Is SEC Cherry Picking Case Nit Picking Depositions?

February 13, 2017

At its core, a recent Securities and Exchange Commission case alleges that the Respondent didn't do right by his clients but, in essence, picked through various trades and dumped the less successful trades on his unsuspecting clients. As the case makes its way to a contested hearing, the Respondent argues that he is being overwhelmed by the regulatory machinery and being forced to choose between defending himself or providing for his family. Frankly, it's not that rare a complaint. Although I am not suggesting any moral equivalency, the photo of that lone Tiananmen Square protester standing in the way of a tank captures the dimension of the challenge raised by many SEC Respondents.  Depending upon the facts of a given SEC enforcement case, sometimes you root for the tank; sometimes you root for the guy in the white shirt.

Case In Point

On October 4, 2016, the Securities and Exchange Commission ("SEC") instituted administrative proceedings ("OIP") against Laurence I. Balter, who during various times was a registered representative and an investment adviser. In the Matter of Laurence I. Balter d/b/a Oracle Investment Research, Respondent (Order Instituting Proceedings and Cease-And-Desist Proceedings, /33 Act Re. No. 10228' '34 Act Rel. No. 79032; Invest. Adv. Act Rel. No. 4545; Invest. Co. Act Rel. No. 32301; Admin. Pro. File No. 3-17614 / October 4, 2016). 

NOTE: An OIP merely contains allegations and a respondent is presumed innocent unless and until proven guilty beyond a preponderance of the evidence. 

Let's take a quick trip from the top to bottom of the investment complex involved in the OIP:
  • Oracle Investment Research, an SEC registered investment adviser from June 2, 2010, until the company withdrew its registration on August 26, 2013. Oracle had $47 million in assets under management. Balter was the founder, sole owner, principal, and Chief Compliance Officer of Oracle Investment Research.
  • Oracle Family of Funds, a trust registered with the SEC as an investment company from June 8, 2010 until March 6, 2014. Balter served as the Oracle Family of Funds' President, a Trustee, and sole employee.
  • Oracle Mutual Fund, a series of the Oracle Family of Funds. Balter served as the portfolio manager, Chief Compliance Officer, Administrator/Adviser to the Oracle Mutual Fund, which ceased operation on August 31, 2013 and withdrew its registration on November 21, 2013.
The OIP asserts that a large number of Balter's advisory clients were over-60-years-old retirees (or nearing retirement), who are further characterized as "unsophisticated investors with little investment experience." As preliminarily set forth in the "Summary" section of the OIP:

1. This proceeding involves multiple breaches of fiduciary duty and violations of the antifraud provisions of the federal securities laws from January 2011 to April 2014 (the "Relevant Period") by Laurence I. Balter ("Respondent"), a formerly registered investment adviser to the Oracle Mutual Fund (the "Fund") and between 100 and 120 separate accounts ("Separately Managed Accounts" or "SMAs"). Balter engaged in three distinct schemes. First, he fraudulently allocated profitable trades to his own accounts to the detriment of several client accounts. Second, Balter falsely told his SMA clients who invested in the Fund that they would not pay both advisory fees and Fund management fees for the portions of their accounts invested in the Fund. Third, Balter made trades for the Fund that deviated from two of its fundamental investment limitations. Together, the violations caused significant harm to Balter's clients.

2. By virtue of this conduct, Respondent willfully violated Securities Act Section 17(a), Exchange Act Section 10(b) and Rule 10b-5 thereunder, Advisers Act Sections 206(1), 206(2), 206(4) and 207, and Rule 206(4)-8 thereunder, and Investment Company Act Section 34(b), and willfully aided and abetted and caused violations of Investment Company Act Sections 13(a) and 34(b).

Motion Practice

As the SEC's cherry-picking case against Balter makes its way towards a contested hearing, on January 18, 2017, Respondent Balter filed a motion seeking, among other things, leave to depose two additional persons; and a denial/quash/modification of the SEC Division of Enforcement's ("Enforcement's") notice to depose him.  

SIDE BAR: § 201.233 Depositions upon oral examination.

(a)Depositions upon written notice. In any proceeding under the 120-day timeframe designated pursuant to § 201.360(a)(2) depositions upon written notice may be taken as set forth in this paragraph. No other depositions shall be permitted except as provided in paragraph (b) this section

(1) If the proceeding involves a single respondent, the respondent may file written notices to depose no more than three persons, and the Division of Enforcement may file written notices to depose no more than three persons.

(2) If the proceeding involves multiple respondents, the respondents collectively may file joint written notices to depose no more than five persons, and the Division of Enforcement may file written notices to depose no more than five persons. The depositions taken under this paragraph (a)(2) shall not exceed a total of five depositions for the Division of Enforcement, and five depositions for all respondents collectively 

(3) Additional depositions upon motion. Any side may file a motion with the hearing officer seeking leave to notice up to two additional depositions beyond those permitted pursuant to paragraphs (a)(1) and (2) of this section . . .

