Church fined by SEC

[CV75]

49 minutes ago, Nofear said:

And for all this the Church got its hand slapped and asked to fix things.

Is there any post 2019 behavior that remains potentially problematic?

Basing the assessment on this instance, I think we'll have to patiently wait until 2041 to ascertain that. So, it must be really, really important.

[ttribe]

Just now, jkwilliams said:

I can’t help it. It’s just who I am. 

Well, it's who I'm told I am, so who am I to argue?

[ttribe]

1 minute ago, Ferdinand55 said:

This conversation could probably benefit from an adherence to Hanlons's razor.

Ahh, so instead of malicious, the critics are just plain stupid. I feel so much better now.

[Ferdinand55]

5 minutes ago, ttribe said:

Ahh, so instead of malicious, the critics are just plain stupid. I feel so much better now.

Why do you assume I was intending the razor only be applied to critics?

I think the spirit of the razor is that "maliciousness" be assumed last, after lack of knowledge, lack of caution, lack of grace, and yes, occasionally stupidity.

Edited February 24, 2023 by Ferdinand55

[jkwilliams]

2 minutes ago, ttribe said:

Well, it's who I'm told I am, so who am I to argue?

I still remember plotting our malicious campaign over pizza in Provo all those years ago. I recognized in you a bitter, hostile, kindred spirit.

[ttribe]

3 minutes ago, Ferdinand55 said:

Why do you assume I was intending the razor only be applied to critics?

Maybe because we're the only ones being called malicious?

[smac97]

46 minutes ago, ttribe said:

Ahh, so instead of malicious, the critics are just plain stupid. I feel so much better now.

I think he intends to use Hanlon's Razor to explain the Church's behavior in this matter.

Thanks,

-Smac

[smac97]

41 minutes ago, ttribe said:

Maybe because we're the only ones being called malicious?

Oh, my.  Do I really need to go through the 36 pages of this thread and compile all the deprecatory remarks aimed at the Church?

Thanks,

-Smac

[ttribe]

50 minutes ago, smac97 said:

I think he intends to use Hanlon's Razor to explain the Church's behavior in this matter.

Thanks,

-Smac

Ahhhh, got it. I misunderstood. 

[ttribe]

50 minutes ago, smac97 said:

Oh, my.  Do I really need to go through the 36 pages of this thread and compile all the deprecatory remarks aimed at the Church?

Thanks,

-Smac

I think you've made your point about how victimized you believe the Church to be.

[Analytics]

21 hours ago, smac97 said:

Courts of law operate in "the real world."  

Sorry. I meant to say "this is the part of the real world outside the courts, not inside." 

21 hours ago, smac97 said:

You are also not entitled to say that the SEC's untested, unproven, unsubstantiated allegations are "facts" in any legal sense.  

Nor did I ever claim they were "facts" in any legal sense.

21 hours ago, smac97 said:

"Benefit of the doubt," perhaps.

Boy, that sounds quite a bit like . . . Due Process, just less formal.

And that is also exactly what I've been trying to do here.

21 hours ago, smac97 said:

In an informal "real world" context, I think that normally takes the form of "benefit of the doubt," that is, to "to believe something good about someone, rather than something bad, when you have the possibility of doing either."  I think this is, or ought to be, the starting point, the default presumption.

Would you also grant that same default presumption of basic honesty and professionalism to the public servants who work at the SEC?

21 hours ago, smac97 said:

In contrast, I think your starting point is to very adverse and deprecatory.  I have spent many years reading your posts, and they are overwhelmingly negative and hostile. No "benefit of the doubt."  Quite the contrary.  I think you see the Church (and its leaders) as presumptively dishonest, corrupt.  As substantively and predominantly bad.  I think that's your starting point. 

Your ad hominem attacks on my thoughts, motives, and character are both irrelevant and false.

21 hours ago, smac97 said:

So I don't see a symmetry in our biases.  My presumption, my starting point, is benevolent toward the Church.  I give the benefit of the doubt to the Church, to its leaders, to its members, to its defenders.

Why don't you give the same benefit of the doubt to the SEC and to the public servants who work there?

