Potentially Dubious Flexible Rescheduling of SEC Hearing

May 19, 2017

Starting in June 2013 and running somewhere into January 2017, millions of shares of unregistered pennystocks were allegedly sold without the necessary due diligence. Additionally, Suspicious Activity Reports likely should have been but were not filed. Although the shares may have sold for mere pennies, the proceeds amounted to just shy of $25 million. Not exactly chump change. All of which prompts a Securities and Exchange Commission investigation and the scheduling of a full-fledged regulatory hearing. In keeping with the august tradition of the BrokeAndBroker.com Blog, we focus on the silliness that is often attendant to such regulatory enterprises of great pith and moment.

Case In Point

As stated in the "Summary of Claims" portion of a Securities and Exchange Commission ("SEC") Order Instituting Administrative and Cease-And-Desist Proceedings (the "OIP") In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (OIP; '33 Act Rel.No. 10293; '34 Act Rel. No.79877; Invest. Co. Act. Rel. No. 32451; Admin. Proc. File No. 3-17813 / January 25, 2017):

3. On numerous occasions, from at least June 2013 to the present, Meyers Associates violated Securities Act Section 5 by facilitating the unregistered sale of hundreds of millions of penny stock shares, without performing adequate due diligence regarding the sales' Section 5 compliance.

4. In addition, regarding the same penny-stock transactions as well as others, Meyers Associates repeatedly violated Exchange Act Section 17(a), and Rule 17a-8 thereunder, by failing to file suspicious activity reports ("SARs") with the United States Treasury Department's Financial Crimes Enforcement Network ("FinCEN"), as required by the Bank Secrecy Act of 1970 ("BSA") and its implementing regulations. Meyers Associates failed to file required SARs for suspicious penny stock sale transactions that resulted in proceeds of at least $24.8 million.

5. From June 2013 to the present, Meyers Associates earned a total of at least $493,000 in commissions and fees from the above illegal penny-stock sales and unreported suspicious transactions.

6. Respondent Telfer was Meyers Associates' AML officer and, pursuant to the firm's written AML program (the "AML Program"), was personally responsible for monitoring customer transactions for suspicious activity and ensuring the firm's compliance with SAR reporting requirements. By failing to monitor customer transactions and failing to cause the firm to file the required SAR reports, Telfer aided and abetted, and caused, Meyers Associates' violations of Exchange Act Section 17(a) and Rule 17a-8 thereunder.

February 27, 2017 Hearing

Simply going by the seriousness of the allegations, we can all understand the SEC's concerns. On the other hand, it's sort of tough to justify the filing of the OIP on January 25, 2017, and the scheduling of a hearing for February 27, 2017, as was the case. Yeah, I know, it's all part of the give-and-take and back-and-forth of SEC regulatory proceedings. Still . . . unless you're an insider looking out, it all appears a bit of a rush to justice when the time between the filing of a complaint and the first hearing is only about one month. As noted by Chief Administrative Law Judge Brenda P. Murray in In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (Order Postponing Hearing; Admin. Proc. Rul. Rel. No. 4578; Admin. Proc. File No. 3-17813 / February 1, 2017), about a week after the OIP was filed (and less than a month before the first, scheduled hearing) there wasn't even a record that :

Windsor Street Capital, L.P. (f/k/a Meyers Associates, L.P.), or John David Telfer have been served with the OIP. However, on January 31, the Division of Enforcement relayed a request from the parties to my office by telephone that I postpone the hearing and schedule a telephonic prehearing conference at any time on February 27, 2017.

I GRANT the request, POSTPONE the hearing, and schedule a telephonic prehearing conference on February 27, 2017, at 9:30 a.m. ET

March 1, 2017 Order

Following the prehearing conference of February 27, 2017, Chief ALJ Murray rescheduled the initial hearing to June 19, 2017. In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (Order Following Prehearing Conference; Admin. Proc. Rul. Rel. No. 4643; Admin. Proc. File No. 3-17813 / March 1, 2017).

