Koch v. Securities & Exchange Commission , 793 F.3d 147 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2015 Decided July 14, 2015
No. 14-1134
DONALD L. KOCH AND KOCH ASSET MANAGEMENT, LLC,
PETITIONERS
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
On Petition for Review of an Order of
the Securities & Exchange Commission
Thomas O. Gorman argued the cause for the petitioners.
Dominick V. Freda, Senior Litigation Counsel, Securities
and Exchange Commission, argued the cause for the
respondent. Michael A. Conley, Deputy General Counsel,
John W. Avery, Deputy Solicitor, and Theodore J. Weiman,
Senior Counsel, were with him on brief.
Before: HENDERSON and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge:
The main purpose of the stock market is to make fools of as
many men as possible.
— Bernard M. Baruch
As an investment adviser, Donald Koch purchased stock
from three small banks and made trades to increase the price of
those shares immediately before the daily close of the stock
market. This piqued the market-manipulation antennae of the
Securities and Exchange Commission (SEC or Commission).
The SEC investigated Koch and his company, Koch Asset
Management (KAM), and eventually charged them both with
marking the close. Marking the close is investor argot for
buying or selling stock as the trading day ends to artificially
inflate the stock’s value. See Black v. Finantra Capital, Inc.,
418 F.3d 203, 206 (2d Cir. 2005). The SEC found that Koch
and KAM repeatedly marked the close and sanctioned them
accordingly. Although we agree with the Commission’s order
in large part, one of the SEC’s sanctions is impermissibly
retroactive and requires us to grant the petition in part and
vacate the order in part.
I. BACKGROUND
A. SECURITIES LEGISLATION
The Securities and Exchange Act of 1934 (Exchange Act)
“was intended principally to protect investors against
manipulation of stock prices through regulation of transactions
upon securities exchanges.” Ernst & Ernst v. Hochfelder, 425
U.S. 185, 195 (1976). To accomplish this goal, the Exchange
Act makes it unlawful for “any person,” in connection with the
purchase or sale of securities, “[t]o use or employ . . . any
3
manipulative or deceptive device or contrivance in
contravention of [SEC] rules.” 15 U.S.C. § 78j(b). The
Commission’s regulations, in turn, make it unlawful for “any
person,” in connection with the purchase or sale of securities,
“[t]o employ any device, scheme, or artifice to defraud” or
“[t]o engage in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon any
person.” 17 C.F.R. § 240.10b–5(a), (c).
The Investment Advisers Act of 1940 (Advisers Act)
proscribes nearly identical conduct. The Act makes it
unlawful for “any investment adviser” to “employ any device,
scheme, or artifice to defraud any client or prospective client”
or to “engage in any act, practice, or course of business which
is fraudulent, deceptive, or manipulative.” 15 U.S.C. § 80b–
6(1), (4). To implement these prohibitions, the SEC requires
investment advisers to “[a]dopt and implement written policies
and procedures reasonably designed to prevent violation[s]” of
the Advisers Act. 17 C.F.R. § 275.206(4)–7(a).
Like the crash in 1929, the wreckage wrought by the Great
Recession of 2008 produced calls for reform, ultimately
resulting in the Dodd–Frank Wall Street Reform and
Consumer Protection Act (Dodd–Frank Act), Pub. L. No.
111-203, 124 Stat. 1376 (2010). Before the Dodd–Frank Act,
the SEC could bar individuals who violated either the
Exchange Act or the Advisers Act from associating with
various people in the securities world, including stock brokers,
dealers and investment advisers. See 15 U.S.C.
§ 78o(b)(4)(F) (2006) (Exchange Act violator may be barred
from “associat[ing] with a broker or dealer”); id. § 80b–3(f)
(2006) (Advisers Act violator may be barred from
“associat[ing] with an investment adviser”). The Dodd–Frank
Act expanded this power. Now, the Commission may also bar
violators from associating with municipal advisors or
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“nationally recognized statistical rating organizations” (rating
organizations). See Dodd–Frank Act § 925(a). The SEC’s
enlarged authority created remedies that were “not previously
available under the securities laws” before the Dodd–Frank
Act. John W. Lawton, Advisers Act Release No. 3513, 2012
WL 6208750, at *5 (Dec. 13, 2012).