. . .

(f) By remote means.The parties may stipulate - or the hearing officer or Commission may on motion order - that a deposition be taken by telephone or other remote means. For the purpose of this section, the deposition takes place where the deponent answers the questions.

. . .

(j) Duration; cross-examination; motion to terminate or limit - 

(1)Duration. Unless otherwise stipulated or ordered by the hearing officer or the Commission, a deposition is limited to one day of seven hours, including cross-examination as provided in this subsection. In a deposition conducted by or for a respondent, the Division of Enforcement shall be allowed a reasonable amount of time for cross-examination of the deponent. In a deposition conducted by the Division, the respondents collectively shall be allowed a reasonable amount of time for cross-examination of the deponent. The hearing officer or the Commission may allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. . .

5 - 2 = Moot

Balter's moved to depose a total of five individuals, which he believed comprised three individual provided under (a)(1) above, and two additional provided under (a)(3) above. In reviewing the proposed five witnesses, the ALJ characterized two of them as Enforcement's expert witnesses, which would not be included in the Respondent's threshold of "no more than three persons." As such, Respondent Balter was still within his three-witness limit and did not need leave to depose additional persons. Accordingly, the ALJ denied Balter's motion as moot. In the Matter of Laurence I. Balter d/b/a Oracle Investment Research (Order, Admin. Pro. Rul. Rel. No. 4560; Admin. Pro. File No. 3-17614 / January 27, 2017).

A Matter of Time

As to Respondent Balter's motion to quash/modify the deposition and subpoena against him from Enforcement, Balter asserted that he was unavailable for the scheduled February 7, 2017, date and will not be available until February 28th; and, further, that Enforcement has already deposed him on two dates for in excess of 11 hours after having previously informally interviewed him eight times. In addition to deeming the Enforcement's request for a deposition to be in violation of 233(j)(1), Balter further characterizes it as unreasonable, oppressive, and unduly burdensome. He requested that the deposition be quashed or modified by rescheduling it to February 28th and ordering that the deposition be limited to no more than two hours. 

In response to Balter's motion, the ALJ ruled that [Ed: footnote omitted]:

[T]he parties may reschedule the deposition to a mutually convenient date consistent with the amended prehearing schedule. Respondent's request that the deposition be limited to two hours will be denied. While it may seem unnecessary for the Division, having interviewed and taken testimony from a respondent prior to the institution of proceedings, to depose him during the proceeding, the Commission's rules do not prohibit this or restrict the duration of such a deposition.

An Inexpensive Determination

Finally, the ALJ tackled Respondent Balter's various complaints about the financial pressures exerted upon him by Enforcement. In responding to such complaints, the ALJ considered the SEC's Rules of Practice that address such conflicts:

§ 201.103 Construction of rules. 

(a) The Rules of Practice shall be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding. . .

In ruling on Balter's motions, the ALJ offered this commentary:

Justice and Expense

The Commission requires that its rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding." 17 C.F.R. § 201.103(a). Respondent urges that his deposition, if any, and Barbata's be scheduled on adjoining days, to conserve resources involved in counsel traveling to Hawaii. Motion at 4. In the motion and elsewhere, Respondent states that he supports his family by giving flight lessons and driving Uber and that he is financially pressed. Motion at 9; Balter Decl. at 2-3. The parties are urged to cooperate on the logistics of depositions so as to conserve public and private resources. See 17 C.F.R. § 201.233(f) (providing that depositions may be taken remotely). Further, the parties are urged to consider video hearing sessions as well, so as to reduce expenses to Respondent and the Commission to the extent possible. 

Bill Singer's Comment

If you re-read the above blog, you should note that I have NOT expressed any position as to the merits of either the SEC's or Respondent's case. The OIP is well crafted and its allegations are compelling; however, we do not have any sense of Respondent's defenses or counter-statement of facts. Consequently, today's blog is simply about jockeying for pre-hearing position and procedural gamesmanship. I am not getting into the  merits of the case.

For those unfamiliar with SEC practice, you now have a taste as to just how granular the process can get: the numbers of witnesses you can call, when and where a deposition should be scheduled, opportunities to the use video, etc.. This case the SEC's ALJ system and its in-house administrative hearings; and, if nothing else, prompts us to wonder how differently the motions might have been treated in a neutral forum, federal court by a magistrate or judge who does not work at the SEC. 

One aspect of the ALJ's ruling that bothers me is what I view as her "punt" on Balter's complaints about the logistics of the depositions. In response to Respondent's motions seeking a decision on the mechanics of the proposed depositions, the ALJ urged the parties to cooperate. I don't think that the ALJ's Kumbaya refrain is consistent with promoting a "speedy, and inexpensive determination . . ." I would refer the ALJ to Clotho, Lachesis, and Atropos for a far better approach to such motions: Spin, measure, and cut. 

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