Peter Siris v. SEC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2014 Decided December 2, 2014
No. 14-1018
PETER SIRIS,
PETITIONER
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
On Petition for Review of an Order of
the Securities & Exchange Commission
M. William Munno argued the cause and filed the briefs for
petitioner.
Jacob R. Loshin, Senior Counsel, Securities and Exchange
Commission, argued the cause for respondent. With him on the
brief were Michael A. Conley, Deputy General Counsel, John W.
Avery, Deputy Solicitor, and Randall W. Quinn, Assistant
General Counsel.
Before: ROGERS and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Securities and Exchange
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Commission filed a civil complaint against Peter Siris, alleging
he committed various securities law violations. Voluntarily
settling the suit, Siris agreed in a consent judgment that in any
related administrative proceeding before the Commission he
would not contest the allegations of the civil complaint.
Thereafter, the Commission commenced a follow-on proceeding
against Siris to determine whether a remedial sanction was in the
public interest and ordered that Siris be permanently barred from
the securities industry and from participating in any offering of
penny stock.
In Blinder, Robinson & Co. v. SEC, 837 F.2d 1099 (D.C.
Cir. 1988), the court emphasized that, in a follow-on sanctions
proceeding, the Commission must abide by a “clear distinction”
between the district court’s determination of a petitioner’s
liability under the securities laws and evidence about the
circumstances surrounding his misconduct “germane to the
[Commission] in exercising its judgment as to the nature and
scope of sanctions that are appropriate in the public interest.”
Id. at 1109. As regards the appropriate sanction, the court
instructed that “evidence relevant to a party’s degree of
culpability must be considered in deciding that issue.” Id. But
the court explained that it was “in no way” suggesting that the
petitioner could, in a follow-on sanctions proceeding, relitigate
the factual issues “conclusively decided” in the underlying civil
suit. Id.
Siris seeks vacatur of the Commission’s order imposing a
lifetime bar on the ground that the Commission contravened the
court’s instruction in Blinder by refusing to consider the entire
record and mitigating evidence he proffered regarding the
appropriate sanction. Review of the administrative record
indicates that Siris sought, in effect, “to relitigate the factual
question[s],” id., that he agreed in the consent judgment not to
challenge directly or indirectly. Although the factual allegations
3
in the complaint against Siris were not adjudicated after an
evidentiary hearing, the terms of the consent judgment rendered
those facts “conclusively decided,” id., for purposes of the
subsequent administrative proceeding. The Commission
considered the relevant record, including Siris’ evidence of the
circumstances surrounding his misconduct that did not, in effect,
seek to challenge the allegations of the complaint. For these
reasons, and consistent with the deference due to the
Commission’s choice of sanction, we deny the petition for
review.
I.
Peter Siris founded and was a managing member of Guerilla
Capital Management, LLC, an investment adviser to two funds
Siris established that invest in Chinese companies listed on U.S.
stock exchanges. Siris also founded Hua Mei 21st Century,
LLC, a consulting firm. On July 30, 2012, the Securities and
Exchange Commission (“Commission”) filed a civil complaint
against Siris, Guerilla, and Hua Mei in federal district court,
alleging that they repeatedly engaged in insider trading and
other securities-related misconduct. Many of the allegations
involved Siris’ relationship with China Yingxia International,
Inc. (“China Yingxia”), a health food company with operations
in China. The complaint alleged:
• Siris sold China Yingxia stock in violation of the
holding period, registration, and other requirements for stock
resale set forth in Section 5 of the Securities Act, 15 U.S.C.
§§ 77e(a), (c). Compl. ¶¶ 32-47.
• Siris acted as an unregistered broker in violation of
Section 15(a)(1) of the Securities Exchange Act, 15 U.S.C.
§ 78o(a)(1), by “raising over $2 million worth of investments
[for China Yingxia] in exchange for transaction-based
4
compensation.” Compl. ¶ 49.
• In February and March 2009 Siris “with scienter,”
Compl. ¶¶ 140, 144, repeatedly engaged in insider trading in
China Yingxia stock, in violation of Section 10(b) of the
Securities Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17
C.F.R. § 240.10b5-1, promulgated thereunder. Compl. ¶¶ 73,
78-87, 90. During two episodes, Siris traded China Yingxia
stock after receiving from China Yingxia a letter and draft press
release containing material, nonpublic information about the
company. Compl. ¶¶ 78-82, 83-87. Siris knew he was not
permitted to trade the stock while in possession of such
information. Compl. ¶ 74.