21 hours ago, smac97 said:

Huh.  Okay.  A few questions then:

• 1. How are you discerning "intent?"  Have you researched the legislative history behind the text?  Or is this just sheer guesswork on your part?
• 2. I assume by "the intent of the statutory text" you mean legislative intent, right?  The intent of the authors of the text?  
• 3. Are you familiar with how and why lawyers examine legislative intent?  Here is a good synopsis (from my friend, Chat GPT) :

• 5. Are you familiar with the limitations on "legislative intent"-style arguments (which is what you seem to be presenting)?  Again from Chat GPT:

Of the above-numbered items, I think the first one is most pertinent here: "If the language of the statute is unambiguous and the plain meaning of the text is clear, then relying on legislative intent arguments may be inappropriate. Courts generally give priority to the plain meaning of the text over legislative history unless the language of the statute is ambiguous or leads to an absurd result."

• 6. "Legislative intent" arguments pretty much always fail when they are used to attempt to vary from the "plain language" of the statute.  That is what you seem to be trying to do.  So how do you reconcile "actual investment discretion" with the statutory language (in bold) :

"Actual investment discretion" is a gloss.  Yours.  It's not in the text.  Moreover, your gloss about "intent" of the statutory text ("the intent of the statutory text in question is to have managers with actual investment discretion sign the reports") seems incompatible with the actual statutory text, which speaks of a person "exercis{ing} 'investment discretion'" by, inter alia, making "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."

• 7. Do you see any conflict between your surmise about "actual investment discretion" and the statutory text above ("even though some other person may have responsibility for such investment decisions")? 

I see a possible/apparent conflict.  The statute says nothing about "actual investment discretion."  To the contrary, the statute seems to allow "some other person {that the person with vested 'investment discretion'}" to "have responsibility for such investment decisions."  

• 8. Do you see any material difference between the phrases "investment discretion" and "sole investment discretion"?  If so, what is/are the difference(s)? 

I do see a material difference.  The statute says nothing about "sole investment discretion."  In fact, that phrase seems to contradict the actual statutory text, which allows "some other person {that the person with vested 'investment discretion'}" to "have responsibility for such investment decisions."  

• 9. Do you see any contradiction between "sole investment discretion" as referenced in the SEC Order and "investment discretion" as defined in the actual statutory text (particularly the provision allowing "some other person {that the person with vested 'investment discretion'}" to "have responsibility for such investment decisions")?

I think there may be a contradiction.  See above.  And the contradiction may be rather important when examining what the Church did, whether the legal advice it received was warranted, etc.

When analyzing a statute in a legal setting, you do better by taking a more clinical, rather than emotional/invective approach, as you do here.  I would recommend that you avoid larding up your analysis with risible or conclusory terminology ("the only reason...," "tricky scheme," ... "get around the clear intent and meaning...").

Set aside, for the moment, what you think (based on the SEC Order) actually happened, and let's instead focus on what the statute states.  In the end it is the statutory text that is determinative.  Statutory language is usually applied by an impartial factfinder, which you obviously are not, but at least give it a college try.

Take a look at paragraph 11(b)(vi) of the "General Instructions" for 13F forms.  Please note how it differentiates "sole investment discretion" (subpart (b)(vi)(A)) from "shared-defined" discretion (subpart (b)(vi)(B)) and from "shared-other" discretion (subpart (b)(vi)(B)).  This comes into play in the 13F Form, which includes a spreadsheet (an "Information Table"), and which spreadsheet includes a "Column 8," and which column is supposed to show the type of "Voting Author{ity}," which the SEC splits into three categories: "sole" or "shared-defined" or "shared-other."

I think this is probably what gave the SEC heartburn over the LLCs' 13F forms.  From paragraph 27 of the SEC Order:

From this I surmise that the "Information Table" in the submitted 13F Forms showed the "Voting Authority" as being "sole" rather than "shared-defined" or "shared-other."

I further surmise that the SEC deemed these disclosures about "Voting Authority" to be incorrect because  - per paragraph 27, "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."  I can see that.  But I also see a few potential problems with it.  The statutory text does not reference or require "sole investment discretion."  The statutory text, instead, seems to allow for one party to be designated as having "investment discretion" even when "even though some other person may have responsibility for such investment decisions."  (Yes, that seems counterintuitive, but welcome to the world of federal legislation!)

