The Supreme Court yesterday agreed to review the Securities and Exchange Commission's censure of the securities analyst who exposed one of Wall Street's worst scandals, the 1973 Equity Funding Corp. fraud.
The private analyst, Raymond L. Dirks, was hailed as a whistleblower at the time of the scandal. Later, however, the SEC charged that before blowing the whistle to the general public, Dirks tipped off selected investors who were able to unload their Equity Funding stock before its collapse.
The case, the subject of unusual infighting between the Justice Department and the SEC, focuses on one of the most unsettled and difficult aspects of securities law: the provisions that ban trading or profiting on the basis of "inside information" not available to the general investing community. It is considered a followup to a 1980 Supreme Court decision (Chiarella vs. U.S.) on insider trading.
In March, 1973, Dirks received a tip from a former executive of Equity Funding, then a high-flying stock, that most of the insurance policies it reported as sold were nonexistent. Dirks went to a Wall Street Journal reporter with the information.
But he also told some large institutional investors who were then able to unload about $17 million worth of shares before the company collapsed, according to the government. The SEC said the institutions' investment advisers then directed new business to Dirks.
The agency successfully sought censure of Dirks for violating the insider trading law.
Dirks failed in an appeal to the U.S. Court of Appeals for the District of Columbia. He argued that as an analyst receiving information from ex-employes, he had no responsibility to adhere to restrictions on "insider" information.
Even if he did, he contended that he had taken all steps possible to make the information public and that the law was never intended to protect evidence of criminal activity. If the lower court ruling is allowed to stand, he told the Supreme Court, it will place "severe limits" on professionals "engaging in the normal activities of securities analysts."
The Justice Department split with the SEC on the case, inserting an extraordinary footnote in the SEC's brief to the court in Dirks vs. SEC, saying the agency's action could have an "adverse effect on federal criminal law enforcement."
"There is no basis for viewing Dirks' conduct as fraudulent," Solicitor General Rex E. Lee said in the footnote.
The court also granted review yesterday in an important labor relations case (NLRB vs. Trans. Management Corp.), which could determine how easily employers will be able to defend themselves when accused of punishing employes for union activity.
The case arose in 1979 when Sam Santillo, a Massachusetts school bus driver, was fired while engaged in Teamsters organizing activities at Transportation Management, a firm that provides transportation to school districts. The company said Santillo broke a number of company rules by taking unauthorized coffee breaks and leaving the keys in the bus.
But Santillo charged his employer with firing him for union activity. Under the National Labor Relations Board's interpretations of federal labor law, a showing that union activity was a "motivating factor" in a dismissal places the burden on an employer to show by "a preponderance of evidence" that the employe was fired for reasons unrelated to the union activity. Transportation Management challenged that interpretation in court.
Siding with the company, the 1st U.S. Circuit Court of Appeals imposed a much easier burden on employers, requiring only that they present some evidence that they had a legitimate reason for such dismissals.
The NLRB appealed to the Supreme Court, saying the lower court action conflicted with five other courts of appeals.
The court also agreed yesterday to enter a dispute (New Mexico, et al vs. Mescalero Apache Tribe) over the regulation of fishing and hunting on Indian reservations.
In other action, the court yesterday issued its first signed opinion of the term, a unanimous judgment written by Justice Sandra Day O'Connor, holding that aliens who temporarily leave the country jeopardize some of their legal protections under U.S. law.
The case stemmed from an attempt by the Immigration and Naturalization Service to expel Maria Antonieta Plasencia, a Salvadoran. Plasencia had resided legally in Los Angeles since 1970 but traveled to Mexico in 1975. Upon her return, she was arrested for bringing in illegal aliens. The INS then moved to expel her.
If she had never left the country, the government would have owed her a full "deportation hearing," with elaborate procedural protections. Aliens entering the country receive only an "exclusion hearing," however, with fewer safeguards for the accused. Though she was actually reentering the borders, the INS treated Plasencia as an entering alien and gave her an exclusion hearing. She appealed successfully to the 9th U.S. Circuit Court of Appeals.
The Supreme Court agreed with the INS yesterday (Landon vs. Plasencia). An exclusion hearing is appropriate in Plasencia's case, O'Connor said. She returned the case to the lower court, however, for consideration of whether the exclusion hearing offers adequate protections for aliens.
Justice Thurgood Marshall, in a separate concurrence, said the exclusion hearing procedures are inadequate under the due process clause of the Constitution.