For the Feds, Some Wall Street Firms Are Too Big — to Punish

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McClatchy Newspapers

For the Feds, Some Wall Street Firms Are Too Big — to Punish

by
Chris Adams

WASHINGTON - Forget too big to fail. In the eyes of federal
regulators, many Wall Street firms are too big to punish.

During the past three years, some of the nation's largest financial
firms have been accused by the government of cheating or misleading
clients and ripping off tens of thousands of consumers of their
investments.

Despite
these findings, these financial giants got, sometimes repeatedly,
special exemptions from the Securities and Exchange Commission that
have saved them from a regulatory death penalty that could have
decimated their lucrative mutual fund businesses.

Among
the more than a dozen firms that have gotten these SEC get-out-of-jail
cards since January 2007 are some of Wall Street's biggest, including
Bank of America, Citigroup and American International Group.

SEC
rules permit corporate lawbreakers to apply for what are known as
Section 9(c) waivers from one of the agency's harshest penalties -
effectively shuttering the violator's mutual fund operations - but
regulators never rejected any of these firms' applications. While the
firms were punished in other ways, they were spared from what some
claimed would be "severe and irreparable hardships."

In fact, the
last time the SEC's staff could recall a waiver being turned down was
1978. The SEC declined to comment in detail on its decisions, however.

Despite
the massive securities frauds of the past decade, the SEC is coming off
a period of stagnant enforcement. The Government Accountability Office,
Congress' investigative arm, reported this year that SEC enforcement
workers have felt overwhelmed by their caseloads and undermined by SEC
leaders hesitant to levy heavy punishment.

The waivers typically
are part of the settlements the commission negotiates with companies
caught violating federal law. Securities experts think companies
wouldn't apply for waivers if they didn't think their applications
would be granted. At the same time, the fact that the SEC could someday
deny one is a major weapon in its arsenal, experts said.

The
infractions that led to the waiver applications raided Americans'
pocketbooks and savings accounts. Some cases involved money that
thousands of citizens had invested based on the advice of their trusted
financial advisers to pay tuition bills, make down payments on houses
or cope with routine monthly expenses.

Small business owners had
money they were counting on to pay their employees frozen by their
bankers, and even bigger companies such as KV Pharmaceutical weren't
immune. The St. Louis drug maker was forced to eliminate 700 jobs this
year, in part because some of its investments went sour.

McClatchy's
review of recent waiver applications also found that the SEC has
granted exemptions to the same firms more than once, once after a firm
committed the same violation of law, and the agency even approved one
for a company that misled the SEC in its application.

Indeed,
granting these waivers has become so routine that different firms use
identical language, culled from a 1940 congressional hearing, to argue
for unrelated exemptions.

Underpinning its decision not to levy
the penalties provided by the Investment Company Act of 1940, the SEC
essentially has accepted the Wall Street firms' argument that they're
too big and too complex to be subject to a law that was written almost
70 years ago.

Earlier this year, for example, the SEC said a
division of E-Trade Financial had been slicing tiny amounts of money
off "tens of thousands" of stock trades, using tactics such as "trading
ahead" of customers. That means that even when a customer had placed an
order to buy or sell stocks, E-Trade executed its own trade for the
same stock first, denying the customer the best price.

The SEC
calculated that E-Trade had cost its customers $28.3 million. While not
admitting guilt, E-Trade settled the case in U.S. District Court in New
York and agreed to pay $34 million in penalties.

In March,
E-Trade applied for a Section 9 waiver. Without it, the company said,
its in-house mutual fund operation could have been decimated,
potentially causing customers "severe and irreparable hardships." It
also said that it needed exemption from punishment that "could disrupt
investment strategies," "frustrate efforts to manage effectively the
funds' assets," and increase the costs to people who owned them,
E-Trade said. More than 1,500 employees could be affected.

Eight days later, the SEC indicated that it would grant the request.

Two
weeks after that, E-Trade closed the very mutual funds at issue -
harming the very customers it told the SEC it was trying to help.

In
fact, at the same time E-Trade was asking the SEC to help it save those
funds, the company had already filed notice elsewhere at the SEC that
it was planning to close them, SEC records show. At the time E-Trade
asked for its waiver, most of the funds couldn't even be purchased any
more.

The waiver still helps E-Trade because it could allow the
company to restart its mutual funds. E-Trade had no comment on its
actions.

Sometimes, "permanent" in SEC enforcement parlance has proved to be a temporary thing.

In
2003, Citigroup settled a case after the SEC accused it of manipulating
stock market research. The settlement "permanently restrained and
enjoined" Citigroup from violating a specific section of federal
securities law.

Then in 2006, the SEC cited Citigroup and other
firms for improperly marketing "auction rate securities," bonds issued
by municipalities, student loan entities and corporations. The agency
censured Citigroup and fined it $1.5 million, and Citigroup promised to
clean up its sales practices. The SEC indicated that was good enough:
In its attempt to deter more lawbreaking, the SEC declared, "this
settlement is appropriate."

Two years later, however, Citigroup
was back under SEC scrutiny. This time, the SEC said the firm had
improperly marketed auction rate securities, violating the same section
of law at issue in 2003.

Citigroup again settled with the SEC,
and while not admitting the allegations, it again agreed to not violate
that key federal securities law.

It was one of those auction rate investments that went sour on KV Pharmaceutical.

Citigroup
first approached the firm in 2005 to invest in the securities, pitching
them as safe and dependable - perfect for KV's needs. When the market
started souring in 2007, however, Citigroup never passed those concerns
on to KV, according to a lawsuit the drugmaker eventually filed in
federal court.

KV bought $10.7 million in the securities, then
another $16.9 million. And it kept right on buying them, long after
Citigroup traders were receiving e-mails like this one intended to
boost sales: "Hit all bids . . . Times like these, we need to do
whatever is necessary. Just make sure all hands are on deck and paper
is sold," according to court records.

KV, in its lawsuit, said
Citigroup "put its economic interests before KV's" in an effort to save
Citigroup's own faltering finances. All along, KV said, it was assured
there was nothing to worry about.

The auction rate securities market failed in February 2008, and KV was left holding more than $70 million it couldn't spend.

While
the settlements the SEC negotiated with Citigroup and other banks could
make some customers whole, it didn't help KV in time. In February,
facing a cash crunch, it said it was cutting 700 jobs, due in part to
its auction rate problems.

Its lawsuit is pending; neither KV nor Citigroup would comment.

Meanwhile, Citigroup filed its application for a waiver, and the SEC granted it.

In
theory, securities law allows the SEC to levy heavier fines or extract
greater punishment from companies that violate their previous
"permanent" injunctions.

"The SEC has a miserable record of
policing and keeping track of recidivism even of prior violations,"
said James Cox, a Duke University law professor and an expert on
financial regulation. "I think it's not uncommon and I think it's a
problem."

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