SEC rejects settlement with hedge fund billionaire

The Securities and Exchange Commission has rejected a preliminary settlement that its enforcement staff reached with hedge fund billionaire Philip Falcone, in part because some commissioners concluded that the deal was not tough enough.

The rejection was announced Friday in a brief public filing by Falcone’s company, Harbinger Group.

The settlement would have barred Falcone from critical hedge fund activities for two years such as raising new funds or being involved in dealmaking through his firm.

But the deal did not require Falcone to admit wrongdoing, and it allowed him to remain chief executive of Harbinger Group. Among the sticking points for some commissioners was that the agreement did not bar Falcone from serving as an officer in a public company, people familiar with the commission’s thinking said.

It is unusual for the SEC to reject a settlement recommended by its enforcement division. Typically the division’s lawyers and agency’s commissioners debate the terms of a settlement before it is brought up for a vote, they said.

But SEC Chairman Mary Jo White has pledged a get-tough-on-Wall Street approach by the agency since taking the helm in April.

In June, White said the agency would start requiring more defendants to admit guilt in certain types of civil settlements, and the agency told its staff that defendants engaged in “egregious intentional misconduct” may justify admissions, as would obstruction of an SEC investigation or “misconduct that harmed large numbers of investors.” The SEC had been harshly criticized by some judges for using boilerplate in many settlements that did not require an admission of guilt from defendants.

It is unclear whether this new policy is at play in the Falcone case. Neither Falcone nor the SEC could be reached for comment. Harbinger learned of the commission’s decision late Thursday, according to the company’s public filing.

The preliminary settlement deal, which was disclosed by Harbinger in May, also would have required Falcone’s hedge fund, Harbinger Capital Partners, to pay $18 million to settle two civil lawsuits brought last year by the SEC.

The settlement needed approval from the SEC’s five commissioners and a federal court.

The agency accused Falcone of leading a “lavish lifestyle” while working to limit the ways clients could pull out of their investments. In one instance, Falcone took out a $113.2 million loan from one of his hedge funds to pay personal taxes while most of the fund’s investors were unable to access their money.

The agency also alleged that Falcone and others in his firm manipulated the bond prices of Maax, which manufactures bathroom fixtures.

The agreement struck by the SEC’s enforcement division called for Falcone to pay $4 million of the $18 million fine — likely a tiny portion of his net wealth — and for Harbinger Capital to pay the rest, according to a person familiar with the matter, who spoke on the condition of anonymity because the settlement is not final.

Falcone’s fame grew quickly on Wall Street after he bet against subprime mortgages just before those loans sparked a credit crisis that threatened to topple the financial system.

He used his wealth to gain allies in Washington, critics say, contributing to both Democratic and Republican campaigns. And he frequented Washington as he attempted to push through a venture called LightSquared, which proposed using satellites to create a cellular network that could compete with those of AT&T and Verizon.

Falcone’s $3 billion bet on LightSquared proved ill-fated. The Federal Communications Commission, after initially embracing the plan, turned on it last year after other federal agencies complained that the technology could interfere with GPS devices and airplane systems.

Dina ElBoghdady covers housing policy for The Washington Post.
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