United States Securities & Exchange Commission v. Jensen

The SEC may sue for violation of its Rule 13a14, which requires CEOs and CFOs to personally verify the accuracy of financial reports, if the verification is false, as well as if no verification is provided.  Once any party has properly demanded a jury trial in a federal case, the demand may be withdrawn under Rule 38 only by a stipulation of the parties.  Here, the SEC did not initially demand a jury, but one of the defendants did in his answer.  When that defendant filed a notice of withdrawal of the jury demand, the SEC objected, and it continued objecting several more times before trial.  The district court erred in proceeding to try the case without a jury.  All but one of the SEC’s claims were triable to the jury because they sought civil penalties, a legal remedy, in addition to other equitable remedies.  The SEC had not waived its objection to withdrawal of the jury demand, and unilateral withdrawal is ineffective even if the objecting party didn’t initially demand a jury.  The error in holding a court trial is non-prejudicial only when a motion for judgment as a matter of law could properly be granted because there were no triable issues of material fact.  Here, that wasn’t so.  Witness credibility played a large role in the court’s decision.  Even the district court’s decision on the one claim on which the SEC sought only equitable relief had to be reversed because that claim arose from the same facts as the other claims, and so the district court would have to apply the jury’s findings to determine that claim.  SEC Rule 13a14 requires that CEOs and CFOs personally verify the accuracy of financial reports, such as 10K and 10Q reports, filed with the SEC.  This decision holds that the rule provides for an action by the SEC if the verification is false as well as if no verification is provided.  Also SOX section 304 (15 USC 7243) provides that the CEO and CFO must disgorge to the corporation any bonus and any profits received from sale of the corporation’s stock if the corporation is required to prepare an accounting restatement due to the corporation’s material noncompliance with securities laws.  This decision holds that the CEO and CFO must make disgorgement even if the accounting restatement does not result from any wrongdoing on their part.

Ninth Circuit Court of Appeals (Clifton, J.; Bea, J., concurring); August 31, 2016; 2016 WL 4537377

 

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