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Church fined by SEC


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3 hours ago, bluebell said:

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

Let’s separate the facts from the allegation. I don’t think the facts are in dispute. The Church separated its funds into separate entities for its own purposes. That is a fact. Each entity complied with reporting requirement. 
 

The allegations are that this was not proper and that the funds should have been reported in the aggregate. The Church, without admitting that the SEC position is correct, agreed to conform to that interpretation of the law.   Not that that interpretation is correct. 
 

The facts are not in dispute. It’s the interpretation of how they should be reported. 

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10 minutes ago, Analytics said:
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No.  A plaintiff filing a complaint will include in it a "Statement of Facts," yet everybody in the process knows that these are facts as alleged by one party in the dispute, that they are intended to be established as "facts" in the future, through the adjudicative process. 

You are making yourself look quite provincial and for the sake of your own credibility, you really ought to stop.

"Will do, Mr. Pot.  Signed, Mr. Kettle."

;) 

10 minutes ago, Analytics said:

An SEC investigation and subsequent order is a completely different animal than the court proceedings you deal with in Utah County.

Well, no.  Due Process still applies.  Rules of evidence still apply.  The presumption of innocence still applies.  The consequences of settlement (as opposed to an adjudication of the dispute) is pretty spot-on. 

10 minutes ago, Analytics said:

Here is what happened.

Here is what you surmise has happened.

10 minutes ago, Analytics said:

The SEC reached out to the Church and said it was concerned with some things and was opening an investigation.

Perhaps so.  Perhaps even likely so.  

10 minutes ago, Analytics said:

The Church responded in the same way all large, sophisticated organizations do: it said that it always endeavors to comply with the law and will cooperate with the investigation completely to clarify any misunderstandings and rectify anything that it had done wrong.

Oh, brother.  Broad generalizations and appeals to stereotypes.  This is how you discerned "what happened."

Got it.  Very credible.

10 minutes ago, Analytics said:

Subsequently there was a long and detailed investigation in which the Church and its attorneys participated.

The Church has acknowledged that it has cooperated and participated in the investigation, so yes.

10 minutes ago, Analytics said:

The SEC kept the Church informed about what it was finding out and the conclusions it was coming to.

Maybe.  Maybe not.  I've seen regulatory agencies be rather astonishingly inept in executing their regulatory duties.

10 minutes ago, Analytics said:

The Church had endless opportunities to respond, and actively participated in the investigation.

Again, the Church has acknowledged that it has cooperated and participated in the investigation.

10 minutes ago, Analytics said:

The SEC sincerely wanted the Church's side of the story so that it could get the facts right, and it did get the Church's side of the story.

I literally laughed when I read this.  For you, anything the Church does is presumptively nefarious and evil, and anything anyone else does as to the Church is per se "sincere" and well-intentioned.

Again, your lack of experience in the law is showing through here.

10 minutes ago, Analytics said:

Throughout the multi-year investigation, the Church had its days (read years), in court.

No.  No.  My goodness.  You've told some real howlers during your time on this board, but this one is merits a hearty guffaw.

No, an "investigation" by a regulatory agency is not a trial.  It does not happen "in court."  I invite you to prove me wrong.  Give me the case number.  Give me the name of the ALJ or the Article III judge or magistrate assigned to the case.  Give me the dates of the hearings and trials.  Show me the final, appealable order.  

Consider this a formal CFR.  You have asserted that the Church has been "in court" in this matter.  I ask that you either substantiate this claim or withdraw it.

Equating an "investigation" with a trial (or being "in court") is inane.  I get that you want this to be a controversy that will "stick," but come on.

“The very word ‘trial’ connotes decisions on the evidence and arguments properly advanced in open court.”  Bridges v. State of Cal., 314 U.S. 252, 271 (1941).  While “[t]he meaning of the term trial can vary,” In re Conservatorship of Joseph W., 199 Cal.App.4th 953, 131 Cal.Rptr.3d 896, 905 (2011), “[n]umerous authorities interpret the term [] broadly ... [and various]  jurisdictions' interpretation of [it] is similarly expansive."  Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012) (citations omitted) (abrogated on other grounds in Frazier v. State, 495 S.W.3d 246 (Tenn. 2016)).  The purposes of trial "are to search for the truth and to apply the law to such matters as are in issue and on trial, to give the parties a fair hearing according to the facts and circumstances properly before the [factfinder], to determine the validity of the allegations, to determine correctly and finally the disputed issues between litigants, and to secure a fair and impartial administration of justice between the parties to the litigation."  88 C.J.S. Trial § 2 (2001) (citations omitted).

As far as I can tell, there has been no "trial."  No "day in court."  No adjudication by an impartial factfinder.  That you are suggesting otherwise, or that an investigation by a regulatory agency of the State is functionally equivalent to a trial, is hard to take seriously.