• Siris made misrepresentations and omitted material
information in communications with his funds’ investors in
violation of Section 206(4) of the Investment Advisers Act, 15
U.S.C. § 80b-6(4), and Rule 206(4)-8, 17 C.F.R. § 275.206(4)-8,
promulgated thereunder. Compl. ¶¶ 6, 92-100. Siris’
communications about problems at China Yingxia omitted
mention of Siris’ own role in the company’s failings, and “gave
the false and misleading impression that others should be sued
for the very conduct in which Siris himself engaged.” Compl.
¶ 99.
• Between July 2009 and December 2010 Siris engaged
in extensive insider trading in connection with ten confidential
securities offerings. Compl. ¶¶ 7, 101-27. In advance of each
offering, Siris or his firm was confidentially solicited by a
broker-dealer and given access to material, nonpublic
information after agreeing not to trade the security while in
possession of the information. Compl. ¶ 104. Siris then sold or
sold short the issuers’ securities prior to the public
announcement of the offerings, thus profiting from the
securities’ decline in value upon announcement. Compl. ¶¶ 7,
5
101-27. With respect to at least one of the ten offerings, Siris
also knowingly or recklessly made a materially false
representation in a securities purchase agreement. Compl. ¶¶ 8,
128-33, 139.
• Siris violated Rule 105 of Regulation M, 17 C.F.R.
§ 242.105, by making short sales during the five business days
before pricing in two securities offerings in which he
participated. Compl. ¶¶ 9, 134-37.
The district court entered a final judgment permanently
enjoining Siris from violating the aforementioned securities laws
and ordering him to pay disgorgement and a civil penalty. SEC
v. Siris, et al., No. 12 Civ. 5810 (S.D.N.Y. Sept. 18, 2012).
Siris, who was represented by counsel, consented to entry of the
final judgment, signing the judgment and acknowledging his
signature before a notary public. Although the consent
judgment recited that Siris did not admit or deny the allegations
of the complaint (except as to the district court’s jurisdiction),
he agreed that “in any disciplinary proceeding before the
Commission based on the entry of the injunction in this action,
[he] underst[oo]d that [he] shall not be permitted to contest the
factual allegations of the complaint.” Consent J. ¶ 9. Siris also
agreed “not to take any action . . . denying, directly or indirectly,
any allegation in the complaint or creating the impression that
the complaint is without factual basis.” Id. ¶ 10.
Ten days later, the Commission commenced an
administrative proceeding against Siris to determine whether a
remedial sanction was necessary to protect the public interest.
See 15 U.S.C. § 78o(b)(6)(A); id. § 80b-3(f). Siris filed an
answer setting forth his defenses and attached an affidavit
explaining corrective actions he had taken to prevent his
committing further securities violations. An administrative law
judge (“ALJ”), noting that “[a]ll material facts that concern the
6
activities for which Siris was enjoined were decided against him
in the civil case on which this proceeding is based,” and taking
as true “[a]ny other facts in [Siris’] pleadings” that did not
attempt to relitigate facts established in the civil case, granted
the Enforcement Division’s motion for summary disposition
and permanently barred Siris from the securities industry and
from participating in any offering of penny stock. See In re
Peter Siris, SEC Rel. No. 477, 2012 WL 6738469, at *1, *5
(ALJ Dec. 31, 2012).
Siris petitioned the Commission for review on the ground
that the ALJ erred by ignoring his proffered evidence about the
circumstances surrounding his alleged misconduct as well as
corrective efforts he had taken to prevent future violations.
The Commission denied Siris’ petition. Because it was
undisputed that, at the time of Siris’ alleged misconduct, he was
participating in an offer of penny stock (China Yingxia) and was
associated with an investment adviser (Guerilla Capital), the
threshold statutory requirements for the imposition of remedial
sanctions were satisfied. See 15 U.S.C. §§ 78o(b)(6)(A),
80b-3(f). The Commission was thus left to consider “whether,
and to what extent, sanctions [we]re in the public interest.” In
re Peter Siris, SEC Rel. No. 71068, 2013 WL 6528874, at *5
(Dec. 12, 2013). The Commission reiterated its
“well-established” policy that a respondent in a follow-on
administrative proceeding “may put forward mitigating evidence
concerning the circumstances surrounding his underlying
misconduct,” but emphasized that, where, as here, Siris
consented to an injunction, he could not contest the complaint’s
allegations. Id. at *8. In accord with that policy, the
Commission rejected most of Siris’ arguments on the ground
that they contradicted the complaint.
