涉及提供抵押贷款相关的披露不当问题再次引发美国证券交易委员会（SEC）的关注，涉案单位包括高盛集团（Goldman Sachs）和富国银行（Wells Fargo）。近期的一份法庭命令显示，就天然气管道公司Kinder Morgan和艾尔巴索公司（El Paso）并购一案，摩根斯坦利（Morgan Stanley）和高盛集提供的相关建议存在潜在的客户利益冲突。高盛集团首席执行官罗伊德•布兰克帆显然知情并亲自参与其中。难道这些大型金融机构真的因为规模过大，不可能完全接受法规的约束？
另一派包括创意投资研究公司（Creative Investment Research）老总威廉•迈克尔•坎宁安。他声称，“为了支持公共利益”，应该对和解协议进行审查而不是批准；另外，旨在“促进金融市场公共利益”的非营利性机构“市场优化”（Better Markets）也要求考虑反对拟议的和解协议。
Disclosure failures related to mortgage offerings are again in the sights of the SEC, this time related to Goldman Sachs (GS) and Wells Fargo (WFC). And a recent court order describes potential client conflicts of interest involving advice provided by Morgan Stanley (MS) and Goldman Sachs (with the apparent knowledge and participation of CEO Lloyd Blankfein) related to the Kinder Morgan-El Paso acquisition. Are these and other large financial firms just too big to behave?
"These firms are enormous … [and] as we look at different areas of their business and we focus on different topics, we find problems over and over again," SEC Chair Mary Schapiro explained in late February at a media breakfast (which was filmed by FORA.tv). "People have short memories [and] we have to bring cases continuously … so people don't forget."
Schapiro appeared before Congress on Tuesday to defend the SEC's proposed 2013 budget. Hopefully, the proposed budget is sufficient, and Congress will meet the request and then hold the SEC accountable for "expanding and focusing the investigative function" and "strengthening the litigation function," as its budget proposal states.
Right now, however, whack-a-mole seems to be the name of the SEC's game as it attempts to police the large banks, one incident at a time. But this approach doesn't address the root causes of these incidents, so repeat offenses spring up in new locations. Are there ways to whip these problem companies into shape?
A full hearing into a proposed settlement between the SEC and Citigroup (C) offers an opportunity to explore possibilities. But it's unclear if that hearing will even take place. After federal judge Jed Rakoff ruled that the case should go to trial, the SEC promptly appealed the decision late last year.
Court records show that sides are now forming in the appeals case. The unlikely bedfellows of the Business Roundtable, the SEC, and Citigroup (all of whom support the negotiated settlement) are on one side.
The other side includes William Michael Cunningham, owner of investment firm Creative Investment Research, who has argued "in support of the public interest" that the proposed settlement should be examined, rather than approved, and Better Markets, an organization "that promotes the public interest in the financial markets," which has also requested to weigh in against proposed settlement.
In court documents, the Business Roundtable says that if the settlement were to go to trial, it could put "courts in the position of micromanaging agencies' enforcement decisions." But Cunningham questions the SEC's "concern for expedience over justice … especially if a fairer settlement would help prevent recidivism, and … protect investors."
In addressing Rakoff and its critics, the SEC has used two major talking points, which Schapiro repeated on Tuesday. Settlements are less costly than litigation. If the SEC can secure a settlement similar to what they would get through a trial, without the uncertainty of litigation and the delay of investigation, it's a good deal for everyone, Schapiro said. Yet financial institutions won't settle with the SEC if they have to admit wrongdoing, she argued.
But the SEC has not addressed other solutions that might cost the agency even less in the long term.