The Securities and Exchange Commission made a big fuss last year when it changed the settlement language it uses for defendants convicted of crimes in parallel proceedings. The New York Times called this "a fundamental policy shift." Looking back, it turns out the changes were purely cosmetic.
The SEC's standard approach has long been to let defendants settle cases without admitting or denying civil liability. In its January 2012 policy tweak, the agency said it would delete the usual "neither admit nor deny" language from its settlement documents in cases where defendants had been criminally convicted of the same underlying conduct. However, the agency's "no-admit" approach hasn't changed in substance.
Consider the case of Jon Horvath, the former SAC Capital analyst awaiting sentencing after pleading guilty last year to insider-trading charges. (SAC Capital's recent settlement with the SEC was the subject of my column last Friday.) In an April 1 press release, the SEC said "Horvath agreed to a settlement in March 2013 in which he admitted liability." When I first read that sentence, I thought it meant that Horvath had admitted civil liability for the SEC's claims. Silly me. It didn't.
In fact, Horvath's settlement documents with the SEC didn't include any outright admissions of the SEC's allegations. Horvath signed a consent decree in which he acknowledged he had pleaded guilty to three felony counts last year, including securities fraud. Yet the consent decree didn't require him to expressly admit whether the fraud claims against him in the SEC's civil complaint were true -- even though they were based on the same facts, in essence, as the criminal case.
Horvath did agree not to make any public statement denying the SEC's allegations. The settlement documents also said this provision didn't affect his "right to take legal or factual positions in litigation or other legal proceedings in which the commission is not a party." So as far as the SEC is concerned, Horvath would be free to say whatever he wants in any other lawsuits -- never mind that he has been criminally convicted.
Bottom line: Horvath's settlement documents didn't include the normal "neither admit nor deny" language. But he still wasn't required to say that the SEC's claims were true. Is this progress? Hardly.