During my three decades on Wall Street (which has included stints as an industry regulator, industry defense lawyer, and public customers' lawyer), I've seen demands from regulators that arrive on Christmas Eve or that demand production on New Year's Day. Sure, in some cases those dates for transmission of correspondence or production of documents may be warranted; however, many such examples were simply blatant attempts by a regulator to intimidate or sandbag. To be fair, the same nonsense is often engaged in by respondents or their counsel. It's just that you sort of expect a bit more principled conduct from the so-called "good guys."
Over the years, I have had my share of battles with the SEC and other regulators when I needed an extension of time for the production of documents or to change the date of a previously scheduled on-the-record interview or hearing. In some cases, a client was sick or recovering from surgery. in other instances, a client's child or close family member had been rushed o the hospital. In those difficult post-9/11 days, I had clients who were afraid to travel by air. Similarly, there were times when a natural disaster had demolished the client's home and/or business. Of course, there were more than a few instances when the regulatory staff had the same problems and asked me to agree to an extension. Sometimes, you just can't meet a deadline. All of which brings us to today's BrokeAndBroker.com Blog and a matter involving an SEC ALJ's request for an extension of time.
Can I Get 45 Days?
In light of my often lonely battle to promote fairness in regulation, it was with more than a bit of a wry smile that I read a recent request from Securities and Exchange Commission ("SEC") Chief Administrative Law Judge Brenda Murray ("ALJ") who sought an extension of time for the filing of her Initial Decision in a case that had required 12 days of hearings and produced 3,670 pages of transcript. The due date for the Initial Decision is July 29, 2015. In the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri (Motion to the Commission for Extension, Admin. Proc. Ruling No. 2844; Admin Proc. File 3-16178 / June 23, 2015).
In the SEC matter at issue, the ALJ requested a 45-day extension for submission of the Initial Decision "out of an abundance of caution." In setting forth her reasons for seeking an extension, the ALJ offered this explanation:
I understand that a draft of the Initial Decision is all but completed, however, the review and cite checking by the law clerks/attorney-advisers has not yet begun. July and August will be a particularly busy time in the Office with the departure of the senior attorney adviser on June 26, several multi-week scheduled vacations by two of the remaining six attorney-advisers, the necessary review of hundreds of resumes and interviews of a lucky few to fill the attorney-adviser vacancy, extensive involvement in e-filing system development, and multiple deadlines in other cases on the horizon. It is best to avoid rushing on matters of this magnitude. For these reasons, by this motion, I request a forty-five day extension of the Initial Decision due date, to September 14, 2015.
Running Down The Road Tryin' To Loosen My Load
The ALJ enunciated six reasons for seeking a delay:
The legal review and cite checking of the Initial Decision isn't completed.
A Senior Attorney Adviser is leaving. Note that it is an attorney acting only as an adviser, so it's not like this is someone first-chairing.
Two of the remaining six attorneys are going on vacation. So that's, what, seven lawyers in all on this matter if we include the Senior Attorney Adviser?
Need to take time to hire a replacement for the departing attorney adviser.
Some e-filing system is apparently in "development," and that's apparently causing some delay.
The SEC has other matters and they all have deadlines, and we can't get this Decision out on time because of that.
It's hard to read the ALJ's six reasons for an extension and not chuckle. For starters, it's suggestive of a joke in which the question is "How many lawyers does it take to change an ALJ's light-bulb at the SEC?" and the answer is "Seven." Apparently, there are six staff attorneys and one departing attorney adviser who are all somehow critical to the process of the ALJ's drafting of the Initial Decision. I am prompted to paraphrase the line from the Eagles' "Take It Easy":
Well, I'm running down the road tryin' to loosen my load
I've got seven SEC lawyers on my mind,
Four that wanna own me,
Two that wanna stone me,
One says she's a friend of mine
Take It easy, take it easy
What's troubling me is that something, somewhere, somehow just doesn't add up. Who the hell are all these seven lawyers and what do they have to do with the ALJ's drafting of the Initial Decision? Are these SEC Staff Lawyers employed by the SEC's Division of Enforcement and, if so, why should they be assisting the ALJ in drafting a purportedly neutral Initial Decision -- are Respondents' counsel afforded the same role? If these seven lawyers, however, are all assigned to the ALJ's office and are all working on one Initial Decision . . . ummm, well, I mean, seriously???
In Proper Perspective
Finally, to put this whole matter in proper perspective, imagine if lawyers representing industry parties in self-regulatory, state, and federal administrative proceedings asked for extensions of time for the following reasons:
Our law firm is charging our client $1,000 an hour and we would like to take a few more hours to make sure that our legal review and cite checking are exhausted.
A lawyer is leaving our law firm.
Two lawyers at our law firm are going on vacation.
We are hiring new associates and partners and need to take time away from the regulatory proceeding for that purpose.
We are installing a new software system at our law firm; or, the ever popular, our law firm's software system is on the fritz and no one can figure out how to re-boot it or what the product code is for re-setting the outdated enterprise solution that some idiot bought many years ago.
We have other clients to service at our law firm and this SEC matter is not the only case on which we are representing someone.
Anyone want to place a small wager as to how a defense lawyer will fare if he or she presents any of the last six excuses/explanations to a Wall Street regulator?