Imagine a prosecutor filing criminal charges against Mr. Smith.  Mr. Smith cooperates with the investigation both before and after the charges were formally filed against him.  Prior to any trial, however, the prosecutor and Mr. Smith agree to a resolution wherein the charges are dropped and Mr. Smith - with no admission of wrongdoing - pays a fine.  

By your reasoning, the prosecutor would be at liberty to issue a press release saying "By virtue of my office's investigation of Mr. Smith, he has had his day in court (investigation by the State being materially indistinguishable from that pesky 'trial' thingy).  And since he has agreed to pay a fine, the general public can reasonably conclude that he was guilty of the unsubstantiated charges which we asserted against him, and to which he never admitted wrongdoing."

Yeah, that works.

10 minutes ago, Analytics said:

At the end of this long, detailed process where the SEC was in fact the prosecutor, judge, and jury, it came to the conclusions about the facts, and stated those facts in the order.

Utter crapola. Gadzooks, man.  You are just making this stuff up out of thin air.

If the SEC’s Enforcement Division decides to take action following an investigation, the division will file a lawsuit in federal court.  Defendants in SEC lawsuits have the right to be represented by an attorney and to file a response to the SEC’s allegations.  The litigation will proceed through the court system, and a final judgment will be issued by the court.  The Article III judge's decision will be a public record. 

Alternatively, the SEC may pursue an administrative proceeding, in which an ALJ (Administrative Law Judge) is assigned.  The ALJ presides over the case in much the same way a federal court judge does—deciding motions; resolving discovery, evidentiary, and other disputes between the parties; and ultimately presiding over the hearing.  At the hearing, the ALJ considers the evidence presented by the Division as well as any evidence put forth by the respondent, makes credibility determinations, and then issues an initial decision with findings of fact and conclusions of law. The SEC can seek virtually the same sanctions through the administrative proceeding process as it can seek in federal court. 

Neither of these things happened.  There was no action commenced, either before an Article III court or an ALJ.  I feel pretty confident in saying this because the SEC Order was not signed by an ALJ or an Article III judge, but rather by "Vanessa A. Countryman" acting as "Secretary" of the SEC.  Here is her online bio.  Her job duties are described here:

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The Office of the Secretary schedules Commission meetings, administers the Commission's seriatim — the process by which the Commission takes collective action without convening a meeting of the Commissioners — and duty-officer process, and prepares and maintains records of Commission actions. The Office reviews all SEC documents submitted to and approved by the Commission. These include rulemaking releases, SEC enforcement orders and litigation releasesSRO rulemaking notices and orders, as well as other actions taken by SEC staff pursuant to delegated authority. The Office also provides advice to the Commission and the staff on questions of practice and procedure. In addition, it receives and tracks documents filed in administrative proceedings, requests for confidential treatment, and comment letters on rule proposals. The Office is responsible for publishing official documents and releases of Commission actions in the Federal Register and it posts them on the SEC Internet website, www.sec.gov. The Office acts as publisher for the SEC public website related to official Commission actions, such as releases, notices, orders and other matters. The Office also monitors compliance with the Government in the Sunshine Act.

Nothing in there about the SEC acting as "in fact {functioning as} the prosecutor, judge, and jury" (my, you do like throwing out the word "fact" willy-nilly).  The SEC Order further specifically states that it is issued pursuant to "Section 21C of the Securities Exchange Act of 1934."  From that statute:

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Whenever it shall appear to the Commission that any person is engaged or is about to engage in acts or practices constituting a violation of any provision of {SEC rules and regulations} ... it may in its discretion bring an action in the proper district court of the United States, the United States District Court for the District of Columbia, or the United States courts of any territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond.

Again, nothing there about the SEC acting as "in fact {functioning as} the prosecutor, judge, and jury."

The SEC Order states that it "deems it appropriate that cease-and-desist proceedings be, and hereby are, instituted."  Per this article:

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There are four main settlement forms: civil injunction; cease-and-desist order; deferred-prosecution agreement; and nonprosecution agreement.

The civil injunction and the cease-and-desist order are similar in that the settling entity neither admits nor denies the SEC’s allegations and is ordered to refrain from future securities laws violations.
...
Settlement through a cease-and-desist order, on the other hand, does not require adjudication in federal court. Rather, the cease-and-desist proceeding takes place before an administrative law judge, who is a full-time SEC employee, with a right of appeal to the SEC, and from there, to a U.S. court of appeals. Sturc et al., supra, at 15-25. The cease-and-desist settlement document is the order instituting administrative cease-and-desist proceedings, which includes factual findings, violations of law and agreed-upon sanctions.