B. THE FACTS
Koch founded KAM in 1992 and was its sole investment
adviser, owner and principal. Koch’s investment strategy was
to buy stock from small community banks as long-term
investments. KAM used Huntleigh Securities Corporation, a
registered broker-dealer, to execute trades and maintain client
accounts. Although Catherine Marshall was Huntleigh’s
agent assigned to handle KAM’s, and Koch’s, business, Koch
contacted a trader at Huntleigh’s trading desk directly when he
wanted to make a trade. As of September 2009, Koch’s
contact at Huntleigh’s trading desk was Jeffrey Christanell.
In the wake of the 2008 market crash, Koch’s clients
became increasingly worried that their investments would
decline in value. Around the same time, Huntleigh began
allowing account holders, like Koch’s clients, to access their
account information online. This frustrated Koch because he
wanted his clients to get investment information from him, not
a website. He also worried that his clients would be
concerned if their online account information suggested that
their accounts were underperforming. To ensure that his
clients’ accounts appeared to retain their value, Koch allegedly
marked the close between September and December 2009 for
three small bank stocks: High Country Bancorp, Inc.; Cheviot
Financial Institution; and Carver Bancorp, Inc.
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Koch’s conduct aroused suspicions. A New York Stock
Exchange Arca investigator sent a letter to Huntleigh to
Marshall’s attention regarding Koch’s trading. The letter
specifically asked Huntleigh to provide information on its
policies and procedures for preventing traders from marking
the close. After receiving the letter, Marshall asked Koch
whether he had marked the close. Koch denied the allegations
and said, among other things, that he was simply trying to get
rid of some excess cash in a client’s account. Huntleigh
evidently did not buy this explanation, as it subsequently fired
Christanell for violating its trading policies and terminated its
relationship with KAM.
The SEC then launched an investigation into Koch’s
trading activity. In April 2011, it instituted proceedings
against KAM and Koch, charging both as primary violators
under the Exchange Act, the Advisers Act and their respective
implementing regulations. A hearing before an administrative
law judge (ALJ) followed. The ALJ found that Koch illegally
marked the close for High Country stock on September 30 and
December 31, and for Cheviot and Carver stock on December
31. The ALJ also found that Koch violated the Advisers Act
regulations by failing to follow KAM’s policies and
procedures designed to prevent Advisers Act violations.
Koch and KAM appealed the ALJ’s decision to the
Commission.
The Commission affirmed the ALJ’s decision in a 37-page
opinion. It reviewed a series of telephone conversations,
emails and other information related to Koch’s trading activity.
It found “compelling” evidence that Koch intended to
manipulate the trading price for all three bank stocks by
marking the close on September 30 and December 31.
Donald Koch & Koch Asset Management, LLC, Exchange Act
Release No. 72179, 2014 WL 1998524, at *10 (May 16, 2014)
6
(Order). It also determined that the expert testimony Koch
presented to the ALJ was unreliable and that Koch’s innocent
explanations for his trading activity failed to hold water. The
Commission ultimately issued five remedial orders to enforce
its decision; the one principally relevant here is its order
barring Koch from associating with “any investment adviser,
broker, dealer, municipal securities dealer, municipal advisor,
transfer agent, or nationally recognized statistical rating
organization.” Id. at *25. Koch timely petitioned this Court
for review. We have jurisdiction pursuant to 15 U.S.C.
§§ 78y(a), 80b–13(a).
II. ANALYSIS
Our standard of review is familiar: The Commission’s
findings of fact “if supported by substantial evidence” are
“conclusive.” Id. §§ 78y(a)(4), 80b–13(a). Substantial
evidence “does not mean a large or considerable amount of
evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quotation
marks omitted). The Commission’s “other conclusions may
be set aside only if arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” Graham v. SEC,
222 F.3d 994, 999–1000 (D.C. Cir. 2000) (citing 5 U.S.C.
§ 706(2)(A)) (quotation marks omitted). Additionally, we
“accord great deference to the SEC’s remedial decisions” and
will not disturb them unless they are “unwarranted in law or
without justification in fact.” Horning v. SEC, 570 F.3d 337,
343 (D.C. Cir. 2009) (alterations omitted).
Koch presses three arguments on appeal. First, he argues
that the SEC’s factual findings were not supported by
substantial evidence and that its legal conclusions misread the
governing statutes. Second, he claims that the Commission
7
erred in charging Koch as a primary violator under both the
Exchange Act and the Advisers Act. And third, he contends
that the Commission’s order barring him from associating with
municipal advisors or rating organizations is impermissibly
retroactive. We take each argument in turn.
