Church fined by SEC

[Teancum]

3 minutes ago, smac97 said:

As soon as you and yours stop fabricating arbitrary and unreasonable standards to impose on the Church - apparently for the sole purpose of raking the Church across the coals for not complying with your expectations about what it ought to do - I'll stop pointing out the brazen irony of your position relative to a private party's obligation to publicly disclose its private and sensitive information.

Until then...

Thanks,

-Smac

Meh. Continue to make your stupid argument and look foolish. 

[The Nehor]

5 minutes ago, smac97 said:

As soon as you and yours stop fabricating arbitrary and unreasonable standards to impose on the Church - apparently for the sole purpose of raking the Church across the coals for not complying with your expectations about what it ought to do - I'll stop pointing out the brazen irony of your position relative to a private party's obligation to publicly disclose its private and sensitive information.

Until then...

Thanks,

-Smac

Because being open about the existence of an investment portfolio is the same thing as deliberately making yourself vulnerable to identity theft and giving randos access to move money from your accounts.

You can argue that the church can try to obscure that portfolio. You can even argue they have a right to or even should. I even agree with you to a point. Then you compare it to stupid disclosures and make it clear this defensive rhetoric is just a mishmash of unserious clownish antics. And before you make the obvious counter argument I don’t pretend my clownish antics are rational.

[mrmarklin]

28 minutes ago, The Nehor said:

If you expect me to believe that everyone who has settled a case is not guilty or violating the law or ignoring regulations then:

LOL

If you expect me to think that it is unfair to believe or think anyone who settles violated the law then:

LOLOLOLOLOLOLOLOL

I do not believe that a settlement is a confession or an exoneration.

We're all entitled to our opinions.😏

 

I expect nothing.

[Analytics]

 

14 minutes ago, smac97 said:

And none of those factual allegations have been accorded adjudicatory review, which would include Due Process, evidentiary requirements, and so on.

Which of the allegations, you mean?

Thanks,

-Smac

I’m referring to the things the SEC refers to as “facts”, which are listed under the heading “Facts”, which are paragraphs 3 through 35 of the Order, which the SEC made after an extensive investigation with the Church’s cooperation.

The Church hasn’t denied any of these “facts”, yet YOU claim that the SEC order is merely an adjudication of “disputed facts.” 

Apparently you are the only one disputing the facts of the case, and that is based not on any knowledge about what happened, but rather on how you extrapolate into the SEC investigation the judicial process you are accustomed to in Utah County real estate disputes.

Or am I wrong? Who, besides you, dispute the veracity of what the SEC refers to as “facts”?

[The Nehor]

9 minutes ago, mrmarklin said:

I expect nothing.

I’ve tried that. It doesn’t make the pain stop.

[bluebell]

45 minutes ago, ttribe said:

 

Pogi is correct. To put it in TV Cop Show terms, they consented to the imposition of the terms of the settlement (e.g. fines, cease-and-desist), but they exercised their "right to remain silent" (so to speak).

I think I’m more confused now.

You said earlier that “The Church agreed to this Order which states it violated securities law. Not an allegation.”

How do they agree to an order that declares their guilt as “fact” (and not an allegation), while they choose to stay silent and not actually agree their guilt is a fact at the same time?

[bluebell]

51 minutes ago, smac97 said:

The Church has neither admitted nor denied any of the factual allegations in the SEC Order.

And none of those factual allegations have been accorded adjudicatory review, which would include Due Process, evidentiary requirements, and so on.

Which of the allegations, you mean?

Thanks,

-Smac

Can you elaborate on “factual allegations”?  Because other posters have implied that you can be one or the other but not both. 

[california boy]

2 hours ago, pogi said:

They can at least be more forthcoming about why they did it, but they keep going on and on about how no attempt to conceal anything was attempted and it was all an unintentional mistake.  They can own up to a lot more than they are without legally incriminating themselves. 

It feels like "the church never hid their history" defense all over again.  It is a pattern.  If they don't own up to it, how can I trust that they are ever going to learn their lesson and that this kind of BS won't keep happening over and over and over again? 

I have pretty much stayed out of this thread other than pointing out the absurdity of the excuse that the Church it its financial information to protect members from mirroring their investments. 

