Sunday, February 10, 2013

"Friend of the Court" brief in SEC v Citi submitted. Case heard.

William Michael Cunningham last week submitted a revised "Friend of the Court" brief in a case currently pending before the United States Court of Appeals for the Second Circuit.

The case concerns the rejection, by a Federal Judge, of a settlement agreed to by the United States Securities & Exchange Commission (SEC) and Citigroup Global Markets Inc. (Citigroup), the latter accused of securities fraud.

As a friend to the Court, Mr. Cunningham provides an independent, objective and unbiased view in support of broad public interests. His education and experience have uniquely positioned him to provide objective, independent research and opinions concerning the issues central to the case.

The "Friend of the Court" brief notes that the negative impact of the fraud was $5.5 billion dollars, calculated, using the Fully Adjusted Return® Methodology, as the sum of the loss of all invested funds and the monetary value of societal impacts. The SEC settled the case for $285 million. The fact that the penalty is too small is evidence that the regulator/plaintiff has been captured by the financial services industry. Under regulatory capture, full and automatic deference to Agency decisions is inappropriate, since the Agency cannot make legitimate policy decisions in the public interest. 

The Brief calls for the creation of a special Financial Institution Court of Law. This Court would be responsible for both financial institution and financial institution regulator oversight. The Court would provide flexible oversight that ramps up when needed, becoming active when the number of cases against Wall Street firms exceeds some predetermined number, or when damage due to financial market fraud exceeds some dollar amount.

“Appellate courts ordinarily defer to the agency's expertise and the voluntary agreement of the parties in proposing the settlement” but these are extraordinary times. When industry participants, despite continual Agency enforcement actions, act repeatedly and with impunity in a manner that damages the industry, the country and the global economy, a Court must step in to protect the public. A decision by the (Appeals) Court in favor of the SEC and Citigroup will further weaken this support, to the detriment of market institutions and the public. My economic models continue to show that the global economy remains at risk.