What does Luis Aguilar know that we don’t?
Aguilar lashed out at his fellow commissioners of the U.S. Securities and Exchange Commission last Thursday for the weak penalties they imposed on the former CFO of Affiliated Computer Services Inc., which overstated its income by $125 million in 2009. In a bracing dissent, Aguilar faulted them for failing to charge Kevin Kyser with fraud for manipulating the company’s income, and for not barring him from appearing before the commission. Instead, Kyser was simply charged with a books and record-keeping violation, and had to pay $208,595.
“When these accountants engage in fraudulent misconduct, the commission must be willing to charge fraud and must not hesitate to suspend the accountant from appearing or practicing before the commission,” Aguilar wrote.
Andrew Ceresney, the SEC’s director of enforcement, defended the agency’s record. “Prosecuting accounting and financial fraud is a high priority for the agency,” he said in a statement. “In fact, our financial reporting cases for 2014 so far have surpassed last year’s total number of cases by 21 percent. … We make our enforcement decisions based on the evidence, and we always push for the strongest charges and remedies possible given the circumstances of the case.”
Unfortunately, Aguilar couldn’t tell us everything he knows about Kyser’s actions, which would more fully explain why he was so upset. He is muzzled by SEC rules that forbid him to reveal any information that the agency didn’t choose to include in its public statements. And, most disturbing, he suggested that what the SEC did reveal—in this case and others—is a sanitized, watered-down version of events.
“I am concerned that commission orders may, at times, be purposely vague and/or incomplete, and written in a way so as to lead the public to conclude that no fraud had occurred. When this happens, the public is denied a full accounting and appreciation of the egregious nature of a defendant’s misconduct. … In the end, these behind-the-curtain decisions can make fraudulent behavior appear to be an honest mistake.”
This is a hugely important point. I’ve seen too many recent settlements by the SEC and the U.S. Department of Justice that have obscured or suppressed the underlying facts. In July, when the DOJ reached a $7 billion deal with Citigroup Inc. over its deceptive activity peddling mortgage-backed securities, I complained in an earlier column that the court documents were shockingly thin on facts.
As I noted then, the crucial statement of facts in the Citi case was jointly negotiated by the DOJ and Citi’s lawyers, as they typically are in these settlements. That raised the question of whether the government agreed to keep quiet about some of the most damaging evidence against Citi and its officers in exchange for $7 billion. This case wasn’t an exception. Despite the string of big government settlements in the financial crisis cases, I’m still left wondering who did what.
In Kyser’s case, what role did Kyser’s lawyer play in negotiating the information that the SEC released? Kyser is represented by Danny Ashby at K&L Gates, who didn’t respond to requests for comment.
Of course, the government can’t take every case to trial for a full airing of the facts. But when a case settles, we should at least get an honest presentation of the evidence. More often, it seems, we get carefully negotiated statements that leave us with suspicions that we’re not getting the truth.
Now that Aguilar has spoken out, these suspicions weigh heavier than ever.
Summary Judgment is American Lawyer senior writer Susan Beck’s regular opinion column for the Litigation Daily.