SEC injunctions won’t leave wiggle room anymore

If you remember the book or movie “All the President’s Men,” you may recall the “nondenial denial” issued by the Nixon folks during Watergate.

The point of the nondenial denial was to have it both ways. If you deny the facts and are proven wrong, you’re a liar on top of everything else. With a nondenial denial, you don’t admit guilt, and if the facts come back to bite you, you can at least claim you didn’t lie.

The legal field is full of such practices. Someone sues a company, the company agrees to a settlement and pays some money — but doesn’t concede it did anything wrong. It issues a press release saying it settled “to get the matter behind it” and to save the costs of going to court.

This kind of thing has long been a staple at the Securities and Exchange Commission. The SEC would accuse a company or individual of violating securities laws. The defendant agreed to an injunction barring further violations, while at the same time stating it “neither admits nor denies” that it did any such act in the first place.

In many cases, the SEC follows up with a proceeding to seek punishment and retribution — a big fine or ban from the securities industry, for example.

What happens next? Typically, the defendant starts fighting back. Sure, it signed the injunction, but it didn’t admit or deny guilt. The shorthanded, cash-strapped SEC then has to jump through hoops to make the charges stick.

Enough. The SEC decided late last month that defendants won’t be allowed to have it both ways any longer. Now, a defendant who agrees to an injunction will be viewed as conceding the allegations.

This may sound like a legal fine point, but it’s an important step in the right direction of ensuring that securities violators suffer real consequences.

Injunctions are valuable because they offer a relatively quick and streamlined way for the SEC to stop ongoing fraud. But defendants don’t want to admit guilt because that would make them more vulnerable to lawsuits by investors and others. So, to get defendants to agree, the SEC has allowed injunctions to include the line about neither admitting or denying guilt.

The new policy makes it easier for the SEC to follow injunctions with disciplinary actions.

Defendants who want to fight charges don’t have to agree to the injunction. Nothing in the new policy curtails defendants’ right to defend themselves.

The new policy was announced as part of an SEC order imposing punishment on a Greensboro, N.C., investment advice firm, Asset Management & Research Inc., and its president and owner, Marshall E. Melton.

From mid-1994 through late 1996, Asset Management and Melton lied to investors to get them to put money into three companies Melton controlled, the SEC found. One set of investors was told, for example, that they could earn 75 percent to 80 percent in the first year after putting money into one of the companies.

Investors were told that each company was separate when, in fact, invested funds were improperly mingled. One investor’s money was used to repay a loan Melton’s wife had made to shore up another Melton investment.

Defrauded investors got the SEC on the case, and on May 4, 1998, Melton and his company agreed to an injunction prohibiting them from violating anti-fraud laws. Although the injunction described the offenses in detail, when the SEC later began disciplinary proceedings, Melton and the company denied they’d committed those acts.

In the future, defendants won’t be able to make that gambit work, the SEC says. On July 25, Melton was barred from the securities industry for life, and the now-defunct AMR was denied the right to go back into business.

Bad actors like Melton and AMR have been gaming the system for far too long.

Kudos to the SEC.