It seems like this thread is coming to a close.  Both sides have made their positions repeatedly.  Those that are defending the church insist that what the Church did was just a minor traffic ticket offense.  Nothing to see here.  Moving on.  And the other side pointing out the hypocrisy of how the Church defines honesty and a pattern of not being truthful.  

I defended the Church for years and managed to ignore issues that didn't quite seem truthful.  I weighed the overall good of the Church and literally excused them for wrong behavior.  That is until the Church leaders lied to me to the extent that it changed the course of my life believing in that lie.  When I stepped back from the Church and started not having an instant reflex reaction to defend the Church, I started to see many issues that I really could no longer defend.  Many will keep defending the Church no matter what it does, until something happens in their own personal lives that causes them to no longer be able to defend the Church.  For some, that point may never occur.   But for those that experience that breaking point, they will start on a path where they see multiple situations of this repeated untrustworthy behavior.  It gets to the point where you can no long have that instant reflex to defend the Church.   For some, this issue may be that point.  For most, their lives and their relationship with the Church will not change.  The back and forth that happens on this thread will not make a difference to either side.  

I often used to say that even if the Church is not true, there is still so much good that it brings into my life, I would still be involved in the Church.  It was only when there was more harm in my life than good that drove me to leaving the Church.  I think that statement could be made about every critic that is on this board.  For the most part, we were all faithful believers of the Church, regularly overlooking the imperfections and human frailties.  It was not the human frailties that pushed us out of the Church, it was the fundamental dishonesty of Church leaders hiding truths and pushing narratives that were not true.  If the Church is not able to be truthful to it's members, then how true can the Church be?  That is a question each member has to ask.  And each will have a different answer to that question.

I watched the Oscar nominated film "Women Talking" a couple of weeks ago.  I found it to be one of the most compelling films I saw all year. It is not a slick Hollywood production.  In fact it is quite simple, filmed almost entirely in a barn, with women talking about a religion that they had committed their lives to.  Sometimes seeing things from the outside makes things much clearer than being a part of it.  I would strongly recommend this movie to everyone that wants a movie of substance and thought provoking questions.  I am certainly not saying the same issues facing these women compare in any way to the Church, but how they deal with religious problems is very similar.  

[CV75]

1 hour ago, Teancum said:

A vapid response. 

[bluebell]

26 minutes ago, Analytics said:

 

I’m referring to the things the SEC refers to as “facts”, which are listed under the heading “Facts”, which are paragraphs 3 through 35 of the Order, which the SEC made after an extensive investigation with the Church’s cooperation.

The Church hasn’t denied any of these “facts”, yet YOU claim that the SEC order is merely an adjudication of “disputed facts.” 

Apparently you are the only one disputing the facts of the case, and that is based not on any knowledge about what happened, but rather on how you extrapolate into the SEC investigation the judicial process you are accustomed to in Utah County real estate disputes.

Or am I wrong? Who, besides you, dispute the veracity of what the SEC refers to as “facts”?

It sounds like the church isn’t allowed to deny the facts formally, per the agreement of the settlement.

But, could the church’s statement that was released a couple days ago, where they repeat that they did not purposefully break the law, be a way for them to dispute the facts that the SEC has claimed?

[smac97]

On 2/22/2023 at 4:09 PM, OGHoosier said:

I'll amend this further: "practical" investment discretion.

On paper, the Business Managers had investment discretion, which I think was the angle that EPA's lawyers took.

I spent a bit of time looking as SEC guidance for 13F issues, particularly "investment discretion," and found that guidance to be pretty clear.

What this guidance looked like a few decades ago, however, is another issue.

On 2/22/2023 at 4:09 PM, OGHoosier said:

Of course, EPA governed the whole set of securities as a unity with the Business Managers as rubberstamps. The thing is, the law states that "investment discretion" allows the Business Manager to outsource the actual responsibility for investing to somebody else:

Quote

An institutional investment manager exercises investment discretion if: (i) the manager has the power to determine which securities are bought or sold for the account(s) under management; or (ii) the manager makes decisions about which securities are bought or sold for the account(s), even though someone else is responsible for the investment decisions.

I assume you found this guidance at the same place I did last night.  Here:

Quote

Question 6

Q: What is "investment discretion"?

A: An institutional investment manager exercises investment discretion if: (i) the manager has the power to determine which securities are bought or sold for the account(s) under management; or (ii) the manager makes decisions about which securities are bought or sold for the account(s), even though someone else is responsible for the investment decisions. See Securities Exchange Act Section 3(a)(35), and Rule 13f-1(b) under the Securities Exchange Act.

