Breaking Securities Laws? You Don’t Really Need To Apologize

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Just two months into her tenure as head of the Securities and Exchange Commission, Mary Jo White is making waves by questioning the agency’s long-standing policy of not requiring admissions of guilt when settling with financial wrongdoers.

For many Americans, the 2008 financial crisis is the defining tragedy of their lives, as it’s resulted in millions of foreclosures, mass unemployment, and trillions of dollars in lost wealth. Yet despite all this suffering, only one senior banker — Kareem Serageldin — has been criminally convicted of mortgage-security related fraud, and the same multinational banks that dominated the landscape before the crisis still reign supreme, except now they’re bigger and more powerful than ever.

It’s true that regulators like the Securities and Exchange Commission have pursued more than 100 civil suits against banks and executives related to the financial crisis, resulting in billions of dollars in penalties. And it should be said that the SEC isn’t the kind of cop that’ll throw you in jail, as it’s only capable of bringing civil actions against fraudsters. But when the SEC does bring civil actions against big banks like Goldman Sachs or Citigroup, it nearly always settles rather than bringing the cases to trial, with the banks agreeing to change their business practices but “neither admitting nor denying” the veracity of the charges. This practice — combined with the fact that the dollar amounts of the settlements are usually quite small in comparison to big banks’ overall profits — leaves many with the feeling that justice is not being done.

Take for example the recent suit brought by the SEC against Citigroup, in which the regulator accused the bank of misleading investors about a $1 billion mortgage-bond deal during the waning days of the real estate bubble. Citigroup agreed to pay $285 million to settle the suit, but the deal was rejected in federal court by Judge Jed Rakoff in a move that was hailed by many left-leaning critics. As blogger David Dayen wrote at the time :

Rakoff is not only rejecting this deal, but objecting to the entire premise of SEC settlements on these issues over the past several years, particularly the idea that the offending party need not admit to wrongdoing when they settle. There may not be a more galling aspect to the general amnesty given to the financial industry than this, that the big banks can just throw money at their problems, just pay off the regulators for their fraudulent activities, and never have to say “we were wrong.”

Last week, however, at a conference sponsored by the Wall Street Journal, new SEC Chair Mary Jo White announced that the regulator would be reconsidering this long-standing practice, and making more of an effort to force companies to admit fault in some cases, including those that inflict “widespread harm to investors” or involve “egregious intentional misconduct.” The announcement led to some exultant headlines in the press, which often scorns the practice of “neither admit nor deny” as an example of the toothlessness of the U.S. financial regulatory apparatus.

But before you get too excited about this announcement, it’s important to understand why the SEC arrived at the policy of “neither admit nor deny” in the first place. For starters, the SEC’s resources are severely limited: It’s budget was roughly $1.3 billion in 2012. Compare that to Citigroup’s $70 billion revenue and $7.2 billion profit, and you get an idea of how thoroughly the bank could outgun the regulator in any high-stakes trial. In short, the SEC needs to settle with financial companies: As Thomas Gorman of the law firm Dorsey and Whitney recently wrote, if Chairman White’s announcement does actually represent a shift in policy towards one that aggressively pursues admissions of guilt, that stance might actually undermine the SECs broader mission of protecting investors and promoting fair and efficient capital markets — because the SEC will have to expend so much time and resources on individual cases that it would hamper its ability to cast a wide regulatory net.

OK, the SEC can’t take every target to court — but why can’t it at least insist that the bad guys admit that they did something wrong? The reason is that such an admission would open a financial company to significant — and perhaps existence-threatening — parallel civil actions from shareholders and other entities. In other words, a large firm like Citigroup would rather go to trial than admit guilt, because once it admits guilt, they’ve given up the game entirely.

In other words, the SEC is in a double bind: If it insists on admission of guilt, the company will go to trial. But the SEC can’t afford to go to trial very often. Thus, “neither admit nor deny” will very likely live on.

So what to make of SEC chief White’s new resolution? Well, if you parse White’s words, there isn’t much reason to believe that the SEC will be behaving much differently than it has in the past — despite the headlines. White was quick to emphasize “how important the no-admit no-deny protocol also will remain for the majority of cases.” Furthermore, if the SEC does implement this policy in cases of the most egregious financial fraud, it probably won’t have much effect because those defendants (think Bernie Madoff) would be facing criminal charges as well.

In the end, if you think the SEC has been too lax in going after financial scandal, then you should lay the blame on Congress. It’s the prerogative of the legislative branch to increase the SEC’s resources and the magnitude of penalties it can extract (in many cases the SEC is constrained by the law in how much it can actually seek in damages). Increasing these would be more effective at creating a more robust regulatory framework than the SEC could do by merely shifting tactics.

If there’s any consolation, it comes from considering the standard industry practice before “no admit, no deny” came into use in the early 1970s: Firms would routinely settle charges with the SEC — and then publicly deny the allegations. To prevent this, the SEC began to forbid firms from denying the charges as a condition of settlement. So while it may be unsatisfying to critics of the financial services industry that these firms don’t have to fess up to their crimes, what would such confessions actually accomplish? Hardly anyone ever doubts the veracity of the SEC’s allegations following a settlement, and if this tactic allows the SEC to apportion its resources more wisely, then perhaps “neither admit, nor deny” is one quirk of our regulatory system that’s best left as is.