A. APPLICATION OF LAW & SUFFICIENCY OF EVIDENCE
Koch’s primary argument on appeal is that the
Commission’s decision applied the wrong legal standard and is
not supported by substantial evidence. We think the contrary
is true: The Commission applied the correct standard and
properly concluded that there is ample evidence Koch
manipulated the market by marking the close.
As explained, the Exchange Act and the Advisers Act
prohibit fraudulent and manipulative conduct.
Market-manipulative behavior is “intentional or willful
conduct designed to deceive or defraud investors by
controlling or artificially affecting the price of securities.”
Ernst & Ernst, 425 U.S. at 199. Under Commission
precedent, a charge of marking the close consists of two
elements: (1) “conduct evidencing a scheme to mark the
close—i.e., trading at or near the close of the market so as to
influence the price of a security”; and (2) “scienter, defined as a
mental state embracing intent to deceive, manipulate, or
defraud.” Order, 2014 WL 1998524, at *9 & n.97 (collecting
cases). 1
1
Liability under the Advisers Act can also be premised on
negligence. See SEC v. Steadman, 967 F.2d 636, 643 n.5 (D.C. Cir.
1992) (citing SEC v. Capital Gains Research Bureau, Inc., 375 U.S.
180, 195 (1963)). Because neither party claims the Commission’s
decision turned on negligence, we assess Koch’s manipulative
intent.
8
The Commission relied on the following evidence to
conclude that Koch marked the close for High Country stock
on September 30 and December 31, 2009. On September 30,
KAM purchased nearly 2,000 shares of High Country stock,
“the vast majority in the last four minutes of trading.” Id. at
*9. These were the only trades that day involving High
Country and they pushed the stock’s closing price to $23.50
per share. Tellingly, High Country stock never traded above
$20 again in 2009.
In addition, Koch emailed Christanell on September 30
and told him to “move last [High Country] trade right before
3pm up to as near $25 as possible without appearing
manipulative.” Id. at *10 (emphasis added). Koch attempts
to downplay this smoking gun by arguing that he only meant to
tell Christanell to not “place large orders that could disturb the
[stock’s] price.” Pet’r’s Br. 41. Yet, as the Commission
rightly noted, “Koch’s instruction contains no information at
all about the size of incremental purchases that Christanell
should make.” Order, 2014 WL 1998524, at *10. And if
Koch were in fact concerned only with the size of the
purchases, it made little sense to include a gratuitous warning
to avoid appearing manipulative. His professed lawful intent
is also contradicted by Christanell’s testimony (which the SEC
credited) that Christanell placed last-minute bids for High
Country “to get the price up to where Koch asked him to get
it.” Id. (alterations omitted). In short, Koch’s explanation is
implausible.
Likewise, on December 31, KAM purchased 3,200 shares
of High Country stock “all within the last five minutes of
trading.” Id. This pushed the High Country closing price to
$19.50 on December 31, even though every other trade of High
Country stock that day was priced no higher than $17.50.
This evidence of marking the close is again buttressed by
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Koch’s emails to Christanell. On December 28, Koch
directed Christanell “to buy High Country 30 minutes to an
hour before the close of market for the year” and explained that
he wanted “to get a closing price for High Country in the 20–25
[dollar] range, but certainly above 20.” Id. (alterations
omitted). Koch’s intent could not have been plainer: buy
stock right before trading closes in order to drive up the price.
In other words, mark the close.
Moreover, a series of recorded phone calls between Koch
and Christanell on December 31 reinforces Koch’s intent.
Koch told Christanell that “my parameters for High Country
are—if you need 5,000 shares, do whatever you have to do—I
need to get it above 20, you know, 20 to 25, I’m happy.” Id. at
*11 (emphasis added; alterations omitted). Koch also
instructed Christanell to “just create prints,” which Christanell
testified he understood to mean “get the stock price up for the
last trade of the day.” Id. (quotation marks omitted). When
Christanell failed to get the price high enough before the
market closed, he apologized to Koch and said, “I know you
wanted it higher and I tried.” Id.As with the High Country stock, there is abundant
evidence to support the Commission’s conclusion that Koch
marked the close for Cheviot and Carver stock on December
31. Christanell, at Koch’s direction, engaged in a flurry of
trades for Cheviot stock only minutes before the market closed
on December 31. As the Commission explained:
Christanell placed orders for several thousand shares
of Cheviot in the final three minutes of trading.