A few thoughts on this:

1. Timeframe for Church/EPA Decisions: Per the SEC Order, the Church and EPA first started looking at 13F in 1998, took its first steps on this issue in 2001 (when it created "a trust, and a separate LLC under the ownership of the trust"), and actually filed its first 13F Form in February 2003.  In other words, the formative events took place 20-25 years ago.

2. Availability of "Guidance" from the SEC: Per this article (footnote 62), this guidance existed at least as early as May 2005.  So that seems pretty close to the formative events here.

3. "Someone Else" Language is Statutory: The statute cited in Question 6 above, 15 U.S. Code § 78c(a)(35), seem to substantiate this (emphasis added) :

Quote

A person exercises “investment discretion” with respect to an account if, directly or indirectly, such person (A) is authorized to determine what securities or other property shall be purchased or sold by or for the account, (B) makes decisions as to what securities or other property shall be purchased or sold by or for the account even though some other person may have responsibility for such investment decisions, or (C) otherwise exercises such influence with respect to the purchase and sale of securities or other property by or for the account as the Commission, by rule, determines, in the public interest or for the protection of investors, should be subject to the operation of the provisions of this chapter and the rules and regulations thereunder.

This is seemingly important because, per the SEC Order, the SEC found it significant

• that "Ensign Peak failed to transfer investment discretion to the LLC" (paragraph 10),
• that the "Investment Management Agreements" the LLCs executed "assigned discretion and authority to manage the securities portfolio to the LLCs" (paragraph 18),
• that the LLCs "never exercised investment discretion over the Church’s assets" (paragraph 19),
• that EPA "continued to manage the entire portfolio and at all times maintained investment and voting discretion over all the securities listed in the Forms 13F" (paragraph 27), and
• that the managers of the LLCs "performed no functions for the Clone LLCs outside of signing the Form 13F signature pages each quarter" (paragraph 21).

I am not sure what to make of these findings.  They appear to be intended to inculpate EPA and/or the Church, but the statute passed by Congress appears to allow "some other person" than the LLCs (such as EPA) to "have responsibility for {} investment decisions."

4. Shift from "Investment Discretion" to "Sole Investment Discretion": Per the SEC Order, the references to "investment discretion" start in the "Summary" section:

Quote

 The Forms 13F that Ensign Peak filed in the names of these LLCs misstated, among other things, that they had sole investment and voting discretion over the listed securities, when Ensign Peak at all times retained discretion over all investment decisions. 

And in paragraph 27 of the Order:

Quote

Each Form 13F filed in the name of a Clone LLC misstated that the LLC had sole investment discretion for the securities listed, that there were no other managers for these securities, and that the Clone LLC had sole voting discretion over these securities. Even though the IMAs stated that Ensign Peak had delegated investment discretion, Ensign Peak continued to manage the entire portfolio and at all times maintained investment and voting discretion over all the securities listed in the Forms 13F.  

Note the shift here from "investment discretion" (the actual language of the statute passed by Congress) to "sole investment discretion," which is the phrase used twice in the SEC Order, including paragraph 27, which is pretty pivotal in terms of compliance because, again, the statute allows "some other person" than the LLCs (such as EPA) to "have responsibility for {} investment decisions."

So how do we explain this shift?  Where did the SEC get the "sole investment discretion?" 

And doesn't adding "sole" to the statutory text substantially alter the text itself?

How does the SEC reconcile its apparent requirement of "sole investment discretion" with the statutory text stating that "{a} person exercises 'investment discretion' with respect to an account if, directly or indirectly, such person ... makes decisions as to what securities or other property shall be purchased or sold by or for the account even though some other person may have responsibility for such investment decisions")? 

Is the requirement for "sole investment discretion" an editorial gloss/embellishment that not only goes beyond the statutory language passed by Congress, but even contradicts that statutory language?

We report, you decide!

5. "Sole Investment Discretion" as a Component of Filling out a Form: The SEC has provided guidance on how to fill out the 13F Form:

Quote

The Information Table – Columns 5–8

Question 44 (Updated: January 3, 2023)

Q: What should I enter in Column 5, "Amount and Type of Security"?

