The U.S. Securities and Exchange Commission is in discussions to settle its civil case against Dewey & LeBoeuf executive Joel Sanders, who was convicted in May of scheming to defraud investors in his former firm, court documents show.
The SEC wrote to Southern District Judge Valerie Caproni on Tuesday, indicating the possible deal with Sanders. SEC attorney Howard Fischer’s letter said a “negotiated resolution” would avoid the expense of litigation, and Sanders believes “the prospects of reaching any early resolution are greater than the threat of re-initiating litigation.”
The SEC filed a civil suit in 2014 at the same time criminal charges were announced against Dewey executives Steven Davis, Stephen DiCarmine and Sanders, alleging they fraudulently concealed the firm’s precarious finances ahead of its collapse. The SEC suit, alleging the executives and others facilitated a $150 million fraudulent bond offering using phony financial figures, has been stayed during the criminal case.
In the criminal case, Davis signed a deferred prosecution agreement last year, DiCarmine was acquitted at jury trial in May and Sanders was found guilty of scheme to defraud, securities fraud under the state’s Martin Act and conspiracy.
Fischer’s letter also said the SEC wants to lift the stay in its case, believing its claims against Sanders can be decided on summary judgment based on the collateral estoppel effect of his conviction. Sanders disagrees, wishing to extend the stay while his appeal of the criminal conviction is pending.
Sanders maintains he was not convicted of “securities fraud,” but found guilty by jury of violating the Martin Act, which carries different proof elements. Sanders further argues he has not yet been sentenced and intends to proceed with post-trial motions and an appeal. Lifting a stay would jeopardize appeal positions and infringe on his ability to use his Fifth Amendment rights, Sanders argues.
If the court doesn’t want to indefinitely stay the case, Sanders is requesting a 120-day extension of the stay to afford time for the parties to reach a negotiated resolution, according to Fischer’s letter.
In a short order Wednesday afternoon, Caproni said she is “not inclined to extend the stay” and ordered the parties to appear for a Sept. 15 court conference. In the meantime, Sanders can submit a letter explaining his legal basis for extending the stay if he wishes, Caproni said.
The SEC has previously reached partial settlements with Davis and two other defendants in its civil case, former controller Thomas Mullikin and former finance director Francis Canellas. Those settlements left open the issue of monetary sanctions. The SEC’s letter Tuesday said it “intends to defer seeking monetary sanctions, if any, with respect to those defendants until after the resolution of the case against DiCarmine and Sanders.”
Akerman partner Brian Miller, Sanders’ attorney in the SEC case, did not immediately respond to a request for comment.
Michael King, DiCarmine’s attorney in the SEC case and of counsel at Locke Lord in Chicago, said in light of his client’s acquittal this year, he hopes the SEC will conclude its case “ought to go away,” adding that DiCarmine had nothing to do with the bond offering at issue.