And per this article (from the SEC) :

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Many different events and sources of information can trigger a Commission investigation: broker-dealer, investment company and investment adviser inspections, which the Commission can conduct without cause and at its discretion; examinations of filings made with the Commission; referrals from NASD (formerly known as the National Association of Securities Dealers), the Exchanges, and other self-regulatory organizations; complaints from members of the public, including issuers and their current or former employees, and anonymous sources; news media; referrals from other government agencies; and other investigations. 

An investigation is not the same as a prosecution.  Investigations involve fact finding by the Commission staff and are usually not public.  In this way, the mere existence of an investigation does not harm an individual or entity.  During an investigation, neither the staff nor the Commission makes any determination of wrongdoing.  If, however, the staff ultimately believes that there has been a violation of the securities laws, it generally will make a recommendation to the Commission to take further action.  The Commission then determines whether to file a public civil lawsuit in court or to institute a public administrative proceeding and whether to accept offers of settlement, if there are any. 

Notably, the Commission's options are 1) "to file a public civil lawsuit in court," or 2) "institute a public administrative proceedings," or 3) "accept offers of settlement."

Here, the Commission took Option 3, which I take as wholly alternative to 1 and 2.  IOW, no "trial."

More:

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If the staff determines that its investigation shows that a violation of the securities laws has occurred, it formulates a recommendation for Commission action.  The staff prepares a comprehensive memorandum discussing, in detail, the facts gathered in the investigation and legal theories that support the recommendation.  Although the memorandum to the Commission is confidential, the staff generally discusses the facts and legal theories supporting its recommendation with opposing counsel prior to making its recommendation.  Absent extraordinary circumstances, such as the need to obtain a temporary restraining order freezing illegal profits or preserving original documents, the staff usually provides potential defendants and respondents an opportunity to respond in writing to the staff's recommendation.  This response, called a Wells submission, is provided to the Commission along with the staff's recommendation and generally contains factual and legal arguments why the Commission should not authorize enforcement action in a given case.  After the staff makes a recommendation, the matter is scheduled for discussion by the Commission at a non-public or "closed" Commission meeting attended only by the Commissioners and the staff. 

The Commission may authorize all or part of the action being recommended by the staff, or it may determine that no action is warranted.  If the Commission determines to institute enforcement proceedings in a given case, it has several options as to the nature of the proceedings that might be brought.  The Commission may bring what is called a civil injunctive action against a person or an entity that it believes has violated the federal securities laws.  This type of enforcement action, which has traditionally been the most frequently employed remedial relief sought by the Commission, is brought before a federal judge and, unless settled, is litigated pursuant to the procedural and evidentiary rules governing federal court litigation.  In an injunctive action, the Commission seeks a court order that compels the defendant to obey the law in the future.  Violating such an order can result in criminal contempt proceedings, which may result in fines, incarceration, or both. 

Huh.  No injunctive action before a federal judge happened here.

More:

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The Commission may also institute administrative proceedings -- proceedings that are litigated before a Commission administrative law judge and that are subject to appeal directly to the Commission and thereafter to a U.S. Court of Appeals.  The Commission, while it acts in a prosecutorial capacity in authorizing the enforcement action, acts in a judicial capacity if it reviews the administrative law judge's initial decision on appeal.  Administrative proceedings provide for a variety of relief, including an order to comply with the law, a censure or a limitation on activities (in the case of a regulated entity or associated person), or a cease and desist order.  With the passage of the Securities Law Enforcement Remedies and Penny Stock Reform Bill of 1990, the Commission was vested with the power to obtain cease and desist orders, an accounting, disgorgement, and civil money penalties in appropriate cases.  The Act enhanced the Commission's powers by enabling the Commission to seek civil money penalties against any person who has violated any provision of the federal securities laws and confirmed a federal court's authority to bar those who have engaged in securities fraud from serving as an officer or director of a public company.  Additionally, the Sarbanes-Oxley Act of 2002 gave the Commission the authority in administrative actions to bar individuals from serving as officers or directors of publicly-held companies. 

AFAICS, there were not "proceedings ... litigated before a Commission administrative law judge."

More from the SEC here:

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How Investigations Work

The Enforcement Division assists the Commission in executing its law enforcement function by recommending the commencement of investigations of securities law violations, by recommending that the Commission bring civil actions in federal court or before an administrative law judge, and by prosecuting these cases on behalf of the Commission. As an adjunct to the SEC's civil enforcement authority, the Division works closely with law enforcement agencies in the U.S. and around the world to bring criminal cases when appropriate.

The Division obtains evidence of possible violations of the securities laws from many sources, including market surveillance activities, investor tips and complaints, other Divisions and Offices of the SEC, the self-regulatory organizations and other securities industry sources, and media reports.