KAM’s last execution from these orders was a
purchase of 200 shares at a price of $7.99 just seven
seconds before 3 p.m., Central time, but a later
non-KAM trade for Cheviot set the closing price for
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the stock at $7.39. At nine seconds after 3 p.m.,
Christanell placed another KAM order for additional
Cheviot shares, which almost immediately resulted in
three executions—two at $8.00 and one at $8.19.
These final three trades, however, came after the
official close of the market and therefore none of
them set the closing price.
Id. This burst of trading cannot be explained by anything
other than intent to mark the close. True, Christanell’s final
three trades ultimately failed to set the closing price. But
successful market manipulation is not equivalent to intent to
manipulate the market. See Markowski v. SEC, 274 F.3d 525,
529 (D.C. Cir. 2001) (“Just because a manipulator loses money
doesn’t mean he wasn’t trying [to manipulate].”). And
intent—not success—is all that must accompany manipulative
conduct to prove a violation of the Exchange Act and its
implementing regulations. See id. (the Congress has
“determin[ed] that ‘manipulation’ can be illegal solely because
of the actor’s purpose” (emphasis added)); accord Kuehnert v.
Texstar Corp., 412 F.2d 700, 704 (5th Cir. 1969) (“The
statutory phrase ‘any manipulative or deceptive device,’ seems
broad enough to encompass conduct irrespective of its
outcome.” (emphasis added; citation omitted)).
Additionally, phone calls between Koch and Christanell
on December 31 confirm Koch’s intent to mark the close on
Cheviot stock. Early in the day, Christanell told Koch that the
“bid-ask spread for Cheviot was $7.20 to $7.48.” Order, 2014
WL 1998524, at *12. After learning this, Koch told
Christanell to “move it to above 8—8, 8 and a quarter by the
end of the day.” Id. (quotation marks omitted). Koch
thought the move would be easy because Cheviot stock “trades
so little [and] I think you’ll be able to get it up pretty fast.” Id.When Christanell was unable to set the closing price at $8.00,
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Koch expressed disappointment but told Christanell, “Okay,
you did the best you can.” Id.Koch’s trading of Carver stock on December 31 followed
the same path. KAM purchased 200 shares of Carver stock,
the last of them “one-and-a-half minutes before the market
closed.” Id. The evidence before the Commission indicated
that KAM’s 200-share purchase was the only time that Carver
stock traded that day. In a give-and-take that by now sounds
familiar, Christanell informed Koch on December 31 that the
spread for Carver stock was $8.10 to $9.05. Koch then told
Christanell to “at the end of the day . . . pop that one [i.e.,
Carver]—to 9.05, if you have to.” Id. at 13 (alterations in
original). When Christanell proposed buying 300 shares of
Carver stock at $9.05 a share, Koch said, “That’s perfect. Just
make sure you get a print.” Id. (Recall, Christanell testified
that getting a “print” means getting a stock’s price up for the
last trade of the day, supra p. 9.) Before the ALJ, Christanell
testified that he purchased Carver stock on December 31
because “[Koch] wanted it to close at $9.05.” Id. (alterations
omitted).
In the face of this strong evidence that Koch marked the
close, Koch claims that the Commission committed three
specific errors. We are not convinced.
First, Koch claims that the Commission failed to find he
had the intent to deceive or manipulate the market. We are
puzzled by this claim because the Commission’s order
repeatedly made such findings. See id. at *10 (email is
“compelling direct evidence of [Koch’s] intent to mark the
close of High Country stock on September 30, 2009”); id.
(certain emails “offer strong support for [Koch’s] intent to
mark the close of High Country stock on December 31, 2009”);
id. at *11 (“The recorded telephone conversations between
12
Koch and Christanell on December 31, 2009, bolster the
already strong evidence of intent.”); id. at *12 (“[T]elephone
conversations are persuasive direct evidence of [Koch’s] intent
to mark the close of Cheviot stock on December 31, 2009.”);
id. at *13 (“We find further that [Koch] acted with scienter in
[his] purchase of Carver stock in the final minutes of the
trading day on December 31, 2009.”).
Koch repackages his argument by asserting that the SEC
presumed manipulative intent based solely on the fact that he
raised each stock’s price. Not true. As discussed, supra pp.