A: Generally, you will list the number of shares of a security here. For options, you will also enter either PUT or CALL, whichever is appropriate. Column 5 is where you actually indicate that the listing is an option because most of the column entries for an option refer to the underlying security, rather than to the option itself (i.e., Columns 1-5 and 7-8). For example, in reporting an option position, you would enter COM in Column 2 and list the CUSIP number for the underlying stock in Column 3. See Special Instructions 10 and 11.b.v to Form 13F [Adobe Acrobat^® (PDF) file].

Question 45 (Updated: January 3, 2023)

Q: What is sole investment discretion?

A: If you are the only entity managing the Section 13(f) securities reported on your Form 13F and you do not control (or are not controlled by) another reporting person, you have sole investment discretion. See Securities Exchange Act Section 3(a)(35), and Rule 13f-1(b). Enter the word SOLE in Column 6. See Special Instruction 11.b.vi to Form 13F [Adobe Acrobat^® (PDF) file].

For example, if you are an investment advisory firm reporting your aggregate holdings for all accounts under your management, you have sole investment discretion (even though the accounts may be handled by different individuals within your firm).

Question 46 (Updated: January 3, 2023)

Q: What is shared-defined investment discretion?

A: If you control another entity (or are controlled by another entity), you should report shared-defined investment discretion. This category includes parent corporations and their subsidiaries (e.g., a bank holding company and its subsidiaries), investment advisers and mutual funds that they advise, and insurance companies and their separate accounts. See Rule 13f-1(b) under the Securities Exchange Act. Enter the word DEFINED in Column 6. See Special Instruction 11.b.vi to Form 13F [Adobe Acrobat^® (PDF) file].

For example, if you are a bank holding company, you are required to file Form 13F even though you may not be directly involved in the management of Section 13(f) securities. Although your trust department or other subsidiary may handle that responsibility, you are deemed to have shared-defined investment discretion based on your corporate structure.

Take a look at Question 45: "If you are the only entity managing the Section 13(f) securities reported on your Form 13F and you do not control (or are not controlled by) another reporting person, you have sole investment discretion."  This seems to comport with the expectations of the SEC, but not with the statutory text (which, again, does not reference "sole investment discretion," just "investment discretion," and which discretion can - per the actual statute - be held by one party (such as the LLCs) "even though some other person {such as EPA} may have responsibility for such investment decisions."

Now take a look at Question 46: "If you control another entity (or are controlled by another entity), you should report shared-defined investment discretion."  Again, this seems to comport with the expectations of the SEC, but only because the SEC has apparently imported a requirement that is not part of, and perhaps even contradicts, the statutory text. 

On 2/22/2023 at 4:09 PM, OGHoosier said:

So I think the Ensign Peak lawyers banked on the Business Managers having on-paper "investment discretion" but leaving the actual decisions to EPA as being compliant with the law. The SEC didn't agree, but that is very much a matter for statutory interpretation as what I just quoted is the extent of the law as to "investment discretion."

I suspect we'll never get an answer to this.  Oh, well. 

On 2/22/2023 at 4:09 PM, OGHoosier said:

The hilarious thing about it is that if EPA had just released one of their employees, hired him on as the Business Manager, and then made a spit-and-a-handshake agreement that said Business Manager would do exactly the same thing as they did...there would be no legal problem. 

Yes.  Sam Brunson essentially conceded as much.  The SEC's findings are based on this technical distinction, and one that may not even be compatible with the statutory text.

On 2/22/2023 at 4:09 PM, OGHoosier said:

Now, my next question is - is this a common tactic on the Street? Because if it is, I think that sheds some light on the decision-making process here. Different industries have different standards for what counts as "legit" and not within the industry, standards which may look opaque to outsiders. If this sort of wink-and-a-nod approach to satellite LLC-use happens a lot on the Street, then it makes sense why EPA would think it was normal, even though it doesn't look that way for us. 

Good question.

Thanks,

-Smac

Edited October 16, 2023 by smac97

[ttribe]

19 minutes ago, bluebell said:

I think I’m more confused now.

You said earlier that “The Church agreed to this Order which states it violated securities law. Not an allegation.”

How do they agree to an order that declares their guilt as “fact” (and not an allegation), while they choose to stay silent and not actually agree their guilt is a fact at the same time?

They agree to accept the order (which basically means the fine and cease-and-desist) while admitting no guilt. The statements of fact are part of the order justifying the imposition of a fine and a cease-and-desist.

