The U.S. Securities and Exchange Commission announced recently that it had settled insider trading charges with Diamondback Capital Management LLC. As required by a recent SEC policy change, the proposed settlement appears to be the first not to include a representation that the defendant “neither admits nor denies” the SEC’s charges.
Under the proposed settlement, Diamondback agreed to pay more than $9 million and consented to a judgment that permanently enjoins it from future violations of federal anti-fraud laws. In itself, the settlement is not unusual. As the New York Times reports, however, this settlement marks “a departure from the SEC’s historical practices” because it “does not include language that the fund ‘neither admits nor denies’ any wrongdoing in the case.”
The Diamondback settlement appears to have roots in a new SEC policy prohibiting companies that admit to fraudulent conduct in parallel criminal proceedings from settling SEC charges without admitting guilt of the same conduct.
In the Diamondback case, the company entered into a nonprosecution agreement with the U.S. Department of Justice which contains an agreed statement of facts acknowledging that certain Diamondback employees traded securities based on material nonpublic information. As a result of this admission, Diamondback was not permitted by the SEC to settle charges on a “neither admit nor deny” basis.
There has been widespread speculation — by Reuters and the Washington Post, et al. — that the SEC’s policy change and the Diamondback settlement are, in fact, reactions to criticism from federal district court judges who have questioned the adequacy of the facts typically admitted in consent judgments.
The SEC vigorously denies that there is a tie between the new policy and this heightened judicial scrutiny of SEC settlements. Nevertheless, in the Diamondback case, the SEC took the unusual step of obtaining from the company an agreed statement of facts, which it reportedly submitted to the court for consideration in weighing up the proposed settlement agreements.
Those looking for a template for the factual allegations the SEC might include in future settlement will be sorely disappointed: the proposed agreement is not yet publicly available and, we have been informed by the SEC that it will not become available unless and until the presiding judge approves the settlement.This lack of transparency is uncharacteristic in SEC matters, and it comes as a surprise in a case pending in the same district where Judge Jed Rakoff in November derided the SEC for failing to make clear that the public interest was served by a proposed settlement.From what we know about the proposed Diamondback settlement, it appears the case may be a harbinger of a new era in SEC settlements. The takeaways are simple: (1) where a company admits to criminal conduct, the SEC is prepared to stick to its new policy of prohibiting regulated entities from settling charges on a “neither admit nor deny” basis; and (2) regulated entities should be prepared to negotiate and submit to the court more fulsome factual allegations in support of a proposed settlement agreement.