8–11, the Commission examined trading data, emails and
phone calls on September 30 and December 31 to determine
whether Koch intended to mark the close. The Commission’s
exhaustive review of the record refutes the notion that it
applied any conclusive presumption. In fact, the Commission
even acknowledged that “some of the trading at issue here,
standing alone, [could be seen] as consistent with legitimate
attempts to obtain illiquid stocks.” Order, 2014 WL 1998524,
at *16. The Commission’s acknowledgment that some of
Koch’s trades appeared legitimate “standing alone” highlights
that it applied no conclusive presumption to his case.
Second, Koch claims that the Commission ignored
evidence that he wanted “the most favorable terms [i.e., prices]
reasonably available” for the stocks—“best execution,” in
industry-speak. Newton v. Merrill, Lynch, Pierce, Fenner &
Smith, Inc., 135 F.3d 266, 270 (3d Cir. 1998). As the
Commission noted, Christanell did testify that he thought the
trades “represented best execution.” Order, 2014 WL
1998524, at *18 n.189 (quotation marks omitted). But the
Commission also pointed out that this testimony “cannot be
squared fully with [Christanell’s] testimony that these trades
were different from typical trading because they did not
involve trying to purchase [stocks] at the best price we can.”
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Id. (quotation marks and alteration omitted). Moreover,
Christanell’s understanding of best execution cannot override
the abundant direct and circumstantial evidence of Koch’s
manipulative intent. See supra pp. 8–11. The trading data,
emails and recorded phone conversations demonstrate that
Koch intended to raise the price of securities before the market
closed—an intent that is inconsistent with a desire to seek best
execution. 2
Third, Koch claims he could not be liable under the
Exchange Act and the Advisers Act unless the Commission
found that his trades had a “market impact.” Pet’r’s Br. 46.
Koch’s only authority for this proposition is Santa Fe
Industries, Inc. v. Green, 430 U.S. 462, 476 (1977). But Santa
Fe says nothing of the sort. All the Court said was that
“manipulation” is a “term of art” that refers to practices
“intended to mislead investors by artificially affecting market
activity.” Id. The Court did not, by this language, require the
SEC to prove actual market impact, as opposed to intent to
affect the market, before finding liability for manipulative
trading practices. Had the Court wished to impose such a
requirement, it would have said so clearly. Nevertheless,
assuming arguendo that Santa Fe imposes a market impact
requirement, it is met here. The entire premise of marking the
close is to increase a share’s price to an “artificially high level.”
Black, 418 F.3d at 206. That is consistent with the Court’s
2
Koch’s opening brief also claims that the Commission ignored
contradictory evidence from three witnesses regarding best
execution. Although Koch identifies the three witnesses by name,
he does not identify the pages in the record where the contradictory
testimony for two of them can be found. And while he explains
what he thinks is the contradictory evidence presented by the third
witness, Professor Jarrell, we agree with the Commission that his
testimony is flawed. See Order, 2014 WL 1998524, at *16–17.
14
definition of manipulation in Santa Fe, i.e., a practice designed
to “artificially affect[] market activity.” 430 U.S. at 476.
Accordingly, because there is substantial evidence that Koch
marked the close, there is also substantial evidence that he
“artificially affect[ed] market activity.” Id.; see also Order,
2014 WL 1998524, at *9–12 (explaining the inflated prices
Koch achieved on September 30 and December 31).
Much of Koch’s brief simply takes issue with how the
Commission interpreted the evidence before it. The SEC saw
a manipulative scheme to mark the close; Koch professes it
was an honest attempt to deal with a small and illiquid market.
We need not pick between these competing narratives.
Although Koch urges us to read the record differently, we may
not “supplant the agency’s findings merely by identifying
alternative findings that could be supported by substantial
evidence.” Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).
As we have remarked many times before, an agency’s
conclusion “may be supported by substantial evidence even
though a plausible alternative interpretation of the evidence
would support a contrary view.” Robinson v. NTSB, 28 F.3d
210, 215 (D.C. Cir. 1994); see also Domestic Sec. v. SEC, 333
F.3d 239, 249 (D.C. Cir. 2003) (“[T]he resolution of
conflicting evidence is for the Commission, not the court.”).
Consequently, it is the “rare” case in which we conclude that
an agency’s decision is not supported by substantial evidence.
Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C.
Cir. 2008); see also id. (“Substantial-evidence review is highly
deferential to the agency fact-finder.”). This case is not one of
them.
