WASHINGTON — In a new challenge to the Securities and Exchange Commission’s enforcement jurisdiction over certain swaps, attorneys for two former JPMorgan bankers that secured swap transactions for the firm with Jefferson County, Ala., are urging a federal judge to throw out most of the securities fraud charges the SEC filed against them in November.
The SEC charged the former bankers made more than $8 million in undisclosed payments to close friends of certain county commissioners and broker-dealers to ensure that JPMorgan would be selected as managing underwriter of bond offerings and that the firm’s affiliated bank would be chosen as swap provider.
But attorneys for former bankers Charles LeCroy and Douglas MacFaddin claim the swaps are not “securities-based” and therefore fall outside the SEC’s antifraud authority. They each made the claim in separate motions to dismiss the case that were filed with the U.S. District Court for the Northern District of Alabama in Birmingham on Friday and Tuesday.
The motions, which focus on the legal arguments for dismissal and not the facts of the SEC’s complaint, also claim the charges should be dropped because the commission failed to cite a specific instance in which the pair committed fraud.
In addition, LeCroy argues against the SEC’s call for injunctive relief — which would bar him from future violations — on grounds that he has already been barred from the industry and the commission has exceeded a five-year limit on seeking such relief.
The swaps in question were entered into in connection with three Jefferson County bond transactions in 2002 and 2003 and are at least partly pegged to the Securities Industry and Financial Markets Association’s municipal swap index, which the SEC argues is securities-based because it is derived from a basket of variable-rate demand notes.
But LeCroy and MacFaddin’s attorneys counter that the SIFMA swap index is an index of rates and that the swaps therefore fall outside the SEC’s antifraud jurisdiction. Their claim mirrors an argument that SIFMA made two years ago in a friend-of-the-court brief in a separate case that also involved Jefferson County swaps.
The judge in that case, which involved former Birmingham mayor and Jefferson County Commission president Larry Langford, has not yet ruled on the issue because the case was put on hold pending resolution of criminal charges against Langford. He was convicted of 60 felony charges in late October but has not yet been sentenced and has filed a motion for a new trial.
MacFaddin cites as a true securities-based index the Barclays Capital U.S. Corporate Floating Rate Note Index because it has a “value” measured from the performance of certain floating-rate notes. In contrast, he argues, the SIFMA swap index has no “value.” Instead, its “level” is derived by calculating the “standard deviation of the rates” extracted from a weekly set of VRDNs, he claims.
Under federal law, derivatives are not securities. Instead, they are considered to be contracts that fall outside the regulatory jurisdiction of the SEC and the Municipal Securities Rulemaking Board.
But the SEC’s enforcement division has taken the position in its cases that municipal bond-related derivatives involve securities and are therefore subject to the antifraud jurisdiction of the commission and the MSRB.
Legislation pending in Congress would divide up regulatory jurisdiction over swaps between the SEC and the Commodity Futures Trading Commission. LeCroy’s motion to dismiss in this case argues that the jurisdictional issue should be addressed by Congress and not the courts.
LeCroy and MacFaddin also each take note of an earlier action the SEC brought against LeCroy and another JPMorgan banker, Anthony Snell, in a separate case involving Philadelphia. In the case, an SEC administrative law judge ruled that while an issuer might enter into a swap transaction or a swaption at the same time as it enters a bond offering, the contemporaneous nature of the two transactions does not make them a single financial instrument with a bond component.
The 2007 decision, by SEC administrative law Judge James T. Kelly, merely touches on muni derivatives, but it later became final and constituted the “action of the commission,” according to MacFaddin.
In arguing that the SEC failed to cite a specific instance in which the pair committed fraud, their attorneys said the undisclosed fees were tied to the swap transactions and that JPMorgan was under no obligation to disclose them in swap documents or the county’s official statements.
LeCroy and MacFaddin made payments to local dealer firms that performed few or no services in the transactions, the SEC claimed, citing documents related to the bond and swaps transactions and taped conversations with the two men.
While the commission charges the undisclosed fees deprived investors of an honest underwriting process on the bonds, LeCroy argues they were not material to investors because they had no conceivable impact on the value or volatility of Jefferson County’s bonds. SEC officials could not be reached for comment.
LeCroy left JPMorgan in 2004 and currently lives in Winter Park, Fla. In early 2005, he plead guilty to two counts of wire fraud for engaging in a scheme to make payments to obtain muni business from Philadelphia, on behalf of JPMorgan, and was sentenced to six months in prison. He was barred from the financial markets in October 2006.
MacFaddin, of Cos Cob, Conn., served as managing director and head of JPMorgan’s municipal derivatives department from 2001 until March 2008. The SEC settled charges with JPMorgan last year when it filed charges against LeCroy and MacFaddin.
Without admitting or denying the charges, JPMorgan agreed to pay a penalty of $25 million to the federal government and $50 million to Jefferson County, as well as to forfeit more than $647 million of claimed termination fees.