Washington – Business Roundtable (BRT) yesterday filed an amicus brief supporting the authority of the Securities and Exchange Commission (SEC) to settle complaints with businesses through the use of consent decrees.
Such settlements, in which a company is not required to concede liability, help reach timely conclusions to SEC complaints while preventing costly litigation, BRT argued in the brief filed in the Second U.S. Court of Appeals in the case, United States Securities and Exchange Commission v. Citigroup Global Markets Inc.
"Companies might be unwilling or unable to settle enforcement actions if they are forced to respond to each and every one of an agency's allegations," BRT President John Engler said. "The result will be delay, costs and continued uncertainty."
In November 2011, U.S. District Court Judge Jed Rakoff of the Southern District of New York took the unusual step of rejecting a consent decree negotiated between the SEC and Citigroup. BRT's amicus brief described the rejection as a "novel, and potentially dangerous, approach" toward judicial review of settlement agreements.
In urging reversal of the district court's decision, BRT's brief argues further: "If district courts are allowed to second-guess negotiated resolutions on the ground that the underlying facts have not been definitively established, agencies will be severely hampered in their ability to bring and conclude enforcement actions; respondents will be forced litigate to judgment when the cost of settlement may be less than the value of vindication; and the already overburdened judiciary will be clogged with unnecessary litigation."
In January 2012, BRT filed an amicus brief challenging Rakoff's decision. A three-member panel of the Second Circuit stayed the judge's ruling on March 15 on largely procedural grounds. The next stage, which BRT's new brief addresses, will examine the merits of the case.