We conclude that the Commission applied the correct
legal standard and that there is substantial evidence to support
its decision.
15
B. KOCH QUA PRIMARY VIOLATOR
Koch next argues that he could not be charged as a primary
violator under either the Exchange Act or the Advisers Act.
His argument is premised on Janus Capital Group, Inc. v. First
Derivative Traders, 131 S. Ct. 2296 (2011), and the text of the
Advisers Act. He misreads both.
In Janus, the question before the Court was what
individual or entity could be liable for “mak[ing] any untrue
statement of a material fact” in violation of the Exchange Act
regulations. 131 S. Ct. at 2301. It held that “the maker of a
statement is the person or entity with ultimate authority over
the statement” and not “[o]ne who prepares or publishes a
statement on behalf of another.” Id. at 2302. Janus does not
apply here, however, because Koch was not charged with
making a statement. Rather, he was charged with marking the
close, which is not a statement but “a form of market
manipulation.” Order, 2014 WL 1998524, at *1. In other
words, Koch violated the securities laws not because of what
he said but because of what he did. Koch improperly
conflates those who make statements (at issue in Janus) with
those who employ manipulative practices (at issue here). Cf.
Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver,
N.A., 511 U.S. 164, 191 (1994) (“Any person or entity,
including a lawyer, accountant, or bank, who employs a
manipulative device or makes a material misstatement (or
omission) . . . may be liable as a primary violator.” (emphasis
added)). For this reason, Janus is inapplicable if the alleged
Exchange Act violations turn not on statements but on
manipulative conduct. See SEC v. Monterosso, 756 F.3d
1326, 1334 (11th Cir. 2014) (per curiam) (“Janus has no
bearing” because “[t]he case against [appellants] did not rely
on their ‘making’ false statements, but instead concerned their
commission of deceptive acts”).
16
Koch’s argument regarding the Advisers Act’s text is also
flawed. He claims that only advisers who are registered with
the SEC can be primary violators under the Advisers Act.
Because KAM, not Koch, is the only adviser registered with
the SEC, he maintains that he cannot be a primary violator
under the Advisers Act. The Advisers Act, however, draws
no such distinction. That Act makes it unlawful for “any
investment adviser” to “employ any device, scheme, or artifice
to defraud any client or prospective client” or to “engage in any
act, practice, or course of business which is fraudulent,
deceptive, or manipulative.” 15 U.S.C. § 80b–6(1), (4)
(emphasis added). The Advisers Act, in turn, defines
investment adviser as “any person who, for compensation,
engages in the business of advising others . . . as to the value of
securities or as to the advisability of investing in, purchasing,
or selling securities,” subject to exceptions not relevant here.
Id. § 80b–2(a)(11) (emphasis added). The definition of
investment adviser does not include whether one is registered
or not with the SEC. Hence, Koch could be primarily liable
for violating the Advisers Act irrespective of registration with
the Commission. See United States v. Onsa, 523 F. App’x 63,
65 (2d Cir. 2013) (“[T]he structure of the [Advisers] Act
demonstrates that individuals need not register, or even be
required to register, in order to be an ‘investment adviser’
within the meaning of the Act.”).
Accordingly, we hold that Koch was properly charged as a
primary violator under both the Exchange Act and the Advisers
Act.
C. APPLICABILITY OF DODD–FRANK ACT
Koch’s final argument is that the Commission could not
use the remedial provisions of the 2010 Dodd–Frank Act to
17
punish him for conduct that took place in 2009. Doing so, he
claims, is impermissibly retroactive. We agree that the
Commission impermissibly applied the Dodd–Frank Act
retroactively by barring Koch from associating with municipal
advisors and rating organizations.3
“[T]he presumption against retroactive legislation is
deeply rooted in our jurisprudence, and embodies a legal
doctrine centuries older than our Republic.” Landgraf, 511
U.S. at 265. It generally requires “that the legal effect of
conduct should ordinarily be assessed under the law that
existed when the conduct took place.” Id. But retroactive
legislation is not per se unlawful. Indeed, “[r]etroactivity
provisions often serve entirely benign and legitimate
purposes.” Id. at 267–68. Absent a constitutional violation,
“the potential unfairness of retroactive civil legislation is not a
sufficient reason for a court to fail to give a statute its intended
scope.” Id. at 267. Nevertheless, to lessen the inherent
unfairness of retroactive application, courts do not enforce a
statute retroactively unless the “Congress first make[s] its
intention clear.” Id. at 268. Our first task, then, is to
3
Koch also argues that applying the Dodd–Frank Act to him is
impermissibly retroactive because it changed the Commission’s
procedures for imposing sanctions. It is true that under the Act, the
SEC may bar Koch from associating with all industries in the
securities market in one proceeding, whereas before the Act the
Commission had to initiate “follow-on proceeding[s]” for separate
industries in the securities market. See Lawton, 2012 WL 6208750,
at *5. This change in procedure, however, does not give rise to
retroactivity concerns. See Landgraf v. USI Film Prods., 511 U.S.