The current guidance from the SEC does a pretty good job of explaining how to fill out Column 8 in the 13F Form's Information Table:

The above guidance (Question 46) is shown as being "updated" as of January 3, 2023.  I also see it in this book published in 2019, and in this article published in 2012 (referencing it being on the SEC website).

The reporting strategy in question here, though, was formulated in the late 90s and implemented in 2003. So that yields some questions for me:

• Was the foregoing guidance in effect back then?  I don't know.  We do not have enough information at present.
• Was the foregoing guidance even in existence back then?  I don't know.  We do not have enough information at present.
• Was the SEC's differentiation between "sole" and "shared-defined" or "shared-other" in existence back then?  I don't know.  We do not have enough information at present.
• Were attorneys maintaining oversight and monitoring of how the LLCs were filling out Column 8 of the Information Table portion of the 13F Form?  I don't know.  We do not have enough information at present.
• Should attorneys and EPA been paying more attention to this issue?  Yes.  

Thank you for the law school lesson. Rather than diving into that level of detail at the moment, allow me to ask you a few Socratic questions.

The actual law says: 

Every institutional investment manager which exercises investment discretion with respect to accounts holding section 13(f) securities, as defined in paragraph (c) of this  section, having an aggregate fair market value on the last trading day of any month of any calendar year of at least $100,000,000 shall  file a report on Form 13F (§ 249.325of this chapter) with the Commission within 45 days after the last day of such calendar year and within 45 days after the last day of each of the first three calendar quarters of the subsequent calendar year.

https://www.law.cornell.edu/cfr/text/17/240.13f-1

Say I was an investment manager with a cool $180,000,000 in assets, and for my own personal reasons, really, really didn't want to file Form 13F and disclose my assets to the world. Almost all investment managers feel this way, BTW.

Say I call up you and ask your legal advice on a way I could manage all of these assets and legally not file. Here is my scheme:

1. Set up two LLC's, and have a couple of my empoloyees be the "Manager" of each of them.
2. Give each manager "investment discretion" to manage $90,000,000 of the aggregate portfolio.
3. Have each of them use their "investment discretion" to delegate management back to me.
4. Since these two "Managers" of the two LLC's each manage less than $100,000,000 of assets, we don't need to fileForm 13F

In your opinion, would this scheme comply with the letter of the law? Does it comply with the spirit of the law?

21 hours ago, smac97 said:

Fairminded folks might be able and willing to give the Church the benefit of the doubt.

As a self-described fair-minded folk, why do you refuse to give the public servants at the SEC the benefit of the doubt regarding whether their alleged "facts" are an accurate description of what happened? Is this an example of you being hypocritically guilty of "for me but not for thee"?

Edited February 25, 2023 by Analytics

[Ryan Dahle]

19 minutes ago, ttribe said:

1 hour ago, smac97 said:

Oh, my.  Do I really need to go through the 36 pages of this thread and compile all the deprecatory remarks aimed at the Church?

Thanks,

-Smac

I think you've made your point about how victimized you believe the Church to be.

The ideology held by some commentators on this board leads them to frequently seek to expose, articulate, or otherwise expound upon the alleged failings of The Church of Jesus Christ of Latter-day Saints, including its leaders, history, doctrine, and other tenets that are often held dear by many other posters on this forum. That isn't to say that nothing negative is ever said about the so-called critics of the Church, but most conversations are oriented towards the veracity and moral integrity of the Church and its teachings, whereas the things that "critics" end up feeling a need to defend are usually just their criticisms themselves (or the worldview and choices that have led them to a different perspective about the Church). 

I'm not saying this is a bad thing. This clash of opinions is inevitable and sort of what this forum is for. And the asymmetry is to be expected. But those who are generally inclined to fault the Church may want to think about how it might feel, emotionally and intellectually, to be in the shoes of those who still believe the Church is what it claims to be and who still hold its leaders in high esteem, and who still feel it is not only a good, but really a core source of purpose and meaning in their lives. It is not easy to face a nearly constant barrage of criticism (of varying types and degrees of justification) and not assume that those involved in such persistent critiques might not have some desire to tear down something you love. In other words, it may feel a lot like malice towards the Church, in the sense that those critiquing it would like to see it fail or fundamentally reform it to the extent that it would be mostly unrecognizable. 