To go back to the (IMO, faulty) traffic ticket comparison, think of it this way - In the State of Arizona if you are given a speeding ticket, you have three options - 1) admit guilt, pay fine; 2) plead not-guilty and have a trial; and 3) plead no-contest, pay fine. In the first and second options, you are on the record as stating "I did it," or "I didn't do it." In the third one, you are disputing nothing offered by the State as evidence of your guilt, but you aren't admitting you are guilty either. You are simply saying to the Court - "I'll pay the fine to end this situation and I won't dispute any of the facts offered by the State, but I won't actually admit I did what they're saying I did."

I may have a little too much personal experience with speeding tickets.

[smac97]

17 minutes ago, bluebell said:

Can you elaborate on “factual allegations”?  Because other posters have implied that you can be one or the other but not both. 

An allegation is "a claim of fact not yet proven to be true."

Alternatively, a "fact" is, in a legal context, a claim which has been "proven to be true."  This is done through the adjudicative process.  Motions and trials.  Due process.  Submission of evidence.  Weighing of evidence by an impartial factfinder.  As I understand it, none of this has happened here.  We just have the "allegations" from the SEC, and a settlement - without either an admission or denial of the "allegations" - from the Church.

There is nothing unique or unusual about this.  Parties settle disputes all the time.  Such settlements replace the adjudicative process.

Thanks,

-Smac

[bluebell]

3 minutes ago, smac97 said:

An allegation is "a claim of fact not yet proven to be true."

Alternatively, a "fact" is, in a legal context, a claim which has been "proven to be true."  This is done through the adjudicative process.  Motions and trials.  Due process.  Submission of evidence.  Weighing of evidence by an impartial factfinder.  As I understand it, none of this has happened here.  We just have the "allegations" from the SEC, and a settlement - without either an admission or denial of the "allegations" - from the Church.

There is nothing unique or unusual about this.  Parties settle disputes all the time.  Such settlements replace the adjudicative process.

Thanks,

-Smac

Is it unusual then that the SEC refers to the allegations as facts?

[Analytics]

5 minutes ago, bluebell said:

It sounds like the church isn’t allowed to deny the facts formally, per the agreement of the settlement.

But, could the church’s statement that was released a couple days ago, where they repeat that they did not purposefully break the law, be a way for them to dispute the facts that the SEC has claimed?

Is that a distinction without a difference?

In my professional life, I sign important documents on occasion. When I do, I look at the words carefully, think about what they mean, and double and tripple check everything. It just blows my mind that a respectable organization would ask employees to sign things that just weren’t true, that they’d give them the signature pages and not the details of what they were signing, and that they couldn’t actually know about anyway.

On one level it’s no big deal—a minor traffic ticket. On another level, it is an act of intense cynicism towards any reasonable standard of professionalism and integrity.

[Analytics]

6 minutes ago, smac97 said:

An allegation is "a claim of fact not yet proven to be true."

Alternatively, a "fact" is, in a legal context, a claim which has been "proven to be true."  This is done through the adjudicative process.  Motions and trials.  Due process.  Submission of evidence.  Weighing of evidence by an impartial factfinder.  As I understand it, none of this has happened here.  We just have the "allegations" from the SEC, and a settlement - without either an admission or denial of the "allegations" - from the Church.

There is nothing unique or unusual about this.  Parties settle disputes all the time.  Such settlements replace the adjudicative process.

Thanks,

-Smac

So, are you accusing the SEC of lying by calling mere allegations “facts”?

Edited February 23, 2023 by Analytics

[bluebell]

6 minutes ago, ttribe said:

They agree to accept the order (which basically means the fine and cease-and-desist) while admitting no guilt. The statements of fact are part of the order justifying the imposition of a fine and a cease-and-desist.

To go back to the (IMO, faulty) traffic ticket comparison, think of it this way - In the State of Arizona if you are given a speeding ticket, you have three options - 1) admit guilt, pay fine; 2) plead not-guilty and have a trial; and 3) plead no-contest, pay fine. In the first and second options, you are on the record as stating "I did it," or "I didn't do it." In the third one, you are disputing nothing offered by the State as evidence of your guilt, but you aren't admitting you are guilty either. You are simply saying to the Court - "I'll pay the fine to end this situation and I won't dispute any of the facts offered by the State, but I won't actually admit I did what they're saying I did."

