Goldman Sachs and the SEC Take the Easy Road

The SEC deserved a lot of credit for filing the case against Goldman Sachs for its dubious creation of the ABACUS CDO transaction.  To recall, Goldman created the ABACUS deal so that a hedge fund manager could short the mortgage market, and then sold the securities to an unsuspecting client without disclosing the investment was built to fail.

But while the SEC deserves plaudits for filing a challenging case, settling the case without requiring Goldman to address whether fraud was committed misses the point entirely.  Moreover, this allows Goldman Sachs to avoid turning over potentially incriminating documents about the ABACUS deal, other CDO transactions and the failure by Goldman to disclose the Wells Notice it received after the SEC initially launched its investigation.  Having filed a  shareholder class action case against Goldman Sachs, it was a slight disappointment to see Goldman pay a fine rather than be truly held accountable for its actions.  Speaking of which, while the fine appears to be substantial, its a drop in the bucket for Goldman Sachs, and the “admission” of a mistake was crafted by Goldman lawyers to be later able to deny liability.

To be sure, Goldman’s shareholders still have a strong case.  The evidence will show that Goldman’s CDO transactions and its failure to disclose the Wells Notice was a violation of securities law and through private litigation, I remain confident they will be held accountable

Sean Coffey for NY Attorney General 2010

In the more than three decades I’ve been practicing securities arbitration law in New York, there has never been a candidate that has had the legal smarts, the experience, the integrity — and most of all — the independence to take on Wall Street.  The New York Attorney General position too often has been sought by professional politicians more interested in advancing their political careers rather than truly serving the public good.  Accordingly, they ultimately needed to curry favor with Wall Street and never took meaningful actions that would even limit, let alone eliminate, the industry’s systemic wrongdoing.

Enter, John P. (”Sean”) Coffey.  Coffey is unquestionably one of the most successful trial attorneys in the U.S. and he’s been favorably profiled in various publications including The Wall Street Journal, American Lawyer, and Bloomberg Markets magazine. If the attorney general election were decided purely on accomplishments and experience, Coffey would handily win in a landslide.  He has practiced law from multiple vantage points: as an assistant U.S. Attorney where he tried multiple cases to verdict; as partner in the top-tier law firm Latham & Watkins defending Fortune 500 companies; and as a partner with the class action law firm Bernstein Litowitz, one of the most prominent plaintiff’s firms in the country.

Coffey’s victories are too numerous to mention here, but of special relevance to New Yorkers is the historic $6 billion recovery he garnered as the lead attorney in the WorldCom securities litigation representing the New York State Common Retirement Fund and thousands of other aggrieved investors.  What was especially significant about that settlement was the requirement that all of WorldCom’s outside directors pay a portion of the settlement from their personal funds.

Coffey has an ethical issue with companies using only shareholder money to pay fines and settlements, so you can rest assured that if he’s elected, the WorldCom settlement won’t remain an isolated instance.  I expect that Coffey will mete out justice responsibly and fairly.  He understands the meaning and responsibility of “prosecutorial discretion”.

It is said that an electorate gets the government it deserves.  New York deserves to have a world-class attorney overseeing its levers of justice. Sadly, New York party politics being what they are, a political candidate of Coffey’s unparalleled caliber cannot be assured of victory even given the state’s pathetic state of affairs.  At the end of the day, if New Yorkers are able to hear and meet Sean they will vote for and support him.