244, 275 (1994) (“Because rules of procedure regulate secondary
rather than primary conduct, the fact that a new procedural rule was
instituted after the conduct giving rise to the suit does not make
application of the rule at trial retroactive.”).
18
determine “whether Congress has expressly prescribed the
statute’s proper [temporal] reach.” Id. at 280.
The provision of the Dodd–Frank Act permitting the
Commission to bar an individual from associating with
municipal advisors or rating organizations contains no mention
of retroactive application. See Pub. L. No. 111-203, § 925(a).
The closest the Act comes is its generic statement that
“[e]xcept as otherwise specifically provided in this Act,” the
Act’s provisions “shall take effect 1 day after the date of
enactment.” Id. § 4. But this language says nothing about
retroactivity. As the Court noted in Landgraf, “A statement
that a statute will become effective on a certain date does not
even arguably suggest that it has any application to conduct
that occurred at an earlier date.” 511 U.S. at 257. Because
the Dodd–Frank Act does not expressly authorize retroactive
application, we must determine whether applying it to Koch
“would impair rights [he] possessed when he acted, increase
[his] liability for past conduct, or impose new duties with
respect to transactions already completed.” Id. at 280.
At the time Koch engaged in manipulative conduct, that is,
from September through December 2009, the SEC could not
bar an individual or entity from associating with municipal
advisors or rating organizations. See Lawton, 2012 WL
6208750, at *5 (noting those remedies “[were] not . . . available
under the securities laws” before Dodd–Frank Act). The
Commission’s decision to nevertheless apply the Act’s new
penalty to Koch “attach[ed] a new disability to conduct over
and done well before [its] enactment.” Vartelas v. Holder,
132 S. Ct. 1479, 1487 (2012) (quotation marks omitted).
Indeed, by including additional associations from which one
could be barred, the Act enhanced the penalties for a violation
of the securities laws. The result is the same even if we ask
the slightly different question “whether the new provision
19
attaches new legal consequences to events completed before its
enactment.” Landgraf, 511 U.S. at 270. Applying the Act to
Koch “attache[d] new legal consequences” to his conduct by
adding to the industries with which Koch may not associate.
Id. The additional prohibitions are legally enforceable and
thereby create new legal consequences for past conduct.
Hence, applying the Dodd–Frank Act’s enhanced penalties to
Koch is impermissibly retroactive.
The SEC identifies two cases that purportedly suggest the
Dodd–Frank Act is not impermissibly retroactive. See
Kansas v. Hendricks, 521 U.S. 346 (1997); Boniface v. DHS,
613 F.3d 282 (D.C. Cir. 2010). Both cases, however, held that
there was no retroactivity problem because each subsequently
enacted provision created only an evidentiary presumption.
Hendricks, 521 U.S. at 371 (“To the extent that past behavior is
taken into account, it is used, as noted above, solely for
evidentiary purposes.”); Boniface, 613 F.3d at 288 (regulation
only creates “an evidentiary presumption that an applicant with
a disqualifying conviction in his past poses a security threat in
the present; the applicant may rebut that presumption through
the waiver process” (quotation marks omitted)). Here, by
contrast, Koch’s past conduct automatically triggered
additional legal consequences, not existing at the time his
conduct took place, that prevent him from associating with
rating organizations or municipal advisors.
Accordingly, we conclude that the Commission cannot
apply the Dodd–Frank Act to bar Koch from associating with
municipal advisors and rating organizations because such an
application is impermissibly retroactive. This holding does
not apply to the other securities industries with which Koch
may not associate.
20
* * *
For the foregoing reasons, the petition for review is
granted in part and denied in part and the portion of the SEC
order that is impermissibly retroactive as described herein is
vacated.
So ordered.