Considering the entire relevant record and applying the
7
multifactor test set forth in Steadman v. SEC, 603 F.2d 1126,
1140 (5th Cir. 1979), aff’d on other grounds, 450 U.S. 91
(1981), the Commission concluded that an industry-wide bar
was in the public interest. The Commission explained that Siris’
conduct “included numerous instances of insider trading over
the course of almost two years” and “securities fraud through
material misrepresentations,” and “resulted in ill-gotten gains of
over half-a-million dollars.” In re Peter Siris, 2013 WL
6528874, at *6. Moreover, in light of Siris’ multiple insider
trading violations and the fact that he knew he could not trade
while in possession of material, nonpublic information, Siris’
misconduct was undertaken with scienter.
The Commission acknowledged the steps Siris had taken to
avoid future misconduct, such as ceasing to participate in
offerings, establishing trading compliance protocols, appointing
a chief compliance officer, and maintaining a list of restricted
securities. Id. But the Commission concluded that such
voluntary measures would not adequately guard against future
violations, and that “accepting the sincerity of Siris’s assurances
against future misconduct does not mean,” as he suggested, “that
‘there [was] no risk of future misconduct warranting a bar.’” Id.
The Commission likewise rejected Siris’ proposal that he be
subjected to sanctions short of industry-wide debarment –
namely, that he continue to refrain from participating in
offerings, accepting consulting assignments, or acting in certain
capacities – noting “the practical difficulties in enforcing
compliance with such a proposal,” id. at *6 n.43 (internal
quotation marks omitted), and emphasizing “the nature of
[Siris’] misconduct and the opportunity that continued
participation in the industry would present for future violations,”
id. In particular, Siris’ agreeing not to serve as a portfolio
manager or investment adviser to a managed account “does not
ensure the protection of investors, because the allegations
supporting the injunction involve a broad array of misconduct
8
not unique to service [in those positions].” Id. at *7 (internal
quotation marks omitted). The Commission also highlighted
“[t]he flagrant manner in which Siris . . . violated the terms of
his consent [judgment],” which gave the Commission “pause
about relying upon his assurances against future misconduct,
even accepting them as sincere.” Id. In addition, the
Commission made clear its view that, given Siris’ continued
argument that his conduct did not in fact amount to violations of
the securities laws, Siris had not meaningfully recognized the
wrongful nature of his conduct. Id. Siris petitions for review.
II.
Siris contends that the Commission “erred as a matter of
law, acted arbitrarily and capriciously, and grossly abused its
discretion” by “failing to consider the entire record” and by
“asserting that Siris was precluded by the consent judgment
from asking the Commission to weigh the entire record in
determining whether a bar was necessary to protect the public
interest.” Pet’r’s Br. 45 (emphases in original). In his view, a
lifetime bar was unnecessary to protect the public interest in
light of his corrective efforts and demonstrated willingness to
accept more modest remedial sanctions.
The court has jurisdiction over Siris’ petition under Section
25(a)(1) of the Securities Exchange Act, 15 U.S.C. § 78y(a)(1),
and Section 213(a) of the Investment Advisers Act, id.
§ 80b-13(a). Pursuant to that authority, the court may “affirm or
modify and enforce or . . . set aside the [Commission’s] order in
whole or in part.” 15 U.S.C. § 78y(a)(3); accord id.
§ 80b-13(a). In reviewing the Commission’s decision imposing
on Siris an industry-wide lifetime bar, the court’s review is
limited to determining whether the sanction was “‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’” KPMG, LLP v. SEC, 289 F.3d 109, 121
9
(D.C. Cir. 2002) (quoting 5 U.S.C. § 706(2)(A)). Further, “[t]he
Supreme Court has long instructed that the Commission’s choice
of sanction shall not be disturbed by the court unless the
sanction is either ‘unwarranted in law or is without justification
in fact.’” Id. (quoting Am. Power & Light Co. v. SEC, 329 U.S.
90, 112-13 (1946)). Our review is deferential: “‘It is a
fundamental principle . . . that where Congress has entrusted an
administrative agency with the responsibility of selecting the
means of achieving the statutory policy the relation of remedy
to policy is peculiarly a matter for administrative competence.’”
Kornman v. SEC, 592 F.3d 173, 186 (D.C. Cir. 2010) (quoting
Am. Power & Light, 329 U.S. at 112). “Because of the
Commission’s ‘accumulated experience and knowledge[,] . . .
[i]ts judgment is entitled to the greatest weight.’” Id.
(alterations in original) (quoting Am. Power & Light, 329 U.S.
at 112).