All SEC investigations are conducted privately. Facts are developed to the fullest extent possible through informal inquiry, interviewing witnesses, examining brokerage records, reviewing trading data, and other methods. With a formal order of investigation, the Division's staff may compel witnesses by subpoena to testify and produce books, records, and other relevant documents. Following an investigation, SEC staff present their findings to the Commission for its review. The Commission can authorize the staff to file a case in federal court or bring an administrative action. In many cases, the Commission and the party charged decide to settle a matter without trial.

"Settle a matter without trial."  I think that is what happened here.

From this 2014 article (emphasis added) :

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If the SEC becomes involved in a matter, private plaintiffs can attempt to guard their interests by moving to intervene in the agency’s enforcement actions.336  But as a policy, the agency opposes outside third parties from joining with its cases.337  However, plaintiffs can still benefit from the SEC’s actions in other ways.  For pleading purposes, plaintiffs may rely on inadmissible evidentiary sources “including: confidential witnesses, news articles, analyst reports, government hearing testimony (that was not subject to cross examination), bankruptcy examiner reports, and even anonymous internet postings.”338  SEC complaints are similar to those items in that “there is no dispute that unadjudicated allegations are not evidence and cannot be used to prove facts in a subsequently-filed action, [but] such allegations may represent a source of factual information on which other plaintiffs may reasonably rely at the pleading stage when drafting their own complaints.”339 

Per this 2018 law review article, the SEC has the option to require, or not require, an admission of wrongdoing.  Here, the SEC resolved the matter without requiring any such admission.

Per this 2021 article, "{t}he Securities and Exchange Commission (SEC) plans to return to a policy, requiring companies to admit wrongdoing to settle certain enforcement actions."  

This June 2021 article repeatedly characterizes "no-admit-no-deny" SEC settlements as "unadjudicated."

And so on.

10 minutes ago, Analytics said:

By paying the fine and choosing not to fight this, the Church is implicitly agreeing that the facts are in fact the facts.

That is simply not so.  Your suggestion that the Church "is implicitly agreeing" contradicts the plain text of the Order: "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, Respondents consent to the entry of this Order..."

Again, I know you really want to be able to make claims about "facts" arising out of this matter, but it's not working. 

10 minutes ago, Analytics said:

It's somewhere between a guilty plea and a no-contest plea.

Oi.  You're just making this up as you go along.

"No-admit-no-deny" settlements are an alternative to settlements that require admission of wrongdoing.  

10 minutes ago, Analytics said:

The SEC order isn't a plaintiff making an allegation--it is the judge ruling on what actually happened, and the defendant deciding to take its lumps, accept the verdict, and not appeal. 

Nope.  You are making this up as you go along.

10 minutes ago, Analytics said:

Yes, they threw the Church a bone by allowing it to pay the fine without admitting or denying any wrongdoing,

Again, I laughed when I read this.

Analytics: "{T}he Church is implicitly agreeing that the facts are in fact the facts."

Also Analytics: "Yes, they threw the Church a bone by allowing it to pay the fine without admitting or denying any wrongdoing..."

Make up your mind, son...

10 minutes ago, Analytics said:

but that is just a convenience the SEC gives guilty parties so that they can save some face and put the matter to rest amicably. 

You presuppose that which has yet to be demonstrated: guilt.  That's not the way our legal system works.

Thanks,

-Smac

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12 hours ago, SeekingUnderstanding said:

All of the details contained in the SEC order must have come from the church as there is no other way for the SEC to have obtained the information.

Couldn’t a disgruntled employee have lied about what happened?  Not saying there was anyone, my guess is this all happened, but the SEC had cases that went to court and were dismissed and that might have been not because they didn’t have enough claims of fact to explain things, but because claims they made were wrong. 
 

In reading the lawsuit complaint against the Church in the Adams confidentiality case, the lawyer filled in a lot of details making claims of fact that did not match how wards work, claims of witnesses and a few other things. If one wasn’t aware of how church structure works, it would seem very reasonable. It makes sense why they structure their argument that way, filling in the gaps as they did based on logic, in a way that favored their claims.  But they apparently choose to trust someone who said she was a member of the ward, but whose claims don’t fully add up. Sounds to me she inflated her position and made her claims a bit more colorful than reality.   And the law officer who reported his conversation with the bishop appeared to have misunderstood some of the bishop’s comments and so his witness was inaccurate in some ways.  So while it looks like a strong case from first glance, enough inconsistencies show up enough it makes their story less credible. 

As I understand it, the claim is being made here the Church contributed to the explanation of the charges as much as the SEC and thus would have corrected any errors within them. Can some documentation be provided this is the way it happens and it is not the usual prosecution construction of the strongest case possible by their choice of what facts (as they believe them to be) to present and what not to, a process that does not involve the defense helping put the charges together, please?  This is a Request For Reference out to anyone who might have this info.