Respondent's First Request for Postponement

In May 2017, Respondent Windsor Street Capital made its first request for a postponement of the initial hearing, which had been rescheduled by the ALJ to June 19, 2017. Respondent Telfer had previously made an offer of settlement, which the Division accepted and would be presenting to the Commission for approval. In the Matter of Windsor Street Capital, L.P. (F/K/A Meyers Associates, L.P.) and John David Telfer, Respondents, (Order on Motion; Admin. Proc. Rul. Rel. No. 4805' Admin. Proc. File No. 3-17813 / May 17, 2017). In support of its request for a postponement, Respondent Windsor Street Capital informed the SEC that it had ceased the business practices that are alleged in the OIP (apparently to demonstrate the lack of likelihood of ongoing harm to the public). In further support of Respondent's postponement request, the May 17th Order states that:

Windsor represents that counsel has been focused on settlement negotiations and needs time to prepare for the hearing and one of two new co-counsel, David E. Robbins and Sam Silverstein, who submitted a notice of appearance on May 8, 2017, is unavailable because of a scheduling conflict.

"NO" but with "Flexibility"

In response to Respondent's postponement request, the May 17th Order asserts that:

[W]hile the Division does not consent to a postponement, it has indicated it would be flexible on the hearing date.

We don't consent but we're flexible on the date? Seriously?

As a former regulator with two regulatory organizations, I fully understand why regulatory staff would push back against certain postponement requests. Frequently, respondents often make those requests in bad faith and only to disrupt the staff's trial preparation. On the other hand, given the specific facts in this case, a few weeks of additional time isn't that big of a deal. Frankly, given all the circumstances behind the postponement request, any veteran regulatory lawyer would expect that a reasonable trier-of-fact (be that an ALJ or judge) would likely grant some extension. Alas, litigation tends to devolve in silliness and this case is no exception. In support of its "NO" but with "flexibility," the Division purportedly argued that:

"Windsor has not articulated a reasonable basis for the postponement and because the requested delay is potentially unfair to the Division." Opp. at 1. If a postponement is granted, however, the Division stated it is available the week of June 26 and from July 19 to September 1. Id. It noted that July 19-25 is problematic for its litigation team and witnesses due to previously scheduled obligations. Id. at 1-2.

Articulation and Potential Unfairness

There you go: the Division's "NO" is partially based upon a perceived lack of articulation. Ya got a lot of that going around in SEC practice.
If Respondent "articulates" a reasonable basis for seeking a postponement, the Division might agree? I love a good articulation just as well as the next lawyer. I'm sure that the ALJ is equally enamored with the idea. I'm sure that the ALJ has nothing else to do than deliberate over a respondent's articulation rather than entertain a reasonable first-request for postponement to a date stipulated by both the Division and Respondent. I'm guessing you folks couldn't just hug it out when it came to agreeing on a future date?

Then there's the really critical protest from the Division that the postponement is unfair . . . well, on second thought, I misstate that argument. The Division doesn't assert that the postponement is, in fact, unfair. Oh no. Not at all. The Division argues that the postponement is "potentially" unfair. Impressive legal argument! All those years of law school and practice and you're actually arguing against a postponement not because you can actually demonstrate to an ALJ that the delay would actually be unfair but you are actually making the argument that the delay is "potentially" unfair.In response to the Division's flexible "NO" based upon concerns about articulation and potential unfairness, the May 17th Order explains that:

On May 16, 2017, Windsor submitted a letter objecting to the Division's characterization of its reasons for a postponement as "dubious," stating that counsel initially requested that the hearing not be scheduled until at least the third week of June, and arguing that not postponing the hearing would be extremely damaging and prejudicial to Windsor. Regarding its availability for the week of June 26, counsel only noted the possibility of a personal scheduling conflict on one day that week, but cannot predict the specific date at this time.

June 26, 2017 Rescheduled Hearing

Chief ALJ Murray rescheduled the hearing to June 26, 2017. In explaining her rationale, the ALJ states that:

I am persuaded by the following. The OIP was issued three and a half months ago. The parties have known the hearing date since March 1. The Division, which has the burden of proof, has witnesses ready for the week of June 19, but is available the following week. At the prehearing conference, counsel for Windsor notified me that he expected the birth of a grandchild to occur on June 8 and would prefer not to schedule the hearing for that week or the following week, thus I scheduled the hearing to begin on June 19, 2017. Tr. 15.2 Now, in addition to the birth of a grandchild, we have new counsel's son's wedding, a fortieth wedding anniversary, and an Alaskan cruise. Mot. Ex. B at 2. Finally, the allegations are serious and should be resolved and there are no substantive issues to be resolved before the hearing can begin.

All of this for a one-week extension?