Granting due deference to the Commission’s choice of
sanction, we conclude that the Commission did not abuse its
discretion in imposing on Siris a lifetime bar. The Commission
justifiably rebuffed Siris’ proffered evidence contradicting the
allegations of the complaint, which he voluntarily agreed not to
contest. The Commission gave sufficient attention to any
mitigating evidence. Siris has not shown that the Commission’s
imposition of a lifetime bar was unwarranted as a matter of law
or unjustified in fact.
A.
In an administrative proceeding following an injunctive
action, the petitioner may not relitigate those factual questions
conclusively decided in the underlying civil suit, but the
Commission must consider mitigating evidence proffered by the
petitioner about the circumstances surrounding his misconduct.
Blinder, 837 F.2d at 1109-10; see also Kornman, 592 F.3d at
187-88. Our opinion in Blinder, 837 F.2d 1099, illustrates how
10
the Commission should apply this principle. In that case, the
district court in a civil suit rejected the petitioner’s argument
that, in undertaking a course of alleged misconduct, he had
relied in good faith on counsel’s advice; the court thus found
that he violated various securities laws. Id. at 1109. This court
held that the petitioner was entitled, in the Commission’s
follow-on administrative proceeding, to proffer mitigating
evidence, such as why he rejected counsel’s advice, which
attorney’s advice he rejected, and whether the advice he
received was absolute or equivocal. Id. at 1110. But the court
emphasized that it was “in no way suggesting” that the petitioner
was free to contend that he had relied on counsel, because the
district court, in the underlying proceeding, had found to the
contrary. Id. at 1109.
The Commission was entitled to rely on the allegations of
the complaint in deciding whether or not imposition of a lifetime
bar on Siris was in the public interest. A consent judgment is a
judgment of the court, “a judicial decree that is subject to the
rules generally applicable to other judgments and decrees.”
Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992).
By virtue of the consent judgment, Siris was ordered “not . . . to
contest the factual allegations of the complaint” in “any
disciplinary proceeding before the Commission based on the
entry of the injunction in this action.” Consent J. ¶ 9. The
consent judgment stated he “underst[oo]d” that bar, id., but even
if he did not, it is still enforceable as part of the judgment.
Likewise, Siris was ordered “not to take any action . . . denying,
directly or indirectly, any allegation in the complaint or creating
the impression that the complaint is without factual basis.” Id.
¶ 10. Whether or not issues established in the consent judgment
were “actually litigated” for purposes of estoppel, the
Commission’s application of factual preclusion in the follow-on
proceeding was appropriate because the judgment
unambiguously barred Siris from making any future challenge
11
to the allegations in the complaint. See Amador Cnty. v.
Salazar, 640 F.3d 373, 384 (D.C. Cir. 2011); see also SEC v.
Citigroup Global Mkts., Inc., 752 F.3d 285, 295 (2d Cir. 2014);
Elliott v. SEC, 36 F.3d 86, 87 (11th Cir. 1994) (per curiam).
It was also permissible for the Commission to reject Siris’
purported mitigation evidence that, in reality, constituted a
collateral attack on the consent judgment. Kornman, 592 F.3d
at 186-87; Blinder, 837 F.2d at 1109-10. For instance, the
Commission could properly refuse to credit Siris’ assertions that
he did not make trades based on any information in a letter and
draft press release he received from China Yingxia, and that the
correspondence did not disclose material, nonpublic
information, because those assertions directly contradict
allegations in the complaint. See Compl. ¶¶ 4, 73, 80-81, 83, 87.
Siris also maintains that the Commission “made improper
credibility determinations and discounted [his mitigating]
evidence from the record as ‘self-serving.’” Pet’r’s Br. 48
(quoting In re Peter Siris, 2013 WL 6528874, at *9 n.60). But
the evidence the Commission described as “self-serving” was
proffered by Siris to show that he did not commit insider trading
with scienter or possess material, nonpublic information. As
such, that evidence constituted an impermissible collateral
attack on the consent judgment, and the Commission could
properly refuse to consider it.
B.
The Commission likewise did not abuse its discretion in
concluding that a lifetime bar was necessary to protect the public
interest. See 15 U.S.C. § 78o(b)(6)(A); id. § 80b-3(f). Taken
together, the complaint’s allegations and the record evidence
that does not conflict with the consent judgment make clear that
the Commission’s choice of sanction was well within its broad
discretion. See Kornman, 592 F.3d at 186.
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As a preliminary matter, Siris maintains that the
Commission automatically imposed a lifetime bar in light of his
settlement of the injunctive action. But the Commission
expressly confirmed that “it is not [the Commission’s] view that
[Siris’] consenting to an antifraud injunction in the district court
automatically means a bar is appropriate.” In re Peter Siris,
2013 WL 6528874, at *11 n.71 (internal quotation marks
omitted). Rather, the Commission considered the entire relevant
record, addressed Siris’ arguments against the lifetime bar, and
cogently applied Steadman’s multifactor test, 603 F.2d at 1140.
