Second Circuit Vacates Judge Rakoff’s Order Refusing to Approve Citigroup “Neither Admit Nor Deny” Settlement

Posted on June 6, 2014, by William L. Carr and Jennifer B. Dempsey in Neither Admit Nor Deny, Settlements. Comments Off

Today, the Second Circuit Court of Appeals vacated Judge Rakoff’s order refusing to approve a settlement between the SEC and Citigroup in which Citigroup neither admitted nor denied the agency’s allegations. See SEC v. Citigroup Global Mkts., Inc., Docket Nos. 11-5227-cv; 11‑5375-cv; 11-5242-cv (2d Cir. June 4, 2014). Judge Rakoff took issue with the consent decree, finding that it was not fair, reasonable, adequate, or in the public interest because the public was denied the opportunity to know the truth underlying the allegations of securities fraud. The Circuit Court disagreed, reasoning that the district court abused its discretion by requiring the SEC to “establish the ‘truth’ of the allegations against a settling party as a condition for approving the consent decrees.” Id., slip op. at 21. The court said, “Trials are primarily about the truth. Consent decrees are primarily about pragmatism.” Id.

The court clarified that the proper standard for reviewing a consent decree requires determinations of whether the decree is fair and reasonable and whether the public interest would be disserved. According to the court, district courts assessing consent decrees for fairness and reasonableness should consider (1) the basic legality of the decree; (2) whether the terms of the decree, including its enforcement mechanism, are clear; (3) whether the consent decree reflects a resolution of the actual claims in the complaint; and (4) whether the consent decree is tainted by improper collusion or corruption of some kind. The court jettisoned the “adequacy” requirement, finding it incompatible with the use of consent decrees. In addition, the court made clear that “[t]he job of determining whether the proposed S.E.C. consent decree best serves the public interest . . . rests squarely with the S.E.C., and its decision merits significant deference . . . .” Id., slip op. at 24-25.

The court remanded the case to the district court for consideration of the factual basis for the consent decree under these standards, noting that “[a]bsent a substantial basis in the record for concluding that the proposed consent decree does not meet these requirements, the district court is required to enter the order.” Id., slip op. at 19.

The court cautioned that the SEC must be “willing to assure the court that the settlement proposed is fair and reasonable” when it seeks the court’s imprimatur of consent decrees. Id., slip op. at 27. The court pointed out, however, that the SEC has the ability to employ its own remedies—like administrative proceedings—that do not require court involvement. It remains to be seen whether the SEC will make more use of administrative proceedings in an effort to avoid judicial scrutiny in settled cases. During the pendency of the Citibank ruling, the SEC did not shy away from filing significant settled cases such as the JP Morgan internal controls matter in federal court. Moreover, in light of the standard articulated by the Second Circuit, it would seem that both the SEC and settling defendants should have less concern about courts second-guessing or questioning whether proposed settlements serve the public interest.

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