December 10, 2012
Is AIG's Consent Decree Reporting A Public Record?
Posted by David Zaring

It looks like the DC Circuit will say no, in a case of interest to those bemused by the massive number of deferred prosecution agreements signed by corporations in white collar crime/securities violation situations.  Sometime those DPAs include corporate monitoring requirements.  One enterprising reporter requested AIG's consent decree monitor reports after the firm went belly-up, hopeful that it would tell her something about the financial crisis:

AIG agreed to the final judgment in Washington federal district court in November 2004 with the SEC without admitting or denying the allegations, rooted in transactions between AIG and PNC Bank. The company agreed to give up $46.3 million in profit in the SEC civil action. DOJ entered a deferred prosecution agreement with AIG that same month in federal district court in Pennsylvania.

The terms of the deal with the SEC required AIG to hire an independent consultant to, among other things, keep tabs on the work of AIG's "transaction review committee." The committee was tasked with reviewing transactions that "involved heightened legal or regulatory risk because of the dangers of questionable accounting by counterparties," AIG lawyers said in court papers.

It would be interesting to know what that consultant thought about all of AIG's unhedged credit insurance activity, wouldn't it?  But is it a judicial record?  Even though the court never saw it?  It sounds like the DC Circuit will not conclude that keeping the report in camera is akin to holding private trials.  And more's the pity for those who want to know more about the collapse of AIG ... or the usefulness of corporate monitoring consent decrees.

Administrative Law, Financial Crisis, Securities, White Collar Crime | Bookmark

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