Rakoff ripples: NY court says SEC boilerplate no defense

By Alison Frankel
December 15, 2011

In 2006, Bear Stearns entered a $250 million settlement of Securities and Exchange Commission allegations that its traders engaged in illicit market timing for certain preferred customers. Like scores of SEC defendants concerned with liability in related civil litigation, Bear insisted on the language that’s become boilerplate in SEC settlements. So “without admitting or denying” the SEC’s findings, the bank agreed to disgorge $160 million and pay a $90 million penalty.

Bear and its successor, JPMorgan Chase, turned to Bear’s insurers to cover the disgorgement. (Penalties aren’t indemnified in Bear’s policy.) The insurance agreements said the bank was covered for damages awards and charges incurred by regulatory investigations, with one catch: The policies excluded claims “based upon or arising out of any deliberate, dishonest, fraudulent, or criminal act or omission,” if there were a final adjudication reflecting that wrongdoing.

No problem, right? The SEC settlement explicitly said that Bear didn’t admit deliberate or dishonest behavior when it agreed to the disgorgement. The insurers, represented by DLA Piper, Drinker Biddle & Reath and several other firms, balked at paying, but JPMorgan, with counsel from Proskauer Rose, sued to enforce the policies. In September 2010, New York State Supreme Court Justice Charles Ramos agreed that Bear hadn’t admitted anything. “An insured’s settlement or consent to entry of an order with the SEC, wherein it did not admit guilt, will not preclude if from disputing those findings in subsequent litigation with its insurers,” Ramos wrote in an order refusing to dismiss JPMorgan’s suit. “The [SEC settlement] does not contain an explicit finding that Bear Stearns directly obtained ill-gotten gains or profited by facilitating these trading practices.”

Ramos’s decision was issued before the SEC’s “neither admit nor deny” boilerplate became a source of controversy, thanks to U.S. District Senior Judge Jed Rakoff of Manhattan federal court. I’ve speculated on the consequences if other judges opt to abide by the rules Rakoff seems to want to impose on corporate defendants setting with federal agencies. But a ruling Tuesday by the New York state Appellate Division, First Department, suggests the boilerplate language that Ramos cited — and Rakoff has derided — may no longer offer defendants much benefit even without judges specifically rejecting it.

As my Reuters colleague Joseph Ax reported, the appeals court dismissed the JPMorgan suit against the insurers. But the decision’s implications may be broader than that. In an opinion written by Justice Richard Andrias, the state judges simply didn’t pay much heed to the SEC “neither admit nor deny” boilerplate. “Read as a whole,” the decision said, “the offer of settlement, the SEC Order … and related documents are not reasonably susceptible to any interpretation other than that Bear Stearns knowingly and intentionally facilitated illegal late trading for preferred customers, and that the relief provisions of the SEC Order required disgorgement of funds gained through that illegal activity.” Moreover, in a footnote, the opinion referred explicitly to Rakoff’s criticism of SEC boilerplate in SEC v. Vitesse Semiconductor.

JPMorgan counsel John Gross of Proskauer referred my call to a JPMorgan spokesman, who didn’t get back to me. Insurance counsel Joseph Finnerty III of DLA Piper didn’t return a call for comment.

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2 comments

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Bear Sterns, JP Morgan, continuing criminal enterprises. These folks will wake up one day surrounded by ruins and wonder what happened. No one goes to jail. No one admits criminal activity. Just keep on “making” money out of thin air. Private profits and public risk. Is Greenwich, CT fireproof? OWS makes more and more sense.

Posted by SantaFean | Report as abusive

Interestingly, Judge Ramos is now presiding over the Ambac suit against EMC, Bear Stearns and JP Morgan. I wonder how his view of those defendants will be affected by having presided over their prior lawsuit with their insurers.

Posted by igradman | Report as abusive