A U.S. appeal court will consider whether a district court judge was right to reject a proposed settlement between the U.S. Securities and Exchange Commission and Citigroup Inc.
Last year, Judge Jed Rakoff, of the Southern District of New York, rejected a proposed settlement between the SEC and Citigroup, saying that he couldn’t determine whether the deal was fair or not, as Citi was not admitting or denying any wrongdoing, as is often the case in SEC settlements.
On Thursday an appeal court has granted the SEC’s bid for a stay of district court proceedings, and says it will consider the Rakoff decision. It ordered that counsel be appointed to advocate for upholding the district court’s order.
However, in its decision the court suggests that the SEC and Citi are likely to succeed in their bid to overturn the ruling, saying, “Having considered the various explanations given by the district court for its refusal to permit the settlement, we conclude that the SEC and Citigroup have a strong likelihood of success in their joint effort to overturn the district court’s ruling.”
Fitch Ratings says that it believes the appeal court decision could set a precedent for the banking industry. “We believe it would be beneficial for Citi if the decision is upended, clearing the way for a settlement,” it says.
The rating agency also says that it believes the SEC, “may be less likely to pursue these types of cases if judges back away from approving settlements.” It notes that, “The SEC has stated it is already under financial budgetary hardship. Consequently, the SEC may not allocate valuable resources to cases fraught with delay risk and uncertain financial benefit.”
And, it says that banks will be much less likely to settle if they are required to admit wrongdoing, as this will open the doors to further litigation risk.
The case will also be watched closely in Canada, where the Ontario Securities Commission is considering the introduction of no-contest settlements, similar to the sort that Rakoff rejected, in certain circumstances. The OSC has proposed the idea for comment, and plans to hold a public hearing on the issue later this year.
Taking aim at “no contest” settlements
In the SEC-Citi case, Fitch says that as an alternative to waiting for an appeals decision, the firm and the regulator could possibly agree to a higher settlement amount in the hope that Rakoff would then approve it, as he did in an earlier case.