This issue of whether or not the SEC must consider the public interest in granting these cozy settlements gets to the heart of the Occupy Movement’s central complaint, that there are two different sets of rules for two different Americas. The SEC in this case incredibly argued – out loud, on paper – that it could make regulatory decisions without considering the public interest. In particular, it argued that it didn’t need to consider the public interest when granting “injunctive relief,” i.e. an injunction barring future behaviors, as opposed to the stiffer and more immediate punishment of fines or criminal charges.
The SEC argued to Judge Rakoff that “the public interest … is not part of [the] applicable standard of judicial review.”
Translating: “When we decide to let a thieving megabank off with just a promise to never do it again, we don’t have to consider whether or not this is in the public interest.”
If you stand back and really think about what this argument means, it’ll make your head spin. What the SEC is saying here is that according to the incestuous values of the small community of high-priced revolving-door lawyers who both head the SEC enforcement office and run the defense teams of banks like Citi, a $95 million fine with no admission of wrongdoing for a $700 million fraud is, in fact, “fair” and “reasonable.”
The settlement only becomes problematic, the SEC implies, if you ask them to square their judgment with “the public interest.”
The SEC, in other words, is admitting that they have a standard for “reasonableness” and “fairness” that somehow does not coincide with the public interest. This surreal formulation translates as, “We’re doing the right thing – we’re just not doing it for the public.”
Rakoff’s response to this lunacy:
A large part of what the S.E.C. requests, in this and most other such consent judgments, is injunctive relief… The Supreme Court has repeatedly made clear, however, that a court cannot grant the extraordinary remedy of injunctive relief without considering the public interest.
The Rakoff ruling shines a light on the way these crappy settlements have evolved into a kind of cheap payoff system, in which crimes may be committed over and over again, and the SEC’s only role is to take a bribe each time the offenders slip up and get caught.
If you never have to worry about serious punishments, or court findings of criminal guilt (which would leave you exposed to crippling lawsuits), then there’s simply no incentive to stop committing fraud. These SEC settlements simply become part of the cost of doing business, as Rakoff notes:
As for common experience, a consent judgment that does not involve any admissions and that results in only very modest penalties is just as frequently viewed, particularly in the business community, as a cost of doing business imposed by having to maintain a working relationship with a regulatory agency, rather than as any indication of where the real truth lies. This, indeed, is Citigroup’s position in this very case.
That line, “a cost of doing business imposed by having to maintain a working relationship with a regulatory agency,” is one of the more brutally damning things you’ll ever see a judge write. Rakoff is saying that these fines are payoffs to keep the SEC off the banks’ backs. They’re like the pad that numbers-runners or drug dealers pay to urban precinct-houses every month to keep cops from making real arrests. That’s what he means when he refers to “maintaning a working relationship.” It’s heavy stuff.
On the other hand, both the SEC and Citigroup insist that this secretive payoff system is defensible and must continue. They clearly believe, sincerely, that none of this stuff is really the public’s business.
This is an extraordinarily condescending attitude and shows exactly how little they think of the public at large. One wonders if decisions like Rakoff’s will at least help to wake the government up.