I may have a little too much personal experience with speeding tickets.

OK, if I’m understanding correctly, they agreed to pay the order, but they do not agree (or disagree) that the order contains any fax in support of wrongdoing?

(when it comes to tickets, my husband is a fan of the “plea in abeyance” option. You pay a larger ticket then you might otherwise have had to pay, but if you don’t get another ticket for a specific amount of time, then it falls off of your record and the insurance never knew that it existed. 😂)

[SteveO]

27 minutes ago, california boy said:

I have pretty much stayed out of this thread other than pointing out the absurdity of the excuse that the Church it its financial information to protect members from mirroring their investments. 

It seems like this thread is coming to a close.  Both sides have made their positions repeatedly.  Those that are defending the church insist that what the Church did was just a minor traffic ticket offense.  Nothing to see here.  Moving on.  And the other side pointing out the hypocrisy of how the Church defines honesty and a pattern of not being truthful.  

I defended the Church for years and managed to ignore issues that didn't quite seem truthful.  I weighed the overall good of the Church and literally excused them for wrong behavior.  That is until the Church leaders lied to me to the extent that it changed the course of my life believing in that lie.  When I stepped back from the Church and started not having an instant reflex reaction to defend the Church, I started to see many issues that I really could no longer defend.  Many will keep defending the Church no matter what it does, until something happens in their own personal lives that causes them to no longer be able to defend the Church.  For some, that point may never occur.   But for those that experience that breaking point, they will start on a path where they see multiple situations of this repeated untrustworthy behavior.  It gets to the point where you can no long have that instant reflex to defend the Church.   For some, this issue may be that point.  For most, their lives and their relationship with the Church will not change.  The back and forth that happens on this thread will not make a difference to either side.  

I often used to say that even if the Church is not true, there is still so much good that it brings into my life, I would still be involved in the Church.  It was only when there was more harm in my life than good that drove me to leaving the Church.  I think that statement could be made about every critic that is on this board.  For the most part, we were all faithful believers of the Church, regularly overlooking the imperfections and human frailties.  It was not the human frailties that pushed us out of the Church, it was the fundamental dishonesty of Church leaders hiding truths and pushing narratives that were not true.  If the Church is not able to be truthful to it's members, then how true can the Church be?  That is a question each member has to ask.  And each will have a different answer to that question.

I watched the Oscar nominated film "Women Talking" a couple of weeks ago.  I found it to be one of the most compelling films I saw all year. It is not a slick Hollywood production.  In fact it is quite simple, filmed almost entirely in a barn, with women talking about a religion that they had committed their lives to.  Sometimes seeing things from the outside makes things much clearer than being a part of it.  I would strongly recommend this movie to everyone that wants a movie of substance and thought provoking questions.  I am certainly not saying the same issues facing these women compare in any way to the Church, but how they deal with religious problems is very similar.  

You guys…

 

*facepalm*
 

I’m just saying…when I leave the church, it won’t be over an SEC violation

[bluebell]

3 minutes ago, Analytics said:

Is that a distinction without a difference?

In my professional life, I sign important documents on occasion. When I do, I look at the words carefully, think about what they mean, and double and tripple check everything. It just blows my mind that a respectable organization would ask employees to sign things that just weren’t true, that they’d give them the signature pages and not the details of what they were signing, and that they couldn’t actually know about anyway.

On one level it’s no big deal—a minor traffic ticket. On another level, it is an act of intense cynicism towards any reasonable standard of professionalism and integrity.

I’m not really addressing any of that. I’m addressing the point (that I think you’ve made a couple times now, but I could be mistaken) that the church not denying the facts presented by the SEC is a subtle sign that they know they are guilty.

If I am understanding that argument correctly, then whether or not they are allowed to deny the allegations—having signed a statement, which declared that they neither agree or disagree— seems relevant.

Also relevant, if one is attempting to make that argument about a lack of denial meaning some thing, is that the church has presented statements that go out of their way to declare that the church did not knowingly break the law.

Which would seem to be a denial of the facts presented by the SEC, just not a formal one.

[smac97]

46 minutes ago, Analytics said:

I’m referring to the things the SEC refers to as “facts”, which are listed under the heading “Facts”, which are paragraphs 3 through 35 of the Order, which the SEC made after an extensive investigation with the Church’s cooperation.

