2014-04-07 by Robert Schmidt from "Bloomberg News"
A trial attorney from the Securities and Exchange Commission said his bosses were too “tentative and fearful” to bring many Wall Street leaders to heel after the 2008 credit crisis, echoing the regulator’s outside critics.
James Kidney, who joined the SEC in 1986 and retired this month, offered the critique in a speech at his goodbye party. His remarks hit home with many in the crowd of SEC lawyers and alumni thanks to a part of his resume not publicly known: He had campaigned internally to bring charges against more executives in the agency’s 2010 case against Goldman Sachs Group Inc. (GS)
The SEC has become “an agency that polices the broken windows on the street level and rarely goes to the penthouse floors,” Kidney said, according to a copy of his remarks obtained by Bloomberg News. “On the rare occasions when enforcement does go to the penthouse, good manners are paramount. Tough enforcement, risky enforcement, is subject to extensive negotiation and weakening.”
Kidney said his superiors were more focused on getting high-paying jobs after their government service than on bringing difficult cases. The agency’s penalties, Kidney said, have become “at most a tollbooth on the bankster turnpike.”
His March 27 remarks drew applause from the crowd of about 70 people, according to witnesses. In an interview, Kidney said he hadn’t heard any blowback from SEC officials.
SEC spokesman John Nester declined to comment.
‘Afflicting’ Power -
Kidney, 66, has worked at the agency since 1986 except for a four-year stint at Aetna Inc. At the SEC he won a half-dozen insider-trading trials. His speech bemoaned the lack of SEC enforcers who “believe in afflicting the comfortable and powerful.”
The SEC has taken a beating from critics including lawmakers, judges and advocacy groups who say the agency has been too easy on the banks that helped fuel the 2008 crisis by peddling mortgage-backed securities of questionable value to unwary investors. No senior executive at a major financial firm has gone to jail and the SEC has brought civil charges against only a handful.
In his speech, Kidney also hit the agency for using misleading statistics to showcase its enforcement efforts. The SEC should focus on the quality of its actions, rather than try to file as many as possible just to tout its record to lawmakers and the media, he said.
“It is a cancer,” Kidney said of the agency’s use of numbers. “It should be changed.”
‘Lower Burden’ -
Kidney said in the interview that he will always be an SEC loyalist and was trying to offer constructive criticism that could help the agency. He said he wasn’t singling out any specific cases or officials in his comments.
“I don’t think we did a very aggressive job with all the major players in the crash of ’08,” he said, noting that as a civil enforcement agency, the commission does not need to prove its cases beyond a reasonable doubt like the Justice Department does. “The SEC has a lower burden of proof and we should be pushing the envelope a bit.”
The Goldman Sachs suit was one of the highest-profile SEC actions arising from the credit crisis. The bank agreed to pay $550 million to settle claims that it misled investors when it packaged and sold a complex security known as a collateralized debt obligation that was linked to subprime mortgages.
The SEC also sued Fabrice Tourre, who was vice president on the team that put together the deal at issue in the SEC case, known as Abacus 2007-AC1. A federal jury found Tourre liable last year, and he was ordered in March to pay $825,000 in penalties and other costs.
Goldman Executives -
Kidney, who was part of the initial team that was building the Goldman Sachs case, pressed his bosses in the enforcement division to go higher up the chain. He later took himself off the team after being given a lesser role, according to people familiar with the matter.
In particular, the people said, Kidney argued that the commission should sue Tourre’s boss, Jonathan Egol. Kidney also wanted to bring a case against Paulson & Co. or some executives at the hedge fund, which helped pick the portfolio of securities that were underlying the Abacus vehicle and then bet against it.
The SEC ultimately decided not to sue Egol, the Paulson firm or any individuals from the hedge fund.
Andrew Williams, a spokesman for Goldman Sachs, declined to comment.
While Kidney declined to comment on the Goldman case in particular, much of his role is laid out in a September 2010 report by the agency’s inspector general’s office, which reviewed whether the SEC succumbed to political pressure in bringing the enforcement action. Kidney’s name is blacked out in the report.
‘Little Secret’ -
In his retirement speech, Kidney noted that he had been “involved in a high-profile case or two” and said he had gotten a message from above not to take too many risks.
“I have had bosses, and bosses of my bosses, whose names we all know, who made little secret that they were here to punch their ticket,” Kidney said. “They mouthed serious regard for the mission of the commission, but their actions were tentative and fearful in many instances.”
Stephen Crimmins, a former colleague of Kidney’s at the SEC who attended the retirement party, said he was one of the “finest lawyers ever to serve in the enforcement division.” Kidney was known for winning the SEC’s first jury trial, which was an insider trading case.
Kidney earned his legal degree at night from George Washington University’s law school while working as a Supreme Court reporter for the United Press International wire service and at U.S. News & World Report.
“People point to him as being very frank and not one to just say what people want to hear,” said Crimmins, now a partner at the K&L Gates law firm in Washington. Speakers at the party even ribbed Kidney about it, Crimmins said.
“There were some high-ranking people in the room, and everyone took it in stride,” Crimmins said. “Everyone there respected that.”