We are all freely engaging in this dialogue, so its not like anyone is being exposed to these criticisms against their will. But it is something to think about. 

[jkwilliams]

5 minutes ago, Ryan Dahle said:

The ideology held by some commentators on this board leads them to frequently seek to expose, articulate, or otherwise expound upon the alleged failings of The Church of Jesus Christ of Latter-day Saints, including its leaders, history, doctrine, and other tenets that are often held dear by many other posters on this forum. That isn't to say that nothing negative is ever said about the so-called critics of the Church, but most conversations are oriented towards the veracity and moral integrity of the Church and its teachings, whereas the things that "critics" end up feeling a need to defend are usually just their criticisms themselves (or the worldview and choices that have led them to a different perspective about the Church). 

I'm not saying this is a bad thing. This clash of opinions is inevitable and sort of what this forum is for. And the asymmetry is to be expected. But those who are generally inclined to fault the Church may want to think about how it might feel, emotionally and intellectually, to be in the shoes of those who still believe the Church is what it claims to be and who still hold its leaders in high esteem, and who still feel it is not only a good, but really a core source of purpose and meaning in their lives. It is not easy to face a nearly constant barrage of criticism (of varying types and degrees of justification) and not assume that those involved in such persistent critiques might not have some desire to tear down something you love. In other words, it may feel a lot like malice towards the Church, in the sense that those critiquing it would like to see it fail or fundamentally reform it to the extent that it would be mostly unrecognizable. 

We are all freely engaging in this dialogue, so its not like anyone is being exposed to these criticisms against their will. But it is something to think about. 

You assume we don’t know what it’s like to be in your shoes. I think Teancum, ttribe, and I know exactly what that’s like. For me, the key is not making things personal, though often people seem to take criticism of the church as an attack on them personally. I try, anyway, to speak my mind without being offensive. Sometimes I fail. 

[ttribe]

15 minutes ago, Ryan Dahle said:

The ideology held by some commentators on this board leads them to frequently seek to expose, articulate, or otherwise expound upon the alleged failings of The Church of Jesus Christ of Latter-day Saints, including its leaders, history, doctrine, and other tenets that are often held dear by many other posters on this forum. That isn't to say that nothing negative is ever said about the so-called critics of the Church, but most conversations are oriented towards the veracity and moral integrity of the Church and its teachings, whereas the things that "critics" end up feeling a need to defend are usually just their criticisms themselves (or the worldview and choices that have led them to a different perspective about the Church). 

I'm not saying this is a bad thing. This clash of opinions is inevitable and sort of what this forum is for. And the asymmetry is to be expected. But those who are generally inclined to fault the Church may want to think about how it might feel, emotionally and intellectually, to be in the shoes of those who still believe the Church is what it claims to be and who still hold its leaders in high esteem, and who still feel it is not only a good, but really a core source of purpose and meaning in their lives. It is not easy to face a nearly constant barrage of criticism (of varying types and degrees of justification) and not assume that those involved in such persistent critiques might not have some desire to tear down something you love. In other words, it may feel a lot like malice towards the Church, in the sense that those critiquing it would like to see it fail or fundamentally reform it to the extent that it would be mostly unrecognizable. 

We are all freely engaging in this dialogue, so its not like anyone is being exposed to these criticisms against their will. But it is something to think about. 

You don't seem to know my history.

[jkwilliams]

Just now, ttribe said:

You don't seem to know my history.

Sometimes I feel like I’d still be active in the church if I had never heard of apologetics. 

[MiserereNobis]

3 minutes ago, ttribe said:

You don't seem to know my history.

No man knows your history!

(my decade here might have granted me my first Mormon insider joke!)

Edited February 25, 2023 by MiserereNobis

[Ryan Dahle]

3 minutes ago, jkwilliams said:

You assume we don’t know what it’s like to be in your shoes. I think Teancum, ttribe, and I know exactly what that’s like. For me, the key is not making things personal, though often people seem to take criticism of the church as an attack on them personally. I try, anyway, to speak my mind without being offensive. Sometimes I fail.

Actually, I was aware that you and many others have been in the believers' shoes. But it has probably been a while since you have been on that side of the tracks. 

[jkwilliams]

Just now, Ryan Dahle said:

Actually, I was aware that you and many others have been in the believers' shoes. But it has probably been a while since you have been on that side of the tracks. 