And which, nonetheless, are allegations of fact.

Your lack of familiarity with the law is really showing here.  When an attorney drafts a civil complaint, in pretty much always includes a section entitled "Statement of Facts."  Now, are these statements "facts?"  No.  They are allegations, that is, "claim{s} of fact not yet proven to be true."

Just because a statement is labeled as a "fact" does not make it so.  A default (the defendant failing to respond to or participate in the suit) can do that, or else the findings of the court will do that.

Also, you are ignoring section II of the Order: 

Quote

In anticipation of the institution of these proceedings, Respondents have submitted Offers of Settlement (the “Offers”) which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings herein, except as to the Commission’s jurisdiction over them and the subject matter of these proceedings, which are admitted, 

You are also ignoring footnote 1:

Quote

 The findings herein are made pursuant to Respondents’ Offers of Settlement and are not binding on any other person or entity in this or any other proceeding. 

I get it.  You really really want to have some good good "Schadenfreude." 

You really want to be able to say that the SEC's order includes "facts" (as opposed to unsubstantiated and unproven allegations).  

You really want to condemn the Church.

But there has not been any adjudicative proceeding.  No weighing of evidence.  No due process.  No impartial findings of fact.  

These things matter.  A lot.  A lot.  You may want to gloss over or ignore them, but attorneys wouldn't, nor would most fairminded persons.

46 minutes ago, Analytics said:

The Church hasn’t denied any of these “facts”,

Nor has the Church admitted any of these "facts" (which are, again, allegations).

46 minutes ago, Analytics said:

yet YOU claim that the SEC order is merely an adjudication of “disputed facts.” 

No.  I am saying that it is my understanding that the order is not an "adjudication of 'disputed facts.'"

Again, your lack of legal training and experience is really showing here.

46 minutes ago, Analytics said:

Apparently you are the only one disputing the facts of the case,

Oh, come on.  This is a message board.  We are a bunch of bystanders talking about a news item.  We are, in the main, speaking arguendo.  See here:

Quote

Arguendo is a Latin legal term meaning for the sake of argument. "Assuming, arguendo, that ..." and similar phrases are used in courtroom settings, academic legal settings, and occasionally in other domains, to designate provisional and unendorsed assumptions that will be made at the beginning of an argument in order to explore their implications.

The origin of the word Arguendo is based on the Latin word arguendum which means "to argue".

Assuming arguendo allows an attorney to examine the conclusions of premises without admitting that these premises—often the asserted facts of the opposing party—could be true.^[1][2]

If you can establish that the SEC Order constitutes an adjudication of the facts, then do so.  Until then, the document itself belies your suggestion.

46 minutes ago, Analytics said:

and that is based not on any knowledge about what happened,

I am not claiming "knowledge about what happened."  I am speaking arguendo about what the SEC has alleged to have happened.

Again, your lack of legal training and experience is really showing here.  Attorneys and judges regularly "designate provisional and unendorsed assumptions that will be made at the beginning of an argument in order to explore their implications," as it allows us "to examine the conclusions of premises without admitting that these premises—often the asserted facts of the opposing party—could be true."

46 minutes ago, Analytics said:

but rather on how you extrapolate into the SEC investigation the judicial process you are accustomed to in Utah County real estate disputes.

Um, no.  I read the SEC Order, and am going on that (and on 19 years of practicing law throughout Utah).  

I encourage you to not resort to a reverse Appeal to Authority here, as you will only embarrass yourself.  

46 minutes ago, Analytics said:

Or am I wrong?

Yes, I think you are wrong.  Very much so.

46 minutes ago, Analytics said:

Who, besides you, dispute the veracity of what the SEC refers to as “facts”?

Oh.  So "facts" are to be determined by a popularity contest?  That's how you approach legal issues?  Are you sure you want to do that?

Thanks,

-Smac

[smac97]

1 hour ago, Teancum said:

Meh. Continue to make your stupid argument and look foolish. 

Meh.  Continue your arbitrary and ad hoc demands about what the Church should due re: its private information, all the while excusing yourself from complying with those demands.

"Rules for thee, but not for me" once again rears its unsightly visage.

Thanks,

-Smac

[bluebell]

20 minutes ago, Analytics said:

So, are you accusing the SEC of lying by calling mere allegations “facts”?