See PAZ Secs., Inc. v. SEC, 566 F.3d 1172, 1175 (D.C. Cir.
2009).
As the Commission explained, Siris’ conduct was egregious
and recurrent, not isolated. See Steadman, 603 F.2d at 1140-41.
Siris maintains that “none of [his] trades remotely resembled
insider trading that merits a lifetime bar” and that he “did not
seek inside information and did nothing to obtain material
nonpublic information.” Pet’r’s Br. 56. Insofar as Siris sought
to collaterally attack the consent judgment, essentially taking
issue with the allegations he was ordered not to challenge, the
Commission was justified in refusing to consider Siris’
contention. To the extent Siris is arguing that his actions were
not egregious, in light of the serious and repeated wrongdoings
set forth in the complaint, the Commission did not abuse its
discretion in rejecting that argument.
Siris further maintains that the Commission ignored the
purportedly mitigating evidence that the resignation of China
Yingxia directors, which was made public before the offering of
China Yingxia stock, also impacted China Yingxia’s stock price.
Even assuming these facts are true, Siris does not assert that he
actually decided to trade based on this public information
instead of his insider knowledge, which might be relevant to his
“degree of culpability.” Blinder, 837 F.2d at 1109. Rather,
13
Siris’ suggestion that the Commission should have considered
the public information’s impact on share price contradicts the
complaint’s allegation that all of his ill-gotten gains from the
sale of China Yingxia shares were caused by his trading in
nonpublic information. Compl. ¶¶ 82, 89, 91. Moreover, even
if Siris had traded based on the public information his
culpability would be only minimally diminished because he still
violated the securities laws, see 17 C.F.R. § 240.10b5-1, and he
knew that he was not permitted to trade while in possession of
material, nonpublic information, Compl. ¶ 74. Likewise, even
if Siris is correct that his funds invested only a small portion of
their money in China Yingxia and that he disclosed information
about China Yingxia’s problems to his investors, the
Commission explained that those facts do not negate Siris’
culpability, particularly because he “failed to reveal his own role
in China Yingxia and ‘gave the false and misleading impression
that others should be sued for the very conduct in which Siris
himself engaged.’” In re Peter Siris, 2013 WL 6528874, at *9
n.59 (quoting Compl. ¶ 99).
The record also supports the Commission’s conclusion that
Siris’ misconduct involved scienter. The complaint alleged that
many of Siris’ violations were intentional or reckless, he
repeatedly violated the securities laws, and he knew he could not
trade while in possession of material, nonpublic information
about an offering. See Compl. ¶¶ 127, 133, 139-40, 144. With
respect to those violations that did not require scienter, Siris’
conduct was replete with fraud and deception. See, e.g., Compl.
¶¶ 40-41, 60-62. Likewise, the Commission justifiably
concluded that Siris had not meaningfully recognized the
wrongful nature of his conduct. The Commission observed, for
instance, that Siris continued to contest the factual bases for the
securities law violations alleged in the complaint, with
“flagrant” disregard for the consent judgment. In re Peter Siris,
2013 WL 6528874, at *7. The Commission also acknowledged
14
the steps Siris had taken to avoid future wrongdoing, but in its
judgment determined that if Siris were permitted to return to the
securities industry, there still would be a meaningful risk that he
would commit future violations, given the nature of his
misconduct and his ongoing attempts to contest the facts set
forth in the complaint. Id. at *6-7.
Siris nonetheless faults the Commission for rejecting his
offer to voluntarily submit to certain lesser sanctions. Because
permanent debarment “is not the only remedy at the
Commission’s disposal that acts as a deterrent,” the Fifth Circuit
Court of Appeals concluded in Steadman that “[t]he
Commission should articulate why a lesser sanction would not
sufficiently discourage others from engaging in the unlawful
conduct it seeks to avoid.” 603 F.2d at 1142. This Court,
however, has “quoted Steadman only for the well-established
rule that an agency must adequately explain its decisions,” and
has not required the Commission to analyze all potential
alternative sanctions. PAZ Secs., 566 F.3d at 1176; see also
Kornman, 592 F.3d at 188. As discussed, the Commission gave
adequate reasons for concluding that Siris’ permanent and
industry-wide debarment was in the public interest, and the
Commission did not abuse its discretion in refusing Siris’ offer
to submit to various alternative sanctions.
Accordingly, we deny the petition for review.