2009 was a year to forget for the Securities and Exchange Commission, Wall Street, the White House, law firms-everywhere, really. However, 2009 was truly the gift that kept on giving for those of us who write about SEC enforcement and securities litigation. Here is my look back at 2009, which I have learned I must preface with this important warning: Mom-the column below includes some efforts at satire. These efforts are marked in italics.
Okay, moving on! Let's start in January, which began, as it has for the last three years, with members of Congress Louise M. Slaughter and Brian Baird sponsoring the "Stop Trading on Congressional Knowledge Act." The STOCK Act, which again failed to become law, would prohibit Congress and their staffers from engaging in insider trading based on nonpublic information obtained through their official positions. The other 433 members of Congress once again dismissed the bill as "crazy talk" and ordered Slaughter and Baird back into hibernation until January 2010.
B. Ramalinga Raju, chairman and CEO of Satyam Computer Services, resigned after confessing to falsifying the company's financial records in a $1 billion fraud. He said the fraud was "like riding a tiger, not knowing how to get off without being eaten." Raju promptly received a curious call from golfer Tiger Woods' lawyers, who said Tiger wanted to know "what exactly you meant by that and whether $5 million would be enough for you to not say that again."
In February, lawyer Marc Dreier, whose outrageous $700 million fraud was spared from being the securities fraud story of the year only because of the simultaneously unfolding Madoff scandal, asked the court to allow him to remain free on bail, but on "house arrest" with armed guards pending his trial. This prompted Judge Jed Rakoff to ask the 2009 Judicial Question of the Year to Dreier's lawyers: "Are these armed guards authorized to shoot him?" After careful consideration and discussion with Dreier (who presumably said, "Hell no!"), Dreier's lawyers said the guards could not, repeat NOT, shoot their client. Judge Rakoff granted the request anyway, and ordered Dreier to be held in Dreier's $10 million Manhattan penthouse apartment until trial. In March, CFTC Commissioner Bart Chilton warned the public of "rampant Ponzimonium." The Topps Company jumped on board, announcing that it was issuing a series of trading cards featuring the "world's biggest hoaxes, hoodwinks and bamboozles" such as Bernard Madoff, Charles Ponzi, and Enron. From his penthouse, Dreier issued a statement that he was "finished taking a backseat to Madoff" and that he demanded a trading card, too.
The SEC charged Madoff's auditor with securities fraud for falsely representing and "pretending" that they had conducted legitimate audits, when in fact the auditors had not. The auditors wrote a one-line reply brief to the SEC that read: "Really?? Pretending to do one's job? Are you sure you want to go there?"
Asked in an interview whether she was tough enough to shake things up at the agency, new SEC Chair Schapiro responded that she had been "called the Muammar Qaddafi of regulation." From his palace in Libya, Colonel Qaddafi stated that he was "flattered but that Schapiro has a lot to prove first."
In April, the L.A. Times, The New York Times and the UK's Telegraph all ran stories announcing that the SEC had joined Twitter as a part of Schapiro's effort to revitalize the SEC and make it more transparent. The articles did not mention that that the SEC had already been actively using Twitter since July 2008, leading someone using the Twitter username @maryqaddafi to tweet that "it would be super if my Twitter followers could just keep that bit of information on the down low."
Robert Khuzami, the new Director of the SEC's Enforcement Division, addressed the Enforcement staff on his first day to outline his four major themes: being "strategic, swift, smart and successful." Madoff whistleblower Harry Markopolos immediately held a press conference claiming that Khuzami's "single-minded pursuit of goals beginning with the letter ‘S' was impeding the agency's mission."
The SEC's Inspector General released a report stating that two attorneys at the SEC, including one in the Enforcement Division, were under "active" criminal investigation by the FBI for trading stocks based on inside information learned on the job. The SEC promptly took action to bolster its internal processes to prevent against such trading, but also warned that it would "file an equally ironic case against anyone caught laughing at this development."
In June, counsel for Bernard Madoff suggested to the court that a 12-year sentence would be appropriate for their client. After a brief awkward pause followed by uproarious laughter, the court sentenced Madoff to 150 years in prison. Sholam Weiss, presently serving a record 845-year sentence after being convicted of racketeering, wire fraud and money laundering in the collapse of National Heritage Life Insurance, was heard to say "Wait-I'm serving 695 more years than Madoff?!"
June also brought a new type of collectible: Financial Crisis "Most Wanted" Playing Cards, featuring Madoff, R. Allen Stanford, and others such as Dick Fuld and Angelo Mozilo. In his penthouse, Dreier screamed, "No Dreier card again? Are you kidding me? Did Madoff or Stanford walk into an office building and impersonate an actual lawyer from the Ontario Teachers' Pension Plan? I don't think so!!"
In July, prosecutors in the R. Allen Stanford case gave us the 2009 Thankless Job of the Year: someone, they said, would soon be tasked with the roughly two month long task of "re-assembling the contents of three bags of shredded documents" that were sought as evidence in the case. 12,000 associates laid off from major law firms in 2009 immediately applied for the position.
The trial began of William Jefferson, a nine term Congressman from Louisiana charged with soliciting bribes and violating the Foreign Corrupt Practices Act. This led to the first published photos of Jefferson's now-famous "cash in the freezer," i.e., $90,000 wrapped in aluminum foil in Jefferson's freezer tucked inside containers of Pillsbury Pie Crust and Boca Burgers. From his new home in the Butner Correctional Facility in North Carolina, Madoff texted Dreier with a "rolling eyes" emoticon to say that "everyone knows you use the Red Baron Frozen Pizza box to hide sums of cash over $75,000."
In August, a theatrical play called "Enron" opened in Chichester, England. The Guardian's review stated that it was "an exhilarating mix of political satire, modern morality and multimedia spectacle." The play was so successful that by September, Columbia Pictures had entered into a "high six-figure deal" to acquire the screen rights and adapt the play into a feature length film. 43 telephone calls to Columbia Pictures from "B. Ebbers," an inmate in a Louisiana federal prison pitching "WorldCom, the Musical," went unreturned.
In October, Stanley Chais, a money manager who was sued by the SEC after feeding hundreds of millions of dollars to Madoff, argued that the SEC's claims against him were barred because the SEC's many inspections of Madoff's firm without taking any action "provided credibility to Madoff." The SEC responded that this was the nicest thing anyone had said about them all year.
In November, the SEC began running an ad for a "Supervisory General Attorney" in the Enforcement Division, which included a prominent headline blaring "SEC RANKED THIRD BEST FEDERAL WORKPLACE FOR 2007!" (capital letters, bold face and exclamation point in original). SEC Inspector General H. David Kotz stated that he was opening a 12-month investigation into how the ranking was determined, and would be offering best practices for future rankings.
Also in November, the U.S. Marshals Service collected every watch, golf ball, sand wedge, cuff link, earring, duck decoy, wooden milk stool, baseball jacket, and baseball mitt ever owned by the Madoffs and sold them off at auction. The person who paid $14,500 for a blue satin New York Mets baseball jacket with "MADOFF" stitched across the back called the item a "great value" that could be paired "fabulously" with the Dennis Kozlowski button-fly jeans he'd bought at auction in 2007.
Finally, just under the wire in December, the SEC charged a former vice president of Pride International, Inc. who was responsible for FCPA compliance with ... wait for it... violations of the FCPA. "We warned you in April not to laugh at SEC enforcement lawyers being investigated for insider trading," the SEC said.