It sounds like this is standard fare for how these things are done.  And it answers my question of ttribe earlier where I wondered why lawyers are allowed to present "facts" in a court case that haven't actually be proven to be factual yet.

The lawyers aren't lying (hopefully), they are speaking the language of that arena, where everyone knows what it means (and what it doesn't).

[Teancum]

4 minutes ago, smac97 said:

Meh.  Continue your arbitrary and ad hoc demands about what the Church should due re: its private information, all the while excusing yourself from complying with those demands.

"Rules for thee, but not for me" once again rears its unsightly visage.

Thanks,

-Smac

Once again counselor, I don't manage an investment fund that has billions of $ of assets that has an obligation to disclose such things to the SEC.  But here is what I do disclose.  I hold security licenses.  And I disclose my investments to FINRA.  I disclose if I am a trustee of a trust or an executor of an estate to FINRA.  And I disclose other items on a Form U-4. As required by law.  So there you have it.  I have no reason to disclose my finances to you, or the public.  But the EPA fund of the church did and does.  I am sure you understand the difference but go ahead and continue to be obtuse with your specious argument.

[smac97]

16 minutes ago, Analytics said:

So, are you accusing the SEC of lying by calling mere allegations “facts”?

Sigh.

No.  I am also not accusing a Plaintiff of lying by including a "Statement of Facts" in his Complaint.

Again, your lack of legal training and experience is really showing here.

The "facts" of a case are not established until certain procedural provisions are met.  This can happen in essentially three ways:

Scenario 1: A plaintiff files a complaint that includes factual allegations, and the defendant is properly served with the complaint but does not respond (or else the defendant responds but then later seriously misbehaves, such that the court "strikes," or tosses out, his response).  In that circumstance, the court will take the uncontested allegations as true, and therefore as "facts." 

Scenario 2: A plaintiff files a complaint, and the defendant files a response (and "answer").  The parties then exchange information, conduct discovery, gather evidence, and then one or other (or both) file a dispositive motion, called in most jurisdictions a "motion for summary judgment."  In this motion the moving party presents a "Statement of Facts Not in Dispute," which contains a series of short numbered paragraphs containing factual assertions, each of which is supported by the moving party submitting competent, admissible evidence and citations for such evidences.  The non-moving party then has the chance to present countervailing "facts" and supporting evidence.  If the court finds that there is no "genuine issue of fact," then the court adopts those portions of the moving parties factual findings that it deems necessary (called "Findings of Fact"), and then enunciates the legal conclusions the court has derived from those facts (the "Conclusions of Law").  In this circumstance, the adjudicative body - the trial court - has converted the allegations of fact to findings of fact.

Scenario 3. Same as scenario 2, except that the dispute is hashed out in trial rather than in a motion.

The SEC has presented allegations against the Church and the EPA.  These allegations have only been asserted, not demonstrated.  They have only been published, not proven.  As far as I can tell, there has not been any adjudicative proceeding.  No Due Process.  No impartial weighing of evidence, or findings of fact, or conclusions of law.

Meanwhile, the Church has - per the SEC document - neither admitted nor denied any of the allegations.

That seems to be the state of things.  Again, I get that you really want to stick it to the Church.  You really want to be able to triumphally declare its moral cravenness as established by the SEC.  Alas, however, the SEC's unsubstantiated, untested, unproven say-so will not carry the day.

Thanks,

-Smac

[smac97]

6 minutes ago, bluebell said:

Quote

So, are you accusing the SEC of lying by calling mere allegations “facts”?

It sounds like this is standard fare for how these things are done.  And it answers my question of ttribe earlier where I wondered why lawyers are allowed to present "facts" in a court case that haven't actually be proven to be factual yet.

Lawyers, like doctors and scientists and other professionals working in a complex field, will often of necessity speak in generalizations rather than razor-sharp precision.  Lawyers speak arguendo all the time.  "Your Honor, here are the facts of this case" is shorthand for "Your Honor, here are the facts of this case as alleged by my client and as evaluated by me in my role as an advocate for one side of this dispute."

6 minutes ago, bluebell said:

The lawyers aren't lying (hopefully), they are speaking the language of that arena, where everyone knows what it means (and what it doesn't).

Yep.

Again, I am open to correction as to whether the SEC "Order" constitutes an adjudicative finding.  It sure doesn't look like it.

Thanks,

-Smac