madoff, have been exposed by the collapse of the finance markets.

Yesterday, the SEC brought another market shake-out case. SEC v. Sunwest Management, Inc., Case No. CV-06056 (D. Ore. Filed March 2, 2009). This action was brought against Sunwest Management, Inc. which, at its peak in 2007, managed over 320 retirement facilities in 34 states with assets valued at about $2 billion, its primary shareholder and former president Jon Harder, and Canyon Creek Development, Inc., a captive broker-dealer.

According to the Commission’s complaint, the defendants raised at least $300 million from more than 1,300 investors through fraudulent offerings of tenancy-in-common interests. Investors were told that their funds would be invested in a specific retirement home. That home would generate sufficient revenue to pay a 10% annual return. Southwest, investors were told, had never missed a payment.

Contrary to the representations made to investors, Defendants ran Sunwest as a single integrated enterprise, commingling all investor cash into a single fund. Returns were made to investors from a variety of sources, not just the particular retirement home designated. By misrepresenting the nature of the investment, the SEC claims, defendants concealed the fact that the profitability of each specific investment depended on the success of other properties and defendants’ ability to continue the operations of the entire enterprise.

As credit tightened in 2007 and 2008, the complaint alleges, the entire enterprise began to unravel. Yet, “despite the dire financial condition, defendants continued to raise additional money from investors. By June 2008, they operated Sunwest virtually as a Ponzi scheme: money raised in the final offerings (supposedly for new properties) was used to pay old investors their 10 percent return and otherwise fund operations at existing facilities.” By January 2009, over 100 retirement homes had been placed in foreclosure, receivership or bankruptcy. This eliminated any interest of the investors. The SEC has sought a freeze order.

Sunwest is only the latest investment scheme to crash in the wake of the current market crisis. It will not be the last. The SEC reportedly has dozens of investigations which are related to the current market crisis. The FBI has hundreds of open white collar investigations. As the market crisis continues to spiral on, it will, no doubt, tumble more fraudulent schemes, spawning more enforcement actions.