The Securities and Exchange Commission is expected on Monday to announce a settlement in its long-running case against Ralph Cioffi and Matthew Tannin. Cioffi and Tannin, who were portfolio managers for Bear Stearns Asset Management Inc., were accused in 2008 of misrepresenting to investors the financial status of two hedge funds before they collapsed, leaving investors with losses totaling $1.6 billion. (The two men were acquitted by a federal jury of related criminal charges in 2009, but the SEC still proceeded with its case.)
Cioffi is represented by Edward Little and Marc Weinstein of Hughes Hubbard & Reed and Tannin is represented by Susan Brune and Nina Beattie of Brune & Richard. Both defense teams declined to comment.
In looking over the court filings, one thing that caught our attention was an argument raised by the defendants in their joint motion for partial summary judgment, which was pending before Senior Judge Frederic Block of the Eastern District of New York. The two men argued that some of the SEC’s fraud claims were barred by the Supreme Court’s ruling last year in Janus Capital Group, Inc. v. First Derivative Traders. But it’s unclear if Janus, which was issued in the context of a private shareholder suit, applies with equal force to an SEC enforcement action.
In Janus a 5-4 court ruled that investment adviser Janus Capital Management couldn’t be held liable in a shareholder suit for false statements in the prospectus of an affiliated mutual fund. Writing for the majority, Justice Clarence Thomas concluded that JCM didn’t “make” the statements at issue, even though it played a key role writing the document. But Thomas stressed several times in his ruling that this case was brought by shareholders in a private action, and such suits can’t be brought against aiders and abettors.
In their brief, the defendants maintained that under Janus they didn’t “make” the allegedly misleading statements in materials prepared for investors, even if they may have drafted, reviewed, or helped to prepare the documents. Instead, it was Bear Stearns Asset Management that published and distributed the materials, and had ultimate control over their contents, they argued. (They didn’t attempt to apply Janus to allegedly misleading statements they made in oral communications.)
The SEC contended in its opposition brief that the Janus ruling can’t be applied to SEC fraud claims under Section 17(a) of the ’33 Act. It also pointed out that the documents used the construction “we,” and investors had previously been advised that Cioffi and Tannin were the individuals behind that “we.” And in investor conference calls, the two men made oral statements that incorporated by reference the statements in the documents, the SEC argued.
These are interesting issues. But with the apparent settlement of this case, we’ll have to wait for another SEC action to find out the answers.