SEX AND THE CITY, GOLDMAN AND SEC ENFORCEMENT

Carrie Bradshaw, the central character of HBO’s Sex And The City, was a journalist who wrote about relationships. The show typically began with Ms. Bradshaw pondering some aspect of her current or past relationships and then posing a question which became the topic for the episode. Borrowing from her format – and with all appropriate apologies to Ms. Bradshaw – one might ask: Where is SEC Enforcement going?

SEC enforcement is, in many ways, the talk of the town. SEC v. Goldman Sachs, discussed here, fuels that conversation as the most significant market crisis case brought to date by the Commission. The action, rooted in the CDO and derivatives markets, as well as the inherent conflicts of banks and other in those markets, focuses on much of what was at the center of the market crisis. The case is so high profile that every aspect of it is subject to intense speculation. Even routine matters such as the extension of time taken by Goldman to respond to the complaint are scrutinized by the 24/7 news cycle.

While Goldman is significant, it belies the more important question: Is Goldman an isolated case or a harbinger of things to come? The SEC has been reorganizing for months. It has reportedly been investigating matters keyed to the market crisis for a considerable period of time. Scattered reports periodically suggesting that there are investigations of other deals similar to the one on which Goldman is centered. Some reports suggest that the SEC is looking at other Goldman deals. Others claim there are criminal investigations. Goldman, however, is the only case of its ilk.

To be sure, investigations into new areas are difficult, time consuming and often move slowly. This can be particularly true in areas where there is little or no regulation. In those instances, there typically are not uniform record-keeping requirements which can hinder investigators. Nevertheless, the Commission has traditionally been at its best when moving into new areas such as the questionable payments inquiries in the 1970s and the insider trading and market abuse cases of the 1980s.

If the much talked about reorganization of SEC Enforcement is going to establish its worth, the current market crisis investigations may provide the ticket. Pushing into new areas, and particularly those at the core of the worst financial crisis since the 1930s and bringing successful actions, would be in the best traditions of SEC enforcement. This would be particularly true if the Commission is taking the initiative and not just following the lead of DOJ, as it now does in many instances.

In the coming days and weeks, the answer to this question should emerge. In the mean time however, SEC enforcement will, in probability continue to focus on investment fund fraud cases as it did last Friday in bringing SEC v. Seisma Oil research, LLC, Civil Action No. 5:10-CV-95 (N.D. Tex. Filed June 16, 2010). In that case, the defendants are alleged to have exported fraud from the U.S. Specifically, Florida based Seisma Oil, and two Aruba based affiliates, Seisma Energy Research, AVV and Permian Asset Management, AVV are alleged to have raised about $25 million from 400 non-U.S. investors by offering units in six joint ventures for which Seisma was the manager. Interests were never acquired in two of the ventures. Overall, about $9.5 million was spent acquiring interests in two ventures. The Commission also alleged that Seisma misrepresented material facts about the properties.

To resolve the action, the defendant have offered to consent to a permanent injunction prohibiting future violations of the antifraud provisions of the federal securities laws as well as other relief. This action was brought with the assistance of the FSA, the City of London Police, the Federal Financial Supervisory Authority of Germany, the Ontario Securities Commission, the Nova Scotia Securities Commission and the Florida Office of Financial Regulation. See also Litig. Rel. 21562 (June 18, 2010).

To be sure, the cross border cooperation to investigate and bring Seisma Oil is emblematic of good enforcement. Perhaps bringing a seemingly endless stream of Ponzi scheme and investment fund fraud cases as in recent weeks is also good therapy after Madoff. It is not, however, the same as bringing more Goldman cases.