What Penny Stock Promoters Should Learn From President Obama’s State Of The Union Address

President Obama called on Congress Tuesday to toughen laws against securities fraud and to strengthen the ability of the Securities and Exchange Commission to punish Wall Street firms that repeatedly violate antifraud statutes.

In his State of the Union address, Mr. Obama also said he would ask the attorney general to establish a special financial crimes unit to prosecute cases of large-scale financial fraud.

It is not clear how that effort would differ from the Financial Fraud Enforcement Task Force, a cross-agency group that Mr. Obama established in November 2009. Its mission, as the White House put it then, was to “hold accountable those who helped bring about the last financial crisis and to prevent another crisis from happening.”

The two initiatives represent an attempt to give financial regulators a greater ability to police the financial markets. In addition, the proposals seek to acknowledge the continuing frustration among many Americans — exemplified by the Occupy Wall Street movement — that few financial executives have been prosecuted for their actions leading up to the crisis.

Given the election-year pressures and the continuing gridlock on Capitol Hill, neither measure is certain to win approval in this session of Congress.

The issue of how to deal with Wall Street firms that repeatedly violate securities laws has come into focus in recent months as the S.E.C. has stepped up its efforts to bring cases related to the financial crisis. Many of those cases involve financial companies that have violated the same laws many times before.

A New York Times analysis of S.E.C. enforcement actions over the last 15 years, published in November, found at least 51 cases in which the S.E.C. concluded that Wall Street firms had broken antifraud laws that, as part of settlements of earlier fraud cases, they had pledged never to breach. The 51 cases spanned 19 firms, including nearly all of the biggest financial companies — Goldman Sachs, Morgan Stanley, JPMorgan Chase & Company and Bank of America among them.

Mr. Obama first outlined his plans to crack down on repeat offenders in an economic speech in December in Osawatomie, Kan. “Too often, we’ve seen Wall Street firms violating major antifraud laws because the penalties are too weak and there’s no price for being a repeat offender,” Mr. Obama said. “No more. I’ll be calling for legislation that makes those penalties count so that firms don’t see punishment for breaking the law as just the price of doing business.”

Mary Schapiro, the chairwoman of the S.E.C., similarly called on Congress in November to raise the maximum penalties the commission could assess for securities laws violations, and to allow it to assess greater fines for repeat violations of antifraud statutes.

Currently, the S.E.C. can try to bring contempt charges only if a company has broken previous vows not to violate the law. In a letter to members of the Senate Banking Committee, Ms. Schapiro said that enhancing the S.E.C.’s ability to crack down on repeat offenders would “substantially enhance the effectiveness of the commission’s enforcement program by addressing existing limitations that have resulted in criticism regarding the adequacy of commission actions against those who violate the securities laws.”

The S.E.C. has also been criticized recently for its practice of allowing companies to settle allegations of securities fraud while neither admitting nor denying the charges. That is a standard practice used for years by the S.E.C. as well as other regulatory agencies, but it has come under increasing scrutiny since the financial crisis.

Most recently, Judge Jed S. Rakoff of the Federal District Court in Manhattan rejected a proposed $285 million settlement in a case between the S.E.C. and Citigroup over a complex mortgage security that it marketed in 2007, as the housing market was beginning to crumble.

In his opinion, Judge Rakoff said the settlement’s “neither admit nor deny” terms left him with no conclusive evidence with which to determine whether the proposed punishment was just.

Judge Rakoff said such settlements, which often involve penalties of tens or hundreds of millions of dollars, were frequently viewed by the settling companies “as a cost of doing business imposed by having to maintain a working relationship with a regulatory agency, rather than as any indication of where the real truth lies.”

In the State of the Union address, Mr. Obama said that banks and financial companies should be held accountable for their actions and should face the same type of consequences as anyone else who has been charged with breaking the law.

Source: The New York Times

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