Fines levied by the SEC against a corporation for long-ago wrongdoing do not protect current investors.

By DAVID B. RIVKIN JR.  And JOHN J. CARNEY

Two weeks ago, a unanimous Supreme Court rebuffed the Securities and Exchange Commission Gabelli v. SEC. The SEC maintained that its enforcement actions for fines under the Investment Advisers Act weren’t subject to the five-year statute of limitations. This wasn’t the first time the courts have pushed back a federal agency for overreaching. It won’t be the last.

But the SEC’s audacity prompts a broader policy question: What good is accomplished by imposing monetary penalties on corporations, as the agency attempted to do in Gabelli? The answer is that when such penalties are sought by the government, they probably do more harm than good.

Monetary damages, including penalties, that are awarded in private lawsuits are an attempt to compensate victims of corporate fraud and other unlawful behavior, usually shareholders or customers, making them as “whole” as the law can approximate. The SEC doesn’t seek monetary fines in most cases—it has an array of other enforcement options including injunctive or remedial relief. When it does pursue a fine, however, the purpose is solely punitive.

In Gabelli, for example, the SEC brought two sets of claims against principals of an investment firm who countenanced a client’s “market timing” scheme. The first claim sought disgorgement of profits to the government—a remedy that Gabelli didn’t appeal. But the SEC also sought large monetary fines designed solely to punish the defendants and brand them as wrongdoers.

Who is the wrongdoer in such a situation? The company officials who made the bad decisions? The board of directors? The shareholders? Pinning a wrongdoer label on the corporation as a whole or fining a corporation in this way—years after any alleged wrongdoing—punishes current shareholders for conduct that benefited a largely different group of shareholders, if any benefit was conferred at all.

From a current shareholder’s point of view, government-imposed corporate fines are virtually indistinguishable from a tax on investing, and are thus a disincentive for doing so.

Gabelli isn’t the only case when the SEC sought penalties involving ancient conduct. In January 2006, McAfee, the software company, consented “without admitting or denying the [SEC’s] allegations” to pay a civil penalty of $50 million for unlawful conduct alleged to have occurred between 1998 and 2000.

Similarly, in August 2003, UBS PaineWebber agreed to a $500,000 fine in connection with its unacknowledged failure to supervise a former registered representative who served jail time for defrauding certain clients. The conduct ended by March 1998, approximately five and a half years before the SEC instituted administrative proceedings.

More recently, the SEC fined Eli Lilly $29 million in December 2012 for alleged misconduct that purportedly began more than a decade ago.

The principal rationale for levying fines is to deter corporate wrongdoing. The mismatch between the shareholders that benefit from misconduct and those that are ultimately punished undermines this rationale.

Corporate fines are equally problematic when considered as punishment for a manager’s bad conduct. Fine an individual for his conduct, and you are likely to deter him from doing it again. Fine a corporation, and the managers responsible for the misconduct have almost always left or been fired long beforehand. New managers are in place, and for them the tab is just a price of doing business.

Moreover, even the threat of government fines or penalties puts immediate, intense pressure on a corporation to settle, regardless of the merits. A protracted legal fight means a public-relations nightmare. It could also impinge on corporate earnings, the reputations of current executives, and relationships with regulators and other business concerns.

Whether the corporation is actually culpable of wrongdoing is a consideration, but it may not be a major one. That question can be beside the point of getting back to business and avoiding a prolonged battle with the SEC. In the large number of settlement scenarios where actual guilt isn’t the most pressing or relevant consideration, the fines don’t by definition deter any future misconduct.

In any event, when the government obtains fines from corporate wrongdoers, the monies rarely go to any ascertainable “victims”—they merely transfer funds from businesses to an already bloated public sector. With the aggregate penalties often running into the billions of dollars, the economic distortions involved are substantial.

Notwithstanding the Supreme Court’s rap on the SEC’s knuckles for its behavior in Gabelli, this agency and others, both federal and state, are increasingly aggressive in seeking fines. Last month the SEC’s website touted the $1.53 billion in penalties that it has accrued from enforcement actions related to the 2008 financial crisis. The reported monetary relief to victims amounted to $1.15 billion. Stated another way, the government recovered 33% more for itself than for investors.

The SEC has the authority to return some of those fines it collected to injured investors, but the agency website is silent on that point. Bigger fines may demonstrate an agency’s prowess or increase its bragging rights. But that has nothing to do with whether any given amount is appropriate or just punishment—or indeed, any punishment at all.

There is a better way, and it doesn’t mean letting corporations off the hook for bad behavior. In addition to victims’ private lawsuits that hold corporations accountable, government actions can pursue wrongdoers in a variety of ways, including: disgorgement of ill-gotten gains to victims, injunctions to curtail harmful conduct, and the imposition of examiners and monitors, all of which can adequately address and cure the underlying misconduct.

For any government agency—but in particular for the SEC, which supposedly seeks to protect investors—these types of equitable remedies, not punitive monetary fines, should be the remedies of first resort.

Messrs. Rivkin and Carney practice law at BakerHostetler. Mr. Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Carney served in the SEC’s Division of Enforcement and the Justice Department as a Securities Fraud Chief.

Source: http://online.wsj.com/article/SB10001424127887324128504578344502420815488.html?KEYWORDS=Rivkin