A Call to Arms Every Liberal Can Love

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Are you a Democrat who’s uneasy with the radical sloganeering of Occupy Wall Street protesters? Do you think Elizabeth Warren’s critiques on big business are a little, well, pushy? If you’re a liberal (as Phil Ochs said, “Get it?”) looking for safe, non-socialist ground from which to argue that America’s system for overseeing Wall Street has serious flaws, here’s a document for you.

In an order (PDF) released Thursday, District Court Judge Jed Rakoff ripped the SEC a new one, asking in a nine-point document why he should approve a proposed $285 million settlement deal between the agency and Citigroup that would resolve an SEC complaint (PDF) that charged the bank with running an allegedly shady mortgage bundling deal. The settlement and the complaint were both filed in Rakoff’s court Oct. 19, 2011.

Such deals require court approval, Rakoff notes at the start of his order, “to ascertain whether the proposed judgment is fair, reasonable, adequate, and in the public interest.” Rakoff has a reputation among those who appear before him as tough, independent, smart and apolitical. (For example, he went a different direction when he provided some protection to Fred Wilpon and Saul Katz in the case brought by Irving Picard over the Bernie Madoff scam.)

In the Citigroup case, Rakoff seems to suspect the public interest is not being served by the SEC’s proposed settlement, or at least, seems to doubt the rigor of the agency’s work. Among other things, Rakoff ordered the SEC to explain:

-Why it’s settling what it calls a “serious securities fraud” case without Citigroup admitting or denying wrongdoing, given the public’s interest in knowing whether the SEC’s charges are true.

-What the total loss of victims from the mortgage bundling scam was (the SEC only says it was at least $160 million, but doesn’t set an upper limit).

-Why “is the penalty in this case less than one fifth of the $535 million penalty assessed” in the July 2010 settlement in a similar case against Goldman Sachs.

-What deterrent effect the limited penalty of $95 million will likely have, if any.

-What the SEC actually does to enforce compliance with such agreements against large financial entities and “How many contempt proceedings against large financial entitities has the S.E.C. brought in the past decade as a result of violations of prior consent judgments?”

-Why Citigroup and its shareholders are paying the penalty and not the “culpable offenders,” and why the SEC wasn’t able to identify the offenders.

-What oversight was lacking that allowed the scam to occur and what the SEC is going to do to make sure they don’t happen again.

-And finally, “How can a securities fraud of this nature and magnitude be the result simply of negligence?”

Rakoff will convene a hearing on November 9 at 3 p.m. in the Southern District of New York. It is fair to say that public interest will be significantly higher than it normally would be for such hearings. There might even be a few emboldened liberals there.