PS:  I am going to try and find the charges in a case that the SEC lost and see if they read anything like what is in this one. Added:  posted below 

Edited by Calm
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2 hours ago, Analytics said:

At the end of this long, detailed process where the SEC was in fact the prosecutor, judge, and jury, it came to the conclusions about the facts, and stated those facts in the order. By paying the fine and choosing not to fight this, the Church is implicitly agreeing that the facts are in fact the facts. It's somewhere between a guilty plea and a no-contest plea. The SEC order isn't a plaintiff making an allegation--it is the judge ruling on what actually happened, and the defendant deciding to take its lumps, accept the verdict, and not appeal. 

Yes, they threw the Church a bone by allowing it to pay the fine without admitting or denying any wrongdoing, but that is just a convenience the SEC gives guilty parties so that they can save some face and put the matter to rest amicably. 

Just being a little snarky, but your comment is implicitly saying that innocent people never take a plea, and/or government agents never abuse their position. 

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2 hours ago, SeekingUnderstanding said:
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Your lack of legal training and experience is showing here.

Exactly how many cases have you worked on that involve government agencies? I’ve done three. Now your turn. 

Let's see.  I think I've done three with DOPL (Department of Professional Licensing), two with the Utah Labor Commission, one with "United States" acting on behalf of DHHS and its subsidiaries, perhaps two dozen criminal matters involving prosecutors, the Office of Professional Conduct, one with DHRM (Department of Human Resource Management).  Those are the ones that come to mind.

2 hours ago, SeekingUnderstanding said:

ETA: In each consent decree, each of which takes years to negotiate with language approved by both parties, there were facts.

And yet the SEC is somewhat unique with its "no-admit-no-deny" approach to settlement (see above).

And again, why are you calling the SEC Order a "consent decree"?  Where you getting that?

2 hours ago, SeekingUnderstanding said:

Facts which were not disputed.

But here, the facts were neither admitted to nor denied.  Explicitly so.  It's right there in the text.

2 hours ago, SeekingUnderstanding said:

And then there were violations.

Yes, well, alleged violations are usually the basis action by the state.

2 hours ago, SeekingUnderstanding said:

The violations were disagreements. The EPA interpreted the facts as violations of the clean air act and the company disagreed. Despite that each contained language like “without the adjudication or admission of any issue of fact or law except as provided in Section II (Jurisdiction and Venue),”

I'm sorry, but you are just wrong on this.  And you don't have to take my word for it.  The SEC can require, or not require, an admission of wrongdoing as a condition of settlement.  Here, no such condition was imposed on the Church.

Thanks,

-Smac

Edited by smac97
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11 minutes ago, Calm said:

Couldn’t a disgruntled employee have lied about what happened?  Not saying there was anyone, my guess of this all happened, but the SEC had cases that went to court and were dismissed and that might have been not because they didn’t have enough claims of fact to explain things, but because claims they made were wrong. 

https://www.nytimes.com/1994/02/09/business/a-500000-apology-from-the-irs.html

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34 minutes ago, JustAnAustralian said:

Isn't that a matter of enforcement though? If the SEC decided they wouldn't go after religion-linked organisations, would it suddenly be ok?

Likewise (@Analytics), if cops decided to give tickets to everyone going 1 mile over the speed limit would that make speeding no longer a minor infraction?

(I've actually been given a speeding ticket for going 4 miles over the speed limit.  Cop was not a nice person.  I know of a town in wyoming that will always give you a ticket if you go over the posted limited any amount.  Even if you are almost too a new limit sign where the speed increases.  They are notorious.  They are the poster child for never speeding out of state because the tourists get demolished)

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https://www.wiggin.com/publication/sec-loses-insider-trading-case-court-distressed-by-counsels-conduct/
 

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Despite the existence of several key uncontested facts that implied the existence of an insider-trading scheme, the SEC’s counsel apparently could not resist finessing their allegations in what they likely believed to be an exercise in persuasion. The court described the SEC’s actions – the most egregious of which are discussed below – as “playing fast and loose with the facts” and stated that counsel’s “pattern of misquoting an opponent and misrepresenting facts and law is especially distressing.”

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All of these cases have something in common beyond the tribunal’s harsh words for the positions or tactics taken by the SEC. The SEC lost every one of these cases, and these are far from the only losses sustained by the agency in recent years. For an agency that carefully reviews the cases it selects for prosecution, such results can be disastrous. 

One clear message arises from this spate of Commission losses: Challenging the SEC can pay off. Of course, only those defendants with the necessary funds may be able to exonerate themselves, a troubling fact in itself. 

Despite the SEC’s setbacks in Heartland Advisors and beyond, the SEC can be expected to vigorously pursue its enforcement agenda. Indeed, while the Heartland court dismissed the insider-trading charges in that case, other securities fraud charges remain against Nasgovitz, Heartland Advisors, and seven current and former Heartland Advisors officers and employees. Presumably, those charges will receive careful scrutiny from a judge already troubled by the Commission’s tactics. Regardless of the outcome in Heartland Advisors, however, litigants should be emboldened by the SEC’s courtroom missteps.

