Falcone Settlement May Be a "Harbinger" for a Significant Change in SEC Settlements

In August, Phil Falcone, billionaire hedge fund operator of Harbinger Capital Partners, agreed to an $18 million settlement with the U.S. Securities & Exchange Commission.  The case isn't so significant for the specific allegations of wrongdoing asserted by the Commission against Falcone.  Rather, the case may signal a major change in the SEC's settlement position in high profile cases.  In July, Falcone negotiated a settlement with the Staff that called for the same financial remuneration as the August settlement, but did not include an admission of wrongdoing and included only a two year ban from starting a new hedge fund.  Commission Chairman Mary Jo While, in an unusual move, rejected the Staff's recommended settlement as too lenient.  Historically, recommendations by the Staff are rarely rejected by the Commission.  The new settlement, approved by White and the Commission, included an admission of wrongdoing and a broader five year ban on work in the securities industry. The questions raised by the settlement are (1) does the settlement suggest the SEC will demand more in settlement going forward? (2) will admissions now become a deal point that the SEC demands in settlements regularly? (3) if so, when will admissions be required?  (4) will longer and broader bans from participation in the securities industry become more common?  The admission issue in particular may be a major stumbling block for settlements because it may leave the settling defendant largely defenseless in parallel private civil litigation in many cases.