Bill Singer's Comment

It was with more than a bit of a wry smile that I recalled a request by none other than Chief ALJ Murray for an extension of time so that ALJ Jason S. Patil could file an Initial Decision in a case that had required 12 days of hearings and produced 3,670 pages of transcript. 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). Chief ALJ Murray had requested a 45-day extension for submission of the Initial Decision "out of an abundance of caution." The proposed Initial Decision did not apply to Respondent Bolan, who had settled with the SEC. In setting forth her reasons for seeking an extension of the July 29, 2015, due date, 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.

Chief ALJ Murray enunciated six reasons for seeking a delay:

  1. The legal review and cite checking of the Initial Decision isn't completed;
  2. 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;
  3. Two of the remaining six attorneys are going on vacation. So that's, what, seven lawyers on this matter if we include the Senior Attorney Adviser?;
  4. Need to take time to hire a replacement for the departing attorney adviser;
  5. Some e-filing system is apparently in "development," and that's apparently causing some delay and
  6. The SEC has other matters and they all have deadlines, and I can't get this Initial Decision out on time because of that.
It's hard to read the Chief ALJ Murray's six reasons for seeking an extension for her own work 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 were six staff attorneys and one departing attorney adviser who were all somehow critical to the process of the ALJ's drafting of the Initial Decision.

What's troubling me is that something, somewhere, somehow just doesn't add up.  What do all these SEC lawyers have to do with an ALJ's drafting of the Initial Decision?  Why should SEC lawyers be assisting any ALJ in drafting a purportedly neutral Initial Decision? After all, are Respondents' lawyers afforded the same opportunity? Further, seven lawyers? Seven lawyers plus an ALJ are all needed to draft one lousy Initial Decision? What was that word the Division used when it objected to Respondent Windsor Street Capital's request for a hearing postponement? Oh yes, I remember: "Dubious."  

Imagine if lawyers representing industry parties in self-regulatory, state, and federal administrative proceedings asked for extensions of time for the following reasons:

  1. 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.
  2. A lawyer is leaving our law firm.
  3. Two lawyers at our law firm are going on vacation.
  4. We are hiring new associates and partners and need to take time away from the regulatory proceeding for that purpose.
  5. 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.
  6. 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?

In Proper Perspective

I raise the ghost of Chief ALJ's Murray's request for a 45-day extension in In the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri, in order to place Respondent Windsor Street Capital's request for postponement into fairer perspective, which also involved a two Respondent caption with one respondent having settled prior to the initiation of hearings. Laugh all you want about the reference to Respondent Windsor Street Capital's lawyer wanting to take an Alaskan Cruise but remember that when it is convenient, even an SEC ALJ trotted out "several multi-week scheduled vacations by two of the remaining six attorney-advisers."

Why was Chief ALJ Murray's request for a delay in filing the Initial Decision appropriate because of a need to undertake "the necessary review of hundreds of resumes and interviews of a lucky few to fill the attorney-adviser vacancy," but a delay is not okay when considering a defense lawyer's son's wedding or 40th anniversary?

Finally, as Chief ALJ Murray sagely admonished in Ruggieri, "It is best to avoid rushing on matters of this magnitude." What is at stake for Respondent Windsor Street Capital would seem of far greater magnitude that the inconvenience of having to work nights and weekends in order to file an Initial Decision. Hopefully, the one-week extension granted to Respondent Windsor Street Capital will help it better prepare; frankly, I'm not sure why more time was not granted but such are the fun and games at the SEC. And supporters of the SEC's ALJ system still wonder why many detractors view the in-house tribunal as unfair and too cozy with staff?

By the way, in case you were wondering how the Initial Decision postponement request in Ruggieri fared, ALJ Jason S. Patil didn't file that document until September 14, 2015, which is a date subsequent to the due date of July 29, 2015. Chief ALJ Murray got every single day of extension that she sought. Bravo!

The Initial Decision in Ruggieri found that although the Division had established that Ruggieri traded on tips in four of six alleged instances, the Division had failed to meet its burden of proof to establish that Bolan had tipped Ruggieri for a personal benefit within the meaning of Dirks v. SEC, 463 U.S. 646 (1983), and United States v. Newman, 773 F.3d 438 (2d Cir. 2014). In the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri (Initial Decision, Init. Dec. Rel. No. 877; Admin Proc. File 3-16178 / September 14, 2015).

You see . . . sometimes it's important to avoid rushing on matters of this magnitude.

Also READ: "Insider Trading Case Collapses Over Personal Benefit Proof "(BrokeAndBroker.com Blog, September 15, 2015)