Here is the press release issued by the SEC for one of the cases above

https://www.sec.gov/news/press/2003-171.htm

More detail info in links at bottom
An additional thought…

The Church has agreed to settlement before when the judge was requiring them to share information they didn’t want to. Could this be a case they agreed to settle because they didn’t want to put in the public record how they handled assets, how much all they had, etc?

Edited by Calm
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21 minutes ago, provoman said:

Just being a little snarky, but your comment is implicitly saying that innocent people never take a plea, and/or government agents never abuse their position. 

Oh, Provoman, you cynic, you!

Didn't you see Analytics' declaration of how sincere the SEC was ("The SEC sincerely wanted the Church's side of the story...")?  How, then, could you possibly suggest that agents of the State - particularly the Administrative State - could ever "abuse their position{s}"?

Surely all federal bureaucracies are likewise benevolent, honest, generous, and loving?

;) 

Thanks,

-Smac

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2 minutes ago, Calm said:

as “playing fast and loose with the facts” and stated that counsel’s “pattern of misquoting an opponent and misrepresenting facts and law is especially distressing.”

OUCH. Judge dropped the gavel on that counsel's career.

 

15 minutes ago, bsjkki said:

From the comments. Does anyone have this book and the full context of this? I can see the church having good intentions not executed properly. 

That's pretty interesting. Might be one of the reasons they acted as they did. 

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2 hours ago, SeekingUnderstanding said:

I had the opportunity to work on a few consent decrees with the EPA and this is the exact process. 

A "consent decree" is as follows:

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A consent decree (also known as a consent order) is a decree made by a judge with the consent of all parties. It is not strictly a judgment, but rather a settlement agreement approved by the court. The agreement is submitted to the court in writing after the parties have reached a settlement, and once approved by the judge, the agreement is binding and enforceable on both parties. A consent decree is not appealable, except that it can be set aside by the court for fraud on the part of one party, or for error on the part of both parties.  

A consent decree is also often used in government regulation in areas such as antitrust, securities, and environmental law. When the government sues a person or company and the defendant agrees to stop its illegal conduct, the government may agree not to pursue the case, and the court approves and issues a consent decree.

Are you suggesting that the SEC Order in this case is some sort of "consent decree"?  If so, which judge signed off on it?  What was his/her name?  Was it an Article III judge, or an ALJ?  When did this sign-off happen?  What evidence is there for it?

Thanks,

-Smac

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2 hours ago, bsjkki said:

From the comments. Does anyone have this book and the full context of this? I can see the church having good intentions not executed properly. 

5EB6FAB6-BE49-4CAF-9A61-5F1123DA88C6.jpeg

Editing for length and because I'm not sure how much you are allowed to quote.  


"An important one" (quiet moment of instruction) "came in the fall of 1987, during a meeting of the Investment Committee of the Church, which included the First Presidency and President Hunter. Hal and the Bishopric’s team of investment professionals had just concluded a presentation of their current investment positions and strategy for the future. It was a great time to be in the financial markets...

"Like the majority of professional investment managers, Hal and his team saw little reason to doubt the sustainability of this beneficial trend. Inflation was relatively low, and government spending wasn’t the only source of economic vitality: businesses were also doing well. From a long-term historical perspective, the growth seemed overdue, barely enough to compensate for the preceding twenty years of economic stagnation. 
   
"Hal had been paying the price to have an expert’s opinion about the market and its future. The Church had become a large enough investor that representatives of the major investment banks regularly visited Salt Lake City... Hal and his team likewise traveled widely in search of the best available market information. 

"Given his hard-earned expertise, Hal might have been tempted to ignore a conversation that the Brethren conducted among themselves after his team’s presentation, which had advocated a steady course designed to make the most of the market’s growth. As though Hal and his group weren’t present, President Hunter turned to his brethren and said, “I’ve got a feeling that stock prices are little high.” Presidents Benson and Hinckley concurred, citing similar feelings. Yet the conversation seemed to be a private one. The Brethren concluded the meeting without giving any specific instructions. 
   
"Hal immediately reassembled his team back in his office and asked, “Did you hear that? The Brethren are concerned. Should we be?” Hal’s team responded affirmatively to his rhetorical question. They began to discuss a strategy for selling stocks to capture the gains of the past eighteen months and limit the Church’s downside investment risk. But the team recognized a problem: the Church’s holdings were so substantial that selling large blocks of stock quickly could “move the market,” overwhelming the normal demand from buyers. They agreed to begin selling steadily in small amounts that wouldn’t have a price-depressing effect. The move out of the market didn’t make sense in purely rational terms, but Hal and his colleagues decided to pick prophecy over rationality.” 