I remember when the three of us defended the church on this board. Then the darkness came …

[Nemesis]

Everyone be nice.  If you can’t play with each other nicely then it’s either time to lock the thread or you take a break.  
 

-Nemesis

[Kenngo1969]

11 hours ago, ttribe said:

You don't seem to know my history.

"No [One] Knows [Your] History"?  Fawn Brodie, is that you?   

   

Sorry!   Couldn't resist!  

All in fun, ttribe.  All in fun! (Lord knows, this thread could use a shot of levity!)   

 

[Kenngo1969]

This may have been posted already, in this fast-moving thread of which, definitely, it is difficult to keep track of adequately.  If so, please forgive the duplication.  I think, perhaps, it is useful to keep in mind the gravity and, perhaps, the ubiquity, of the violation of which the Church of Jesus Christ of Latter-day Saints and Ensign Peak Advisors, respectively, have been accused.  Ubiquitous?  Grave?  Perhaps this sort of violation is more common, and therefore less grave, than those who have manifested such concern about it might want to admit.

https://www.deseret.com/opinion/2023/2/22/23610459/church-sec-settlement-investment-forms

 

[CV75]

1 hour ago, Kenngo1969 said:

This may have been posted already, in this fast-moving thread of which, definitely, it is difficult to keep track of adequately.  If so, please forgive the duplication.  I think, perhaps, it is useful to keep in mind the gravity and, perhaps, the ubiquity, of the violation of which the Church of Jesus Christ of Latter-day Saints and Ensign Peak Advisors, respectively, have been accused.  Ubiquitous?  Grave?  Perhaps this sort of violation is more common, and therefore less grave, than those who have manifested such concern about it might want to admit.

https://www.deseret.com/opinion/2023/2/22/23610459/church-sec-settlement-investment-forms

 

Considering the source of the spirit of contention, I do not see how it cannot help but drive the presentation of facts toward an untruthful conclusion and at best, with unintended intellectual dishonesty. 

 

[pogi]

1 hour ago, Kenngo1969 said:

This may have been posted already, in this fast-moving thread of which, definitely, it is difficult to keep track of adequately.  If so, please forgive the duplication.  I think, perhaps, it is useful to keep in mind the gravity and, perhaps, the ubiquity, of the violation of which the Church of Jesus Christ of Latter-day Saints and Ensign Peak Advisors, respectively, have been accused.  Ubiquitous?  Grave?  Perhaps this sort of violation is more common, and therefore less grave, than those who have manifested such concern about it might want to admit.

https://www.deseret.com/opinion/2023/2/22/23610459/church-sec-settlement-investment-forms

 

It is not about the legal gravity of the issue for me.  I have made that clear from the beginning.

Just want to make it clear that defending and playing down the legal side of this issue is really not speaking to most members who are struggling with this.  

[Teancum]

19 hours ago, smac97 said:

I love the Church, warts and all.  I can and do acknowledge its various flubs, mistakes, errors in judgment, flaws and whatnot.  But overall it's a wonderful organization, and it deserves substantial measures of both loyalty and reasoned defense.

I used to feel that way but IMO I could no longer trust the character of the founder of the religion and many of his successors.  As for the current and modern leadership, loyalty and trust has to be earned.  Perhaps because I feel my faith, trust and loyalty was betrayed and burned ( and it has been in other areas of my life as well) I have become rather cynical and less apt to trust as I am now well into the seventh decade of my life.  

[Analytics]

1 hour ago, Kenngo1969 said:

This may have been posted already, in this fast-moving thread of which, definitely, it is difficult to keep track of adequately.  If so, please forgive the duplication.  I think, perhaps, it is useful to keep in mind the gravity and, perhaps, the ubiquity, of the violation of which the Church of Jesus Christ of Latter-day Saints and Ensign Peak Advisors, respectively, have been accused.  Ubiquitous?  Grave?  Perhaps this sort of violation is more common, and therefore less grave, than those who have manifested such concern about it might want to admit.

https://www.deseret.com/opinion/2023/2/22/23610459/church-sec-settlement-investment-forms

 

In short, even though they deliberately chose to not follow the rules and they lied, at least they didn’t cheat or steal.