Regulators Roll Out Proposals for New Dodd-Frank Lending Rules

The top U.S. securities regulator yesterday tried to respond to complaints that the deck is stacked against defendants at in-house trials by approving the first major revisions to its administrative proceedings in two decades, Reuters reported yesterday. But the changes by the Securities and Exchange Commission may not silence critics. The 13 comment letters it received after proposing the revisions last September all sent the same message: They do not go far enough. The final version, approved unanimously by the three-member commission without debate, did make minor changes. Still, it will not likely appease those who say the trials deny constitutional protections to defendants. "While I appreciate the SEC acknowledging the serious due process concerns that have been raised because of their unfair use of in-house judges, the changes adopted today effectively put a Band-Aid on a wound that requires stitches," said Rep. Scott Garrett (R-N.J.), who sponsored legislation to push more cases into federal courts. "This is an extremely modest step in the right direction, but defendants ultimately deserve a right to remove themselves from the SEC's tribunals so they can have their case heard in federal court." The 2010 Dodd-Frank Wall Street reform law allowed the SEC to pursue cases against a wider universe of defendants before its in-house judges in what are called administrative proceedings. That raised the ire of defense lawyers, who say the SEC has an outsized advantage in the proceedings.
The Securities and Exchange Commission’s three commissioners will vote tomorrow on tweaks to rules governing administrative proceedings before SEC in-house judges, despite complaints from the white-collar defense bar that the proposed rule changes do not resolve the fundamental unfairness of trying enforcement actions before in-house SEC judges, Reuters reported yesterday. The Dodd-Frank financial reform act of 2010 gave the SEC leeway to bring even complex securities fraud cases as administrative proceedings before judges hired by the agency, rather than as federal-court enforcement actions overseen by U.S. district judges. Ever since, defense lawyers have insisted that SEC administrative proceedings curtail their clients’ due process rights because the federal rules of civil procedure don’t apply. Those arguments mostly failed to persuade judges to enjoin administrative proceedings, which is why defense lawyers developed alternative constitutional challenges to the SEC in-house trials. The inherent constitutionality of the proceedings is now at issue before the District of Columbia U.S. Circuit Court of Appeals.
The Securities and Exchange Commission has successfully fended off recent challenges to its use of administrative proceedings to hear cases about potential violations, but the courts did not resolve the underlying constitutional issues regarding the use of administrative courts to decide cases, the New York Times reported today. That issue is one part of a larger debate over the SEC’s increased use of administrative proceedings to impose penalties, which some have claimed gives the agency an improper “home court” advantage. The commission will have to continue to defend how it channels cases into administrative proceedings from congressional efforts to push enforcement actions into federal court. A broad financial overhaul proposal offered by Representative Jeb Hensarling, the Texas Republican who is chairman of the House Financial Services Committee, includes provisions that would effectively gut the use of in-house courts for cases. The roots of the dispute can be traced to when Congress, in the Dodd-Frank Act, gave the agency almost unfettered discretion to choose to seek penalties in court or in an administrative proceeding. The change raised the ire of defense lawyers, who saw cases routed to the administrative process rather than being filed in a court, where the lawyers would have greater rights to obtain evidence and have a jury decide the case. In response, defendants filed a number of lawsuits, claiming that the administrative proceedings are unconstitutional because of the way in which the in-house judges are appointed, asking that the cases be halted until the constitutional issue can be decided.
The Securities and Exchange Commission announced that Merrill Lynch has agreed to pay $415 million and admit wrongdoing to settle charges that it misused customer cash to generate profits for the firm and failed to safeguard customer securities from the claims of its creditors, according to a SEC press release yesterday. An SEC investigation found that Merrill Lynch violated the SEC’s Customer Protection Rule by misusing customer cash that rightfully should have been deposited in a reserve account. Merrill Lynch engaged in complex options trades that lacked economic substance and artificially reduced the required deposit of customer cash in the reserve account. The maneuver freed up billions of dollars per week from 2009 to 2012 that Merrill Lynch used to finance its own trading activities. According to the SEC’s order instituting a settled administrative proceeding, Merrill Lynch further violated the Customer Protection Rule by failing to adhere to requirements that fully-paid for customer securities be held in lien-free accounts and shielded from claims by third parties should a firm collapse. From 2009 to 2015, Merrill Lynch held up to $58 billion per day of customer securities in a clearing account that was subject to a general lien by its clearing bank and held additional customer securities in accounts worldwide that similarly were subject to liens.
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