 “I Will Lead You Along: The Life of Henry B. Eyring” by Henry J. Eyring, Robert I. Eaton 
 

Edited by Rain
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1 hour ago, bluebell said:

Likewise (@Analytics), if cops decided to give tickets to everyone going 1 mile over the speed limit would that make speeding no longer a minor infraction?

(I've actually been given a speeding ticket for going 4 miles over the speed limit.  Cop was not a nice person.  I know of a town in wyoming that will always give you a ticket if you go over the posted limited any amount.  Even if you are almost too a new limit sign where the speed increases.  They are notorious.  They are the poster child for never speeding out of state because the tourists get demolished)

Name that town! I travel through Wyoming frequently. Some towns use tickets as a major source of income.

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1 hour ago, bsjkki said:

Name that town! I travel through Wyoming frequently. Some towns use tickets as a major source of income.

Name THAT town? I love Wyoming, but there are literally dozens of small towns in that State that use tickets as a major source of income. Be careful if you decide to drive anywhere in Wyoming. 

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4 hours ago, Peppermint Patty said:

Name THAT town? I love Wyoming, but there are literally dozens of small towns in that State that use tickets as a major source of income. Be careful if you decide to drive anywhere in Wyoming. 

I was born in Wyoming, and this is all probably true; however, last year as I was driving on I-80 in South Central Wyoming, my mind was focused on getting home (to Oklahoma) as quickly as possible to see my ailing 90+ year-old parents.  My speed inched up without my even noticing it...when what to my wondering eyes should appear...?

Yep.  A cheerful man with red and blue lights flashing.  I apologized immediately to the HP officer.  He asked me where I was headed, and I told him "home to Oklahoma to see my parents."  He looked at me, he looked at my license and he glanced at my registration information.  He handed it all back, and said:  "Try to keep it under the speed limit.  And remember, the closer you get to Laramie, the more likely it is that you'll run into snow and ice -- so please be careful.  I don't want to have to come and pull you out of the barrow pit...or worse." 

I drove on, very grateful and much chastened.  I reached Oklahoma safe and sound and happy to greet both parents much improved.

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11 hours ago, Analytics said:

You are making yourself look quite provincial and for the sake of your own credibility, you really ought to stop. An SEC investigation and subsequent order is a completely different animal than the court proceedings you deal with in Utah County.

Here is what happened. The SEC reached out to the Church and said it was concerned with some things and was opening an investigation. The Church responded in the same way all large, sophisticated organizations do: it said that it always endeavors to comply with the law and will cooperate with the investigation completely to clarify any misunderstandings and rectify anything that it had done wrong. Subsequently there was a long and detailed investigation in which the Church and its attorneys participated. The SEC kept the Church informed about what it was finding out and the conclusions it was coming to. The Church had endless opportunities to respond, and actively participated in the investigation. The SEC sincerely wanted the Church's side of the story so that it could get the facts right, and it did get the Church's side of the story. Throughout the multi-year investigation, the Church had its days (read years), in court.

At the end of this long, detailed process where the SEC was in fact the prosecutor, judge, and jury, it came to the conclusions about the facts, and stated those facts in the order. By paying the fine and choosing not to fight this, the Church is implicitly agreeing that the facts are in fact the facts. It's somewhere between a guilty plea and a no-contest plea. The SEC order isn't a plaintiff making an allegation--it is the judge ruling on what actually happened, and the defendant deciding to take its lumps, accept the verdict, and not appeal. 

Yes, they threw the Church a bone by allowing it to pay the fine without admitting or denying any wrongdoing, but that is just a convenience the SEC gives guilty parties so that they can save some face and put the matter to rest amicably. 

Lots of personal interpretation here. I'd bold them but I'm on my phone. Your post is a perception and an opinion of the process and its meaning to you, along with the others that are given room on this thread. I'm sure smac will reply accordingly and with greater specificity.

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5 hours ago, Peppermint Patty said:

Name THAT town? I love Wyoming, but there are literally dozens of small towns in that State that use tickets as a major source of income. Be careful if you decide to drive anywhere in Wyoming. 

Very true. To be fair to Bryon they do have a sign before entering town warning people the speed limit is strictly enforced.  But some take the risk anyway. 

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1 hour ago, Okrahomer said:

I was born in Wyoming, and this is all probably true; however, last year as I was driving on I-80 in South Central Wyoming, my mind was focused on getting home (to Oklahoma) as quickly as possible to see my ailing 90+ year-old parents.  My speed inched up without my even noticing it...when what to my wondering eyes should appear...?

Yep.  A cheerful man with red and blue lights flashing.  I apologized immediately to the HP officer.  He asked me where I was headed, and I told him "home to Oklahoma to see my parents."  He looked at me, he looked at my license and he glanced at my registration information.  He handed it all back, and said:  "Try to keep it under the speed limit.  And remember, the closer you get to Laramie, the more likely it is that you'll run into snow and ice -- so please be careful.  I don't want to have to come and pull you out of the barrow pit...or worse." 

I drove on, very grateful and much chastened.  I reached Oklahoma safe and sound and happy to greet both parents much improved.

I am from Wyoming too (northern Wyoming, by Yellowstone, so I don’t have a lot of experience with the southern part of the state), and I’ve been pulled over a few times since my driving career started, along with different members of my family. The majority of time you won’t get a ticket unless you’re really breaking the law. But it’s the small towns you have to watch out for. They need the revenue, and plus they have a full-time cop with pretty much nothing to do except sit on the road all day long.

Just goes to show that enforcement of speeding is not the same everywhere, and some agencies see it as a bigger infraction than others. 😊

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10 hours ago, smac97 said:

Well, no.  Due Process still applies.  Rules of evidence still apply.  The presumption of innocence still applies.  The consequences of settlement (as opposed to an adjudication of the dispute) is pretty spot-on. 

And yet the "facts" laid out by the SEC after the Church fully cooperated have not been disputed by anyone. In other words, they are undisputed facts.

10 hours ago, smac97 said:

I literally laughed when I read this.  For you, anything the Church does is presumptively nefarious and evil, and anything anyone else does as to the Church is per se "sincere" and well-intentioned.

I never said nor implied nor thought that "anything the Church does is presumptively nefarious and evil." And me suggesting that the Feds sincerely want to get it right literally makes you laugh? Man, you are cynical.

10 hours ago, smac97 said:

Consider this a formal CFR.  You have asserted that the Church has been "in court" in this matter.  I ask that you either substantiate this claim or withdraw it.

Let's be clear what we are talking about. We are talking about whether the undisputed facts in the SEC Order are really true or not. The literally undisputed facts. I think they are true, and you think they are mere unsubstantiated allegations that can't be considered factual because the dispute was settled without a trial. Your whole point here is a red herring.

When I said the Church "had its day it court" I was metaphorically speaking about the settlement negotiations and the opportunity the Church was given to read and comment on a draft version of the Order. If there would have been a factual misrepresentation in the Order, the Church's lawyers would have said something to the effect, "We're confident that we can reach a fair settlement here that will be acceptable to both parties. And we can both agree that it would be embarrassing for the SEC to publish as 'facts' things that aren't really true, so before we put this behind us and pay the fine, let's work together to make sure your report is accurate."

In that situation, the Feds would have carefully listened to any concerns the Church had about misstated facts. Presuming the Church didn't want any "misstatements" in the public record on what really happened, the objectives of the Church and the SEC were totally aligned here. And given the cut-and-dry nature of the "alleged" facts of this case, it's hard to imagine how misstatements could have made it into the final report after it was fact-checked a dozen times by the SEC and by the Church that was cooperating with them.

That process happened. By making minimal assumptions about the competency of the Church's attorneys and the good-faith of the SEC, it has implications about how confident we can be that the undisputed facts really are true.

Edited by Analytics
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Some liken what happened, to secret combinations in the Book of Mormon. I guess the leaders may need to rethink a rainy day fund. No more telling members to pay tithing first. Members for so long are told to be self reliant, but then are told the church can help them with their bills and is an oxymoron. 

May be an image of text

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7 minutes ago, Tacenda said:

Some liken what happened, to secret combinations in the Book of Mormon. I guess the leaders may need to rethink a rainy day fund. No more telling members to pay tithing first. Members for so long are told to be self reliant, but then are told the church can help them with their bills and is an oxymoron. 

May be an image of text

That quote is so dumb. 

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19 minutes ago, Analytics said:

When I said the Church "had its day it court" I was metaphorically speaking about the settlement negotiations and the opportunity the Church was given to read and comment on a draft version of the Order. If there would have been a factual misrepresentation in the Order, the Church's lawyers would have said something to the effect, "We're confident that we can reach a fair settlement here that will be acceptable to both parties. And we can both agree that it would be embarrassing for the SEC to publish as 'facts' things that aren't really true, so before we put this behind us and pay the fine, let's work together to make sure your report is accurate."

In that situation, the Feds would have carefully listened to any concerns the Church had about misstated facts. Presuming the Church didn't want any "misstatements" in the public record on what really happened, the objectives of the Church and the SEC were totally aligned here. And given the cut-and-dry nature of the "alleged" facts of this case, it's hard to imagine how misstatements could have made it into the final report after it was fact-checked a dozen times by the SEC and by the Church that was cooperating with them.

From my experience assisting clients with SEC matters early in my career, I wouldn't be surprised if a draft of this document went back and forth several times between the